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Mike Berkens has a great post that I think everyone who has invested in domain names should read. Large corporations have been trying to take our generic domain names for us for some time via UDRP, and the Snowe legislation will make it much, much easier and even less expensive.   Just to reiterate the most potentially damaging section of the Snowe legislation in case you might have missed it:
SEC. 3.(b)(1)(A)
“…such domain name is or contains the identical name or brand name of, or is confusingly similar to the name or brand name of a government office, nonprofit organization, business, or other entity;”

In short, this is considerably more broad than the Lanham Act, which targets cybersquatters from owning trademark-related domain names. The bill was presented as a “Anti-Phishing” bill, but you wouldn’t have to be involved in phishing or anything nefarious to have your domain name taken under this provision.
A company can claim that your generic domain name is confusingly similar to their name, and they can ask the Attorney General to go after the domain name owner.   The owner can be liable for up to $6,000,000 (yes, SIX MILLION DOLLARS) in damages. The threat of a lawsuit like this will have a severe impact on domain values. Who would spend $10k on a domain name if a larger company can poach it?
As I see it, the Internet Commerce Association is the only group standing up for domain investors. Sure, other large domain companies have much to lose, but we can’t rely on them to lobby for us.   Most will lobby for their own purposes.   When a large company files a UDRP against a trademark domain name that is making good PPC revenue, do you see the parking company help the owner defend his name so they can continue monetizing it? NO. So why should you rely on large companies to foot the bill?
The funny thing is that domain owners are mostly entrepreneurs trying to start their own business online. They are real go-getters. From the looks of Mike’s post, it seems that most domain owners are sitting on their hands. Why? Please tell me why you aren’t joining the ICA.
This isn’t a fund to pay for Rick’s next floral shirt or another addition to Frank’s palace.   THIS IS TO PREVENT THE SNOWE BILL FROM BEING PASSED TO SAVE THE DOMAIN INDUSTRY!
If you have no good reason not to do it, please join the ICA or make a donation – it’s 80% tax deductible. The industry needs everyone to help.
I will also match contributions – up to $1,000. In the comment box, mention Elliot’s Blog, and they will let me know how much I need to send.

Moniker Auction to Benefit Internet Commerce Association

 Moniker  recently announced that they will auction domain names at no cost to benefit the  Internet Commerce Association  at the TRAFFIC East conference in Orlando. This is a great opportunity to help the Internet Commerce Association while earning a tax deduction (for contributors) or enhancing your portfolio (for buyers). Moniker plans to auction the best 5 names in their live auction format, and the remaining names that were selected will be auctioned in the silent auction.Thank you to Moniker and TRAFFIC for supporting the rights of domain registrants by supporting the Internet Commerce Association. Please submit donated names to  Michael Collins  and he will forward them to Moniker.  

Jay: Part of Snowe Bill "Overreaching in its Authority"

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When I first read Jay’s analysis of the Snowe legislation, I was surprised that he wasn’t as concerned with it as many others in the industry. While I am no legal scholar, I’ve been doing my research on the Snowe Anti-Phishing Consumer Protection Act (S. 2661), and there are sections of the proposal that could really hurt small businesses with domain names, like my own. Michael Collins from the Internet Commerce Association and Michael Berkens from Most Wanted Domains both posted their viewpoints on Jay’s Domaintools blog, to which Jay asked follow-up questions.
Later yesterday afternoon, Michael Collins followed up his post and pointed out where the most concerning language lay within the proposed bill. Within hours, Jay responded in the comment section:

UPDATE BY JAY: Michael, You are quoting Section 3.(b)(1)(A) on page 7. You are right about that section. I think it is overreaching in its authority however Section 3.(a)(1)(A) is much better worded. Thankfully this is a draft bill and I will lobby to fix that wording in that section!

It is important that our industry leaders understand how this proposed bill could impact every small company with a domain name. The way it is written could give large companies the tool they need to take away our domain names if they think a name is confusing to their own name. The proposed legislation is dangerous to all domain owners, and it is nice that we will have Jay lobbying on behalf of domain owners.

Letter to My Senators

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One of the best things about living in this country is that we have the ability to appeal to our elected officials in the hopes of having a proposed bill revised before it is written into law. The proposed Snowe Bill (S. 2661) has the potential to severely damage web-based small businesses (and any company that owns a website/domain name), and I am not going to stand idly. The Internet Commerce Association has information on contacting your local elected officials to express your concern about the bill, and I strongly recommend you do so if the bill will impact you. In addition to financially supporting the ICA, I have also emailed my senators, and I am going to send a letter via USPS as well.
Below is a copy of the letter I sent to my senator in New Hampshire, US Senator John E. Sununu. I fondly remember being introduced to his father (former New Hampshire Governor John Sununu), who was very concerned about small business growth in the state of New Hampshire.   Like his father, Senator Sununu is also a proponent of small businesses in New Hampshire, and I hope the Senator will read up on my concerns and take action to alleviate them. This bill will impact anyone who owns a domain name or website if a larger company wants to take it from them. We need to make sure the bill does not pass in its current form.
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Dear Senator Sununu,
I was born and raised in Nashua, New Hampshire, but currently reside in New York City.   In 2006, I created a small business buying, developing and selling domain names, and my company (Top Notch Domains, LLC) is currently registered and located in New Hampshire. I do all of my banking in New Hampshire, and I hope to move back to the Nashua area once my fiancee finishes her graduate degree in New York.   In November 2007, I was able to leave my job at American International Group (AIG) as a Senior Marketing Manager, to focus completely on my domain development and investment business.   I am really living the American Dream.
Aside from always voting in local and national elections, I am relatively uninvolved in politics.   However, I am writing to you today because a bill was recently proposed that in all likelihood will have dire consequences on the domain investment industry and my business, if it passes with the current language.   Senator Snowe recently introduced a bill called the Anti-Phishing Consumer Protection Act (S. 2661) .   While the name of the bill certainly sounds consumer friendly, the law itself opens the gateway for large corporations and/or various government agencies to seize control of domain names currently owned by small business owners like myself, which have absolutely nothing to do with phishing or other deceptive or fraudulent practices.
The two major targets of the bill, phishing and cybersquatting, are both already illegal in the US or against ICANN/WIPO policy.   Over 85% of WIPO cases are won by the complainant, and 99% of all Lanham Act cases are won by the plaintiff, evidence that the systems in place are working. Additionally, most people who are committing these fraudulent acts live in Europe, Asia, and Africa, beyond the reach of the US justice system. I am very much in favor of eliminating phishing and cybersquatting, but I don’t think this bill will have any impact on these illegal practices.
The main concern I have is that the proposed S. 2661 bill would also make it unlawful for any person to use a domain name in connection with the display of a webpage or an advertisement on a webpage, if the domain name is identical or confusingly similar to the name or brand name of a government office, nonprofit organization, business or other entity.   As the owner of the domain names Lowell.com and Salinas.com (among other generic domain names), I am very concerned that this could present the opportunity for potential litigation against these city domain names, even though owning them now is perfectly legal.
On my websites, I make it very clear that each is completely unconnected to the city government to ensure that consumers are aware that my websites are commercial ventures.   My websites are informational guides to the cities, and I am very concerned that both of these cities could conceivably try to seize them, even though both city governments own their respective .gov extension. The language in this bill could put all my hard work and business plans in jeopardy.   I have spent a considerable amount of time and money purchasing and developing these domain names into sustainable businesses, and I believe the language of the bill will enable others to put me out of business as the risk of owning these domain names would be too great.
Senator Sununu, I am asking you not to cosponsor S. 2661 or to vote in favor of it in its current form.   I am asking that you oppose this legislation until its redundant, unbalanced, and unnecessary trademark-like provisions have been removed.   The Internet Commerce Association, has put out a well-written paper on how this bill will impact my entire industry, and they are willing to work with you and Senator Snowe to revisit the language.   I would sincerely appreciate your review of the ICA website and your efforts to improve the language of the pending Snowe bill.   If the bill passes as is, I am afraid that I will lose my business.   Please help.
ICA Position Paper:   http://www.internetcommerce.org/Snowe_Bill_Threatens_Domain_Name_Registrants
Best Regards,
Elliot J. Silver
Top Notch Domains, LLC

Report: Snowe Bill "Trademark Legislation on Steroids"

From ComputerWorld:

An antiphishing bill that was introduced in the U.S. Senate last week could end up being used by large holders of trademarks to unfairly wrest legitimate domain names away from small businesses and individuals, according to a trade group that represents domain name investors and so-called direct search companies.

Check out ComputerWorld for the entire article.

I have spent thousands of dollars developing my domain names in addition to the cost of acquiring these names, and this bill has the potential to make it easy for companies to take them from me without much trouble. I have been careful acquiring domain names that do not infringe on the marks of other companies, but in the end, I could get burned because of this legislation.   It simply isn’t fair to small-time entrepreneurs like myself.
From what I can tell, the Internet Commerce Association is our best chance at getting the bill changed. They have a great staff working to protect the rights of people in the domain industry, and we need to support them. Please consider becoming a member of the ICA or making a (tax deductible) contribution. Now is the time we need to step up and organize.

ICA Auction: Get Your Bids In

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There are just under 24 hours to go in my auction for PuertoRicanVacation.com, which currently has a high bid of $300. All funds from this auction will go to the ICA to help protect the rights of domain investors. The auction is being held on Nameade, a new domain auction website. They are giving the ICA $1,000 on top of the high bid price for the domain name. This will be a win/win for all.
The auction ends on Wednesday, March 5th at 3pm.

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