From House Hearing: CADNA “There Are Probably Tens of Millions of Cybersquatting Domains” in .Com

At The House Energy and Commerce Committee’s hearing on new gTLDs Josh Bourne President of CADNA’s testified:

“”The U.S Congress should take much-needed action to improve the language of the Anti- Cybersquatting Consumer Protection Act (ACPA), so that it provides proper deterrents against cybersquatting.””

“”Cybersquatting to the left of the dot is already a massive problem; with approximately 200 million domain name registrations concentrated mainly in .COM there already exist millions of brand-infringing domains. We know it is unlikely that the new gTLDs will garner this volume of cybersquatting, but that doesn’t mean they won’t have a significant impact. In reality what we need is an immediate update to U.S. law and a process that not only curbs and deters
cybersquatting in the existing TLDs, but any new ones that are created.”

“At this point, CADNA’s best guess is that there could be around 800 applications in early 2012 during the three-month application period. Of those estimated 800 applications, what CADNA has also come to realize is that likely two-thirds to three-quarters of applications could come from
strategic enterprises that will choose to run their registries in a “closed” way, for their own internal marketing uses and will not make second-level domain names available to registrants.”

“That leaves about 200 to 300 applicants representing communities or acting as entrepreneurs pursuing mainly geographic and generic gTLD strings that will likely be “open” in the sense that they sell second-level domains to registrants, some of whom will be cybersquatters.”

“”Cybersquatting to the right of the dot is very unlikely to occur,  this is a complex application, it’s an expensive process, the planned evaluation appears to be rigorous, and the objection process would certainly allow the owner of a trademark to prevent a party without rights from receiving a contract from ICANN.”

“”Therefore, the after-the-dot concerns for companies with very unique and strong trademarks are mainly related to competition. Will I be at a disadvantage? If I don’t apply and new gTLDs become popular, will my current URLs look out of date?””

In response to a question from Subcommittee Chairman Walden, Bourne just stated that “there are probably tens of millions of cybersquatting domains in .com”,  and that CADNA was discussing revisions to the ACPA with Judiciary Committee staff.

Of course with a little of 100 Million .com registrations to say there are “tens of millions” of Cybersquatted domain names, its obvious that CADNA definition of a cyber sqautted domain is MUCH broader than current law.

This testimony  clearly indicate that CADNA may make a huge push next year for Congress to amend the ACPA with a much broader definition.

As we have noted for years, almost every dictionary word is trademarked, so is every term, phrase, expression, as well as every two and three letter combination.

Comments

  1. says

    Not quite sure about tens of millions. What a lot of politicians fail to realise is that .com is a global TLD and just because a business in the US has the same name as a business in another country but the other business has the .com domain, it does not automatically follow that the other business is cybersquatting.

  2. Michael H. Berkens says

    John

    Well as a good example the representative from the Better Business Bureau testified and its her belief that they have an exclusive and worldwide right to “BBB”.

    Pritz form ICANN noted there were over 50 TM for “BBB” meaning that there were others that had rights in and to that term that could object to the Better Business Bureau application for a .BBB TLD or could also file for the TLD.

  3. says

    @ Mike

    XXX should not be equated with New TLDs. XXX is a sTLD which, the community did not want. Many New gTLDs Communities want their new top level domain. Surveys of Scottish businesses indicate strong support for .SCOT. The ARI survey shows many businesses would prefer to register a tld that is closely related to their industry. NYC, London, Berlin,Paris,Rome have all been looking to get their tld for years.

  4. _222 says

    The diffficulty with giving a more accurate number of “cybersquatted” domains in .com is the whois information. Whois is a joke. Another proud ICANN creation.

    To illustrate with an example, let’s say the mark is “ABC”.

    If asked “Who has registered the trademark ABC?” we can give a fairly specific answer of who has registered it, where it’s registered and in what classes. In the case of the USPTO, we can see who the lawyer is who prosecuted the trademark, the name and address of their firm and the name of the trademark registrant.

    On the other hand, if asked “Who resgistered ABC.com?” we might be able to give more or less the same details. Then again, we might not be able to give any details. This is thanks to whois “proxies”. Or, even more, we might retrieve false details.

    Hence the two sources of information cannot be reliably matched with each other, becaus eof whois proxies. The number of domain names using whois proxies is very large.

    Not to imply whois proxies are in all cases used to evade potential trademark infringement liability; they may also be used by trademark holders themselves for other reasons.

    The ICANN governed whois distributed database is a joke. But keeping it loose like this allows them to make more money. That of course is just an opinion, however it would be easy to test this theory. Set up adequate controls, lift whois privacy in all of .com and watch what happens to registrar income.

  5. John Berryhill says

    “Tens of millions” of them in .com?

    Really Josh?

    No random sample is going to show a 10% rate of cybersquatting.

    Was this statement made on information and belief?

    (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

    (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

    (2) makes any materially false, fictitious, or fraudulent statement or representation; or

    (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
    shall be fined under this title, imprisoned not more than 5 years

  6. John Berryhill says

    Incidentally, while we are on the subject of figuring out who owns things, could someone please remind me who is it that owns the National Arbitration Forum?

    Thank you.

  7. says

    Unless you’re using a domain for your own use, it’s cybersquatting to many people. Anyone who is currently buying or holding domains for the expressed purpose of resale for profit may be legally labeled as a cybersquatter by new laws that are currently being considered by several nations – I’m not saying it’s right, but it’s coming…mob rule will win out. Domain “investing” is too small for the masses to care about and it does nothing but pizz off big companies…they want domainers squashed and they’ll exert great influence via lobbyists to get it done.

    Be careful out there, “investors”….

  8. Michael H. Berkens says

    Vegas

    There is some truth to that, which is why again ALL domain Investors need to throw a few bucks at the ICA the only organization which has a Washington/ICANN presence which is watching out for your interests

  9. Muscle Sprouts says

    I hate when people say things like “probably” when trying to present facts. That means you know nothing. In other words, Josh Bourne is ignorant of the domain market and dynamics therein.

    @VegasDeals …… if you look beyond professional domain investors, you’ll find millions of folks that are “sitting ” on 5, 10, 20, 300 domains. Those folks are common folks and they’ll push back against any “mob rules”.

    The domain investment community is bigger than most realize. I’d bet that Josh Bourne is sitting on more than one domain, maybe his wife, daughter, or someone else in his family is squatting on domains, as he puts it.

  10. says

    @Tom
    Not sure why Scotland could not get their own cc tld. I suppose geo tlds could be somewhat useful. But is it really worth all the trouble? What is wrong with .nyc.us? or .london.co.uk, . berlin.de etc? I though that was what cctlds were for. I think if the program were limited to just geo domains, nobody would have a problem with that. But do we really need .shoes or .music? So that once person or entity can control the entire tld for a specific product or service. It just does not make any sense when there is really no outside demand for such extensions.

  11. says

    So join a parking program and throw up some adsense sites on each of your domain. Who can say what determines not using your domains. Also, a lot of people buy property and don’t build a house on it…Are we going to tell them to return their empty lots for lack of development?

  12. Michael H. Berkens says

    Muscle

    Josh is far from a clown.

    He is a very smart, formidable foe who has the ear of congress and who has testified in front of it several times.

    I have spoken to him as well a few times.

    He certainly is banging the drum hard for the TM groups

    He is also clearly playing both sides of the field as in his main gig at Fairwinds has thrown their hat into the new gTLD ring as a consultant.

    He has a multi-year plan which is in full operation to strengthen the TM laws.

    Don’t dismiss him or take him lightly.

    Your comment about his family is out of bounds and therefore edited out.

  13. says

    @Mike

    ‘Not sure why Scotland could not get their own cc tld.’

    William Wallace tried to make a similar point a few hundred years ago.

    ‘What is wrong with .nyc.us? or .london.co.uk, . berlin.de ‘

    I think it’s an issue of brandibility and then, wouldn’t the owner of .nyc.us,.london.co.uk really just be operating the same sort of business model anyway, just selling third level instead of second?

    ‘But do we really need .shoes or .music? So that once person or entity can control the entire tld for a specific product or service’

    I think these can be great tlds to serve a consumer niche, but the issue of possible monopolization of the niche is a big concern.

    ‘It just does not make any sense when there is really no outside demand for such extensions.’

    Demand really can’t be predicted – no one demanded computers, or automobiles, or mobile phones. But they turned out to be pretty handy.

    And, there are already people who want some of these extensions. The ARI study showed many businesses would have chosen alternative extensions if they had been available at the time.

    But, you know, I’m a big fan of the opportunities, obv.

  14. says

    There will be demand as domains are an infinite market. I think several popular extensions could easily emerge and be bigger than anything we’ve seen so far. However, the vast majority of extensions released will most likely have limited application and be more vanity extensions.
    The serious extensions in my opinion will be the ones that cater to a large demographic of keywords and can succeed at getting support by registries as well as good commercial application for online business. Is there a need for more domain names?, no but will there be demand for more..yes and it should make the internet a much more interesting place to be.

  15. Philip Corwin says

    There is tremendous danger ahead in 2012 for anyone with a domain portfolio.

    Once trademark interests realize that the new gTLD program is moving ahead undeterred, that they will be dealing with hundreds of new gTLDs, that the rights protections mechanisms for new gTLDs will not solve their defensive registration problem,and that Congress is unable to help vis-a-vis ICANN, they will ask Congress to do something it can do — which is to amend the ACPA so that it is far easier to win a cybersquatting suit and so that domain registrants face criminal penalties. The same brand owner energy that went into efforts to halt or slow new gTLDs will be diverted to ACPA “reform”.

    Notwithstanding Vegas Deals’ skepticism that it will do any good, ICA will be in the fight and telling the other side of the story.

  16. _222 says

    Good point Berryhill. WHOIS predates ICANN.

    However, correct me if I’m wrong, but it’s ICANN, via their form agreements, that requires WHOIS information to be collected and submitted.

    What I mean to suggest is that ICANN would surely point to WHOIS as one reason for their existence. They would proudly call themselves stewards of WHOIS and would surely call it valuable.

    My personal opinion is WHOIS is nothing to be proud of and its value as a database of reliable information is marginal at best.

  17. hahaha says

    ” The only way to control the population is to pass so many laws that everyone is a criminal.”

    For example, who doesn’t break the speed limit?

    Another win for the Chinese. They will own all our typos and Americans will be the poorer for it.

  18. John Berryhill says

    “However, correct me if I’m wrong, but it’s ICANN, via their form agreements, that requires WHOIS information to be collected and submitted.”

    Yes it does. But discussions about WHOIS have surely been one of the great time sinks of the ages.

    They did a fairly well documented study of WHOIS accuracy a while back and indicated that something along the lines of 20% of domains use some form of privacy or proxy. The surprising thing was that WIPO had looked at UDRP’s and found that about 20% of disputed domain names use privacy or proxy. In other words, a privacy/proxy domain name was no more likely to be the subject of a UDRP dispute than any other domain.

    That was about the only interesting takeway from the data IMHO.

  19. _222 says

    I hope others took Berryhill J. up on his NAF ownership challenge. Very enlightening. Minnesota Attorney General has all the info. NAF/Forthright has a deal with ICM, correct? Is ICANN going to use them for the URS contract?

    To be clear, I do not think bad WHOIS info is a detriment solely because it *might* thwart efforts to identify potential TM infringers, criminals, etc.

    I just think the WHOIS as a database aimed at providing info about domains is a joke. The only info it consistenty provides is nameservers and registrar. And 50% of that can be gleaned without using WHOIS.

    There is lots of talk about new gtld’s and “branding”. But there’s not much about consumer protection. Behind every brand there should *at least* be an identifiable company or individual, IMHO. And that company or individual should have an address and a telephone number.

    If trademark offices can manage a reliable database of marks and registrants, why can’t registries and their partnering registrars *aimed at business customers* maintain a reliable database of domain labels and registrants? They can. The real question is why *don’t* they?

    My opinion is it’s because they would lose business. Lots of business.

    If you think about it this is more or less the issue that is driving SOPA. People, e.g. outside the U.S., are *doing business* on the web *anonymously*. How do you sue your competitors when they have no physical address?

    Irrespective of any alleged intellectual property infringement, “anonymous” businesses do not create a very safe environment for consumers, IMHO.

    Establishing reputation for an online brand would seem to imply that the company or individual behind the brand was identifiable.

    How many companies and individuals use shell companies or similar methods when registering their trademarks to try to hide their identity and prevent it being associated with a mark (and the brand it might represent)?

    Should domain names that represent “brands” be any different?

    Let’s see how new gtld registries deal with “WHOIS”.

  20. fairbalance says

    Muscle:

    Josh Bourne doesn’t need to understand domain names. He and his Kalorama LLC prefer to buy/sell IP address space. This is a very questionable “business” practice; there are a only a handful of people even attempting it, some of them try to remain as low profile as possible. This is far more sleazy than buying/selling domain names.

    IP address space is allocated for free (theoretically) based on need.

    Both domain names and IP address space cost nothing to produce and pennies to maintain.

    But with domain names, justified or not, registrants pay a fee and if they domainers, they may try to resell at a higher price.

    Selling IP address space is trying to sell something that was granted for free, (theoretically) based on need.

    This address space is supposed to be a public resource, not a business opportunity for Mr. Bourne.

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