Question: We want to know EXACTLY what a cybersquatter IS and IS NOT by your own personal definition - not ICANNs definition or various legal definitions. When is someone infringing and when are they NOT? Give examples.

Nominee Replies

Donald Langenberg - posted on 2000-10-01 20:31:27 As with many forms of socially undesirable behavior, including crimes, it seems to me that intent is the key. Thus, I would define a cybersquatter as an individual or an organization that gains control of a URL in which some other individual or organization might reasonably be supposed to have an interest, with the intent to profit from the URL at the expense of the other individual or organization, or to cause harm to the other individual or organization. Harris Miller - posted on 2000-09-29 13:34:52 I agree that cybersquatting is hard to define but apparent when confronted. In general, I support efforts to protect consumers' expectations by enforcing the limited conditions of the UDRP, including the bad faith criteria. As you know, if outside the parameters of the UDRP, a dispute is handled by courts in the normal course. Fullfilling users' expectations when they use the Web is important. Having said that, I also believe that we know enough now to improve the UDRP. Specifically, ICANN should set some framework to guide arbitrators in a general review function. Generic terms like CREW (or Esquire) in my mind should not be subject to UPRP enforcement. I do not agree with the outcome of that case. Instances where I agree with the decision include the World Wresting Federation or Christian Dior matters, among others. Overall, I think the UDRP has been an important step forward and as a Board member would be active in seeking improvement. Barbara Simons - posted on 2000-09-28 22:28:10 I do not like the word cybersquatting. It is a loaded term, and it suggests guilt, even before any inappropriate behavior has been proven. I feel the same about the use of the word piracy, which is even more loaded. (Real pirates steal goods, as opposed to making possibly illegal copies of intellectual property. Worse yet, real pirates frequently cause physical harm to people, and sometimes even kill them). ICANN should not be responsible for enforcing trademark laws. The only role appropriate for the Uniform Dispute Resolution Policy is in providing fast and cheap arbitration in the case of extreme bad faith registration of a registered trademark for the purpose of resale to the trademark owner or to a direct competitor. All other disputes should be handled by the courts. In light of some well publicized arbitration decisions that ignored some of the key requirements and protections of the UDRP, we need to monitor the arbitration process and to provide explicit guidelines for arbitrators. (An example of such a decision is the Barcelona.com case). While guidelines will not prevent the abuse of the UDRP, they will make it more difficult to justify abusive decisions, and they will facilitate public understanding of the process. The ACM Internet Governance Project, which I created during my presidency, is supporting a study for evaluating the current state of the UDRP decision making process. Karl Auerbach - posted on 2000-09-26 21:05:00 I believe that speculation is an acceptable form of economic behavour. Indeed many of us engage in speculation - we buy real-estate/homes with the expectation of large appreciation of value, we buy securities, we buy fine art. Without speculation, there would probably be fewer new houses built and much less office space available. Domain names are as legitimate an object of speculative investment as are paintings, securities, or land. If some person invests in a domain name with hopes of selling it to someone, that someone has the option of simply saying no and thus forcing the speculator to eat his/her investment. Of course, a speculator might actually *use* a domain name in a way that constitutes infringement of a trademark or that constitutes defamation. In that case a trademark owner, or the person defamed, has completely adequate existing legal means to stop the particular action that constitutes infringement or defamation. To my mind, those who cry cybersquatter are often simply attempting to distract their superiors from noticing that they were derelict in their duties by not obtaining the domain name before the speculator did. So, by my definition, there is no such thing as a cybersquatter. But there are such things as trademark infringers and there are such things as defamers - both of which are adequately defined by existing laws. Simply registering and holding a domain name, without further conduct, is not trademark infringement. Nor is simply offering such a domain name for sale an act that offends against the rights of a trademark owner. Lyman Chapin - posted on 2000-09-26 11:02:10 Cybersquatting seems to be an I can't define it exactly, but I know it when I see it behavior. I consider a cybersquatter to be someone whose purpose in registering or using a domain name is explicitly and specifically to infringe on someone else's rights. Someone else in this context includes private individuals as well as corporations with trademark interests. The rights of trademark holders with respect to domain names are by no means well established as a matter of law, and are not ICANN's business anyway; but to pick two examples from the UDRP archives, I see cybersquatting in the worldwrestlingfederation.com case, but not in the barcelona.com case. In practice, of course, cybersquatting should be an issue only when it constitutes an infringement of law, not when it offends my (or anyone else's) sense of fairness. Lawrence Lessig - posted on 2000-09-26 03:07:08 In my view, someone is squatting when he or she takes a name for purposes of diverting business from one company to another. I do not consider it squatting when someone take a name for a critical purpose, or for an expressive purpose. x-sucks.com is not, in other words, squatting on company x's name. But my view is not the law, and squatting is only a problem to the extent it violates the law. ICANN should not be in the business of clarifying or unifying or changing the law at all. Governments make law; let them decide what squatting is. Emerson Tiller, J.D., Ph.D. - posted on 2000-09-26 00:04:57 There is often no bright line as to what is cybersquatting and what is not. But I think there are some general rules we should be able to agree on. First, generic word domain names (such as current.com or crew.com) should NOT be considered cybersquatting merely because those words are trademarked for particular goods or services. There would only be cybersquatting if the domain name holder established web sites at those domains that either mimicked the trademark holders image or sold competing goods/services with the trademark holder. In that case, it would be a better remedy for the cybersquatter to be ordered to cease the confusing behavior rather than order a domain name transfer. If the domain name holder continued the confusing activity, then the name should be taken away and put up for auction (not automatically transferred to the trademark holder as there may be other legitimate businesses also with trademarks on that word for other goods and services). Second, I think there are some famous and distinct words that the mere registration of those words as domain names by someone other than the trademark holder constitutes cybersquatting. For example, if I were to have registered www.xerox.com, I think that would clearly be cybersquatting and a transfer to the Xerox company would be in order. Third, I think registration of domain names that indicate protest (walmartcanadasucks.com), religion (corinthians.com), or geographical areas (barcelona.com) should not be considered cybersquatting absent an effort to sell competing goods or services with a trademark owner. Cases that I consider cybersquatting and ICANN did too: www.worldwrestlingfederation.com, alcoholicsanonymous.net, christiandior.com. Cases that I do not consider cybersquatting, and neither did ICANN: cartoys.com, comingattractions.com, fuji.com. Cases that I do not consider cybersquatting, but ICANN did: cabalassucks.com, walmartcanadasucks.com, crew.com, esquire.com, current.com, corinthians.com. This last set represents the most troubling aspect of ICANN's UDPR.