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Commodifying Words and Letters in the .Com Space

CircleID CircleID: Words (and by extension their constituent letters) are as free to utter and use as is the air sustaining life. No one owns them. There is no toll fee to be paid to dictionary makers who curate them. There are, however, two carve-outs from this public domain, namely words and letters businesses use as designations of origin for their marketplace presence, protected by trademark law; and words and letters arranged expressively by authors, protected by copyright law. The rights accruing to persons under these carve-outs — trademark more ancient than copyright (circa 1610) — have their roots in statutory and common law.

Another carve-out of more recent origin has emerged based on contract rather than legislation relating to the registration of domain names. The first to register words and letters as domain names essentially owns and controls them for the duration of their registrations, which could be unending with renewals. It will be recalled that when the Internet Corporation for Assigned Names and Numbers (ICANN) implemented the Uniform Domain Name Dispute Resolution Policy (UDRP) at the end of 1999, there were approximately 7 million domain names. Today there are over 340 million domain names; 142.7 million of which are country code domains, approximately 127 million are in the dot com space and New TLDs account for approximately 26 million. The precise current counts can be found on the Verisign website; counts from 1998 to 2009 can be found at http://www.zooknic.com/Domains/counts.html.

The question is, who is acquiring all of these domain names and for what purpose? There are two principal groups of registrants of domain names, namely commercial businesses (including mark owners) and domain name investors. Businesses acquire domain names to create or maintain a presence on the Internet corresponding to their presence in the actual marketplace. In the main, they register the domain names they need.

In contrast, domain investors (as distinguished from cybersquatters) from the nascent years and thereafter steadily expanding their business models have been active in vacuuming up every word in general and specialized dictionaries as well as registering strings of arbitrary characters that could also be acronyms. What they have done and the reason for doing it (and continue doing particularly in the dot com space) is summarized in Steve Forbes' 2007 press release (an age ago, but no less relevant), namely that the Internet had created a new market analogous to the market in real property: "Internet traffic and domains [he said] are the prime real estate of the 21st century. This market has matured, and individuals, brands, investors and organizations who do not grasp their importance or value are missing out on numerous levels."

This means (as investors see it) that domain names are not just addresses in cyberspace; they are "prime" properties. As the numbers of registered domain names held by domain investors have increased, the free pool of available words for new and emerging businesses has decreased. Put another way, there has been a steady diminution of the public domain of words and letters for use in the dot com space that corresponds in reverse to the increase in the number of registered domain names. This is not just anecdotal exaggeration.

The situation I'm describing for the dot com space is made explicit in Verisign v. against XYZ.com, 15-2526, pg. 9 (4th Cir. February 8, 2017). The evidence in that case indicated that "99% of all registrar searches today result in a 'domain taken' page." The Court noted further that "Verisign's own data shows that out of approximately two billion requests it receives each month to register a .com name, fewer than three million — less than one percent — actually are registered."

The mass acquisition of domain names (again, I'm referring in particular to the dot com space) has resulted in commodifying words and letters (in essence locking them up) for the purpose holding or using them for profit; in essence transforming them into merchandise. This is reflected in the booming market for domain names by auction and direct sales from "supermarkets" holding hundreds of thousands of domain names. The impact of this commodification is particularly felt by new and emerging businesses seeking corresponding domain names in the dot com space for the marks they wish to be known by. Where once words and letters were freely available from the word hoard of centuries, they are now locked up.

While the non-statutory diminution of the public domain is an extraordinary development, acquiring domain names speculatively or holding them for monetizing or merchandising is not unlawful. This is a core principle of the UDRP; and no less so under the statutory regime of the ACPA as long as there is no evidence of capitalizing on the mark. Businesses whose market presence postdate the registration of domain names that by happenstance correspond to their prospective or newly minted marks have no superior rights (and no actionable claim) unless the domain names are transferred to successor registrants who unwittingly use them in bad faith. I'll return to this in a moment. Whereas as original registrants are protected; successors can be exposed.

The observable experience is that domain investors (as original registrants) are careful to use their assets in such a manner that no inference of bad faith registration can be drawn from their use or non-use. They succeed in retaining their registrations, for example, by using the domain names for their semantic (that is, their conventional meanings) rather than their trademark value or holding them for resale without offense to the test articulated in Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO February 18, 2000).

Clearly, emerging businesses have to adjust to the new reality of words and letters locked up by investors. It is particularly difficult for owners whose marks postdate registrations of corresponding domain names because they have no remedy under either the UDRP or (in the U.S.) the ACPA. Notwithstanding this, mark owners rashly continue to file complaints that are invariably dismissed mostly with sanctions of reverse domain name hijacking. In their disappointment and threaded into their arguments for bad faith, they have described the prices for domain names variously as "unreasonable," "excessive," "disproportionate," "exorbitant," and even "outrageous." See my earlier comments, "Timing is all: Cybesquatting or Mark Owner Overreaching?” It may very well be true, but it's irrelevant.

In the past two or three months, there have been several UDRP complaints of this type. The latest example of mark owners tilting against windmills is the acronym "DCAC" — Denny Cherry & Associates Consulting, LLC v. Azeras LLC, FA1702001718995 (Forum April 16, 2017) — and the word string "myspectrumnews" — Charter Communications, Inc., Charter Communications Holding Company, LLC and Charter Communications Operating LLC v. Perfect Privacy, LLC / Sheri K Corwin, D2017-0040 (WIPO April 19, 2017). First use in commerce for both Complainants postdated the registrations of the domain names. Of note is that the Respondents in these cases are the original registrants; had they been successor registrants postdating the trademarks the facts would have favored Complainants.

Whether intended or not (although it seems more likely that it was), ICANN's opening up of new spaces on the Internet (the equivalent in real estate terms of opening up vacant land) by expanding the number of generic top-level domains has relieved (to some extent) the situation for new and emergent businesses. The same words and letters unavailable for use in the dot com space are available for use in other spaces. This may not be a happy situation since dot com continues to be the most desirable space, but nevertheless, this is the market reality.

A fair question may be whether owners of marks postdating the original domain name registrations can ever claim rights to words and letters locked up by the original investors? Yes, as against successors. This is so because, in the interim between original acquisition and today, the facts have shifted in mark owners' favor. What were lawful registrations before corresponding marks, now infringe third-party rights. As later investors acquire portfolios from early investors, there will undoubtedly be a percentage of domain names composed of words, letters, and phrases that will have become challengeable by mark owners with subsequently acquired statutory rights in those terms. If a "supermarket" is holding domain names as successor from earlier investors that have become identical or confusingly similar to trademarks, it may very well be in breach of its Representations and Warranties under Paragraph 2 of the Policy. This happens in particular to later investors who have acquired portfolios of domain names from early investors without examining each one for possible infringement of third-party rights.
Written by Gerald M. Levine, Intellectual Property, Arbitrator/Mediator at Levine Samuel LLPFollow CircleID on TwitterMore under: Registry Services, Top-Level Domains

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New Domain Ninjas | China and eclipses

Whats Your Name Whats Your Name: Another month has flown past, and in that time we’ve discovered more ways that Name.com customers are using New Domains to create memorable online epicenters for their brands. chinatt.news Hong Kong-based website chinatt.news offers local news to a relevant audience. The .NEWS domain is a great way to indicate to readers that the site is a quality […]
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Upcoming Domain Name Industry Events & Conferences

DomainAssets.ca DomainAssets.ca: After attending another successful Namescon domain industry gathering in January, I would like to give you a brief listing of some upcoming domain industry events you or your company may wish to attend. DNSeattle.com – May 25, 2017 – a domain industry meetup organized by DomainSherpa’s Michael Cyger. This annual gathering in Seattle is a

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Marissa Mayer Set to Receive $186 Million for Failing; Uber’s C.E.O. Plays With Fire; Reclaim Your Commute

The Frager Factor The Frager Factor: Six-figure salaries considered low income in some Bay Area counties; Jack Ma: In 30 years, the best CEO could be a robot; Service Faces Backlash Over a Widespread Practice: Selling User Data; What’s wrong with UBI? BuzzFeed is building a team of writers to sell you stuff you didn’t know you wanted; 4 Things Every Entrepreneur Should Know Going In and.. 3D Printing The Next Five Years

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The EPA let NoAttacks.org expire. Then it blamed the new owner for cybersquatting.

Domain Name Wire Domain Name Wire: Your tax dollars at work. Here’s a good example if you want to get a feel for how the federal government can work. For about 15 years, the U.S. Environmental Protection Agency used the domain name NoAttacks.com for an anti-asthma campaign. In late 2015 it inadvertently let the domain name expire. The domain name was […]
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Domain Shane’s Daily List of Domains at Auction for Friday April 28th

Domain Shane Domain Shane: How hard can it be to get the day and date right in the header?  According to my results it must be pretty hard.  I got 2 out of my 5 posts wrong this week.  It shows that my brain is not all there some days after a busy day  The pic below shows I move a lot during the day and could be a possible cause. A typical week is 150,000 steps. Not sure how many the typical domain investor gets.  The nursery has been busier than I could have ever imagined.  We officially did more business on Saturday and Sunday than I did in my first year in 1995.  A whole year in two days.  Running a business is tough.  Running a business that is in hyper growth is exceptionally tough.  Adding employees, infrastructure, roles, and procedures while in constant motion is probably the most challenging thing I’ve experienced.   Fortunately at the end of each day I get to end it with millions of plants and peace and quiet.  I can just walk into a greenhouse and sit down in the middle of gorgeous plants.  I won’t lie, I walk out into the property almost every night and can’t believe that I got to make the decisions that built everything around me.  How big its become.  When I have to rent out a whole restaurant for the company party instead reserving a table.  It’s humbling but at the same time I have no problem sharing that it was done with a lot of hard ass work and good decision making. Two things that most people lack. Here are today’s names   Click for Current Price   And a special shout out to Richard for the kind words.  Made my night last night.
 
Quote Of The Day  “People rarely buy what they need. They buy what they want. – Seth Godin “
Domain Of The Day: ☊.com    Yup, the ever rare pictograph headphone emoji domain.  Registered back when emoji dot coms were allowed.
Godaddy Domains That I Like With Multiple Bids
PGH.org   21 years old.  Good letters for any extension
PlaneTravel.com  The only reason I like it is because of the age.  A bit generic for me otherwise
CompatibilityTesting.com  I do it for chemicals, probably works for people two.  Originally registered in 1999
PUMH.com  Not a big fan of the U but otherwise, pretty nice.  17 years old
EquityInvestor.com   Money for equity. The old American way
HZQ.net   At $3K, just like you thought it would
579568.com,683289.com766329.com and 899966.com  With the last being by far the best with the 9s
SquirrelGuide.com   Was a pretty funny site about buying squirrels and everything squirrels
DragonPoker.com   Poker names are still selling
LostOrStolen.com   Pretty much describes everything that dissappears
HowsMyDrifting.com   205,000 monthly visits if you believe Godaddy

Domains That I Like With One or No Bids
ThumbWorld.com Most of the new cell gaming is all thumbs.
InstantNinja.com for $12 you can become a ninja
EnergyMist.com One spray, energy all day. Free slogan
SolarTrail.com Nice solar name for $12. No bids
GrowALot.com All plant and agriculture names are now canna names
Rutol.com All 5L.com that are pronounceable are worth $12 IMO
WeatherDetective.com Aren’t that what meteorologist are?
4160.org Evidently some NNNN.org have no value. No bidders
Other Godaddy Domains With Bids
2ln.netAccessCloud.comAndean-inc.comAngellosatvinc.comAugmentedTour.comBlog-br.comBoopadoo.netBotMatrix.comCalima.comCappysPizzeria.comCasiniRanch.comChantelemma.comChefleeva.comCooking-Chefs.comCultureTour.comDepartToTravel.comDorianSoft.comElksAtBassRocks.comEvergreenInn.netFiatCars.comFishingCT.comFlight-History.comForks-Web.comFullCircleHair.comFXProsystem.comGoldenNeedles.orgGroundswellSociety.orgHalloweenPhotography.comHillsideHouseBB.comHistoryOfMarriage.orgIndianJGastro.comInnovate-NorthState.comInsidePoolMag.comInspireSmartSuccess.comItalyHoneymoons.netJerryDoyle.comJRTM.netLKBR.netMaryMargaretSmith.comMCAProof.comMcclureWebDesign.comMMognation.comMontebelloBarnyardZoo.comMountainBike-Review.comNewsyType.comNianting.comNikosUsedCars.comNorbic.orgObscure-Couture.comOQEZ.compaquetesislamargarita.compcmoddingmy.comPlanetServe.comPokerVP.comPornsky.bizPrestigeCustomBuilders.comPureExpo.compvvfd.comQQTJ.netR4Y.comRadioDramaReviews.comRecognitionRewards.comRemoteCourse.comRiverside-Golfclub.comRolinz.comRusticChicWedding.comRUV.coRVIY.comsantacruzcountycap.orgsbdwebdesign.comScienceray.comSimplyBid.comsmallbizprowebsites.comSoftDomains.comStaffingTheCity.comStopaCrack.comSWBellC.comTDubel.comTechShift.netTeluguDictionary.comTerraVisionTravel.comTheFinalSeason.comTopCeleb.comTrailFlare.comTravelogWithJem.comTunmian.comViceBustingDiet.comWeddingPhotographersUK.comWeddingsBySashagulish.comWhereCoolThingsHappen.comWhistleblowerDefenseLeague.comWinDriverCellars.comYLNL.net
Namejet Auction
DDPR.com      The Chinese will like the repeating Ds but tough letters for acronym in English
KitchenOutlet.com   All the money is spent in the kitchen
Crutch.com  Fantastic name but probably won’t meet reserve
CHML.com  Good letters. Western and Chinese
LookAway.com   What LiveLeak should be called
36S.com   Pending delete.  Whoever lands this delete is going to get $3500 plus
DeerRun.com  Pretty much a Deer Run in every city
Bansa.com   A 5L.com getting a little love
Lifeblood.com  Good name but zero chance of selling
Have a name at auction and need more exposure? Send me an email. I Charge $10 per name per day. We may be able to help. If you have an auction you want to promote, email us for details.*All names chosen by me, Shane . (ie you click through and purchase a name you like) or an occasional paid listing. Everything I say is based on my own research or is opinion. Do your own due diligence. That means look it up yourself if you don’t think the stats or my opinion is correct. I hand choose my names but I am paid to make this list by the auction houses, individuals that are auctioning names, and Godaddy affiliate links. Keep that in mind and only buy names that YOU think are good
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3 tips for startup founders negotiating their own domain name deals

Morgan Linton Morgan Linton: Today I was talking to a startup founder who was trying to figure out the best way to negotiate a deal for a domain name she wanted to buy. She was in a situation that I think many founders find themselves in, they know they want a specific domain, but don’t know the best way […]

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New SEO study provides further evidence that New Domains can rank well organically

Whats Your Name Whats Your Name: The Domain Name Association recently released a study commissioned from SEO company Web Traffic Advisors to examine the impact that domain choice may have on SEO. You can download the full report here, but we’ve highlighted some of the most interesting points as they relate to New Domains. Google has already verified that New Domains are […]
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Sevan Derderian to lead new Above.com domain brokerage

Domain Name Wire Domain Name Wire: New service will be integrated with Above’s domain management system. Above.com, a domain monetization and sales platform for domain name investors, announced today that it’s getting into the domain brokerage business. The new service will be led by Sevan Derderian. Derderian was previously director of sales for Uniregistry’s registrar business. He also worked for Thought […]
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