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Halloran made ICANN’s first chief data protection officer

DomainIncite DomainIncite: ICANN lifer Dan Halloran has added the title of chief data protection officer to his business card. The long-serving deputy general counsel was named ICANN’s first CDPO on Friday, continuing to report to his current boss, general counsel John Jeffrey. Privacy is currently the hottest topic in the ICANN community, with considerable debate about how […]

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UDRP and the ACPA Differences, Advantages and Their Inconveniences

CircleID CircleID: Along came the Cyber-squatters with the dot COM boom

One problem with the Internet, non-existent before 1994, is the confrontation between persons who, either intentionally or unintentionally, create an address on the Internet which includes someone else's trademark. — Michael A. Daniels [1], Chairman of the Board for Network Solutions Inc. (July 1999)

With the difference of just a month the Anti Cybersquatting Consumer Protection Act (ACPA) was enacted in November 29, 1999 while the Uniform Domain Name Dispute Resolution Policy (UDRP) of ICANN was approved in October 24, 1999. While any decision to pursue cyber-squatters under the ACPA or the UDRP belongs to the trademark owner, the attorney who advises the trademark owner should have a good working knowledge of the benefits and weaknesses of each method.

The UDRP and ACPA differences – their advantages and inconveniences

The ACPA and the UDRP provide two separate and distinct methods for resolving domain name disputes. Both alternatives have many critics and proponents, but the true value of each will ultimately be determined by how well each combats cyber-squatting. Separately, the UDRP and the ACPA will probably work well to defuse most of the cyber-squatting that is currently invading the Internet. If combined together the UDRP and the ACPA can be a cost saving and effective way to prevent cybersquatting with the top-level domains (TLDs), the country codes top-level domains (ccTLDs) and the future new generic top-level domains (gTLDs). Nonetheless, neither is specifically tailored to be more effective for any specific case, but each one provides noticeable benefits to different types of cases.

Because the UDRP is less expensive than litigation, ICANN's UDRP is probably best suited for small businesses and trademark owners that are merely attempting to stop the use of their trademark. This method will also be helpful to those trademark owners who are fighting registrants that registered their domain names prior to the enactment of the ACPA, because under the ACPA, the trademark owners would not be able to receive damages.

Litigation under the ACPA [2] will be better suited for celebrities, i.e., Tom Cruise, Brad Pitt, etc., and for large companies seeking damages. Also, the 'in rem' proceeding seems enticing, but the well-advised counsellor should note that this proceeding is used only in very specific circumstances. The downside of ACPA lawsuit, is that lawsuits are extremely expensive, time-consuming, stressful and uncertain.

Considerable investment is required in terms of a good attorney and it can take years to get a resolution as to be successful in an ACPA lawsuit, the trademark owner must prove:

(1) that the mark is valid;

(2) the mark was distinctive when the site was registered; and

(3) the domain is identical or confusingly similar to the mark.

(4) the website owner registered the site in bad faith in order to profit from the mark;

The 'in rem' provision in the ACPA lawsuit is limited to the United States because ACPA is a U.S. Statute, hence the concerned trademark business needs to have substantial ties to the U.S. in order to bring a case under the ACPA lawsuit in U.S. Courts for example CNN news Vs CNN china.

If speed and cost efficiency are the two most desirable objectives for the client, then the UDRP is the best alternative. If these two objectives are not the primary concerns, then the ACPA may be a better alternative.

Some of the major drawbacks [3] of an UDRP proceeding is that there is no possibility of monetary damages in a UDRP proceeding. This is probably the major reason that some individuals or organisations prefer to take their chances with a lawsuit. Also, there is no opportunity for investigation, like there is in a civil lawsuit. The arbitrator's decisions are mandatory in the sense that accredited registrars are required to take the necessary steps to enforce the decision, such as transferring the concerned name. However, under the UDRP, either party retains the option to take the dispute to a court for independent resolution. Thus, it is possible that the dispute will not end at arbitration.

Another consideration focuses on when the domain name was registered. If the registration date is prior to the enactment of the ACPA then statutory damages are unavailable, making litigation appear financially less interesting. The UDRP applies to domain names registered prior to the ACPA, but the UDRP only applies to top-level domain names. Country code domain names are not covered under the UDRP and, in those cases, the ACPA is the only option. If the client merely wants the domain name transferred or cancelled, then the UDRP makes more sense economically (so long as the domain name is a top-level domain name). The ACPA provides for transfer and cancellation, but these remedies are only available once the client has gone through the legal process and thus, accrued attorney fees and court costs. Also if the registrant is unavailable or cannot be found, then the ACPA is the only remedy that is available to the client. It can be argued that the UDRP has a comparable method because when a registrant does not respond to the complaint the proceeding continues and judgement is rendered without a response.

Of course if damages are important, the ACPA is the appropriate method for battling the cyber-squatter. If time is most important and no injunction is necessary, then the UDRP may be more appropriate. If time and money are not important and the client does not care whether he receives damages or not, then either may be chosen. It is interesting how a simple choice between two options can become a complicated decision. This underscores the fact that there are no absolutes in the law and that advising a client regarding which avenue to take when battling a cyber-squatter is no exception.


[1] Internet Domain Name Hearings, prepared testimony of Michael A. Daniels, Chairman of the Board for Network Solutions, Inc. (July 1999), available at http://commdocs.house.gov/committees/judiciary/hju63594.000/hju63594_0f.htm

[2] Diane L. Kilpatrick, University of Houston business and tax law journal (2002) http://www.hbtlj.org/v02/v02_kilpatrick.pdf

[3] Sarah Bird, 'Trademark Law and Domain Names: ACPA or UDRP?' (March 2008) available at http://www.seomoz.org/blog/trademark-law-and-domain-names-acpa-or-udrp
Written by Duksh K. Koonjoobeeharry, Team Lead, Open Source Geek, Internet Legal ResearchFollow CircleID on TwitterMore under: Cybersecurity, Domain Names, ICANN, Internet Governance, Law, Policy & Regulation, Top-Level Domains, UDRP

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This Ethereum and Cryptocurrency Backed Micro-loan and Micro-credit Company is Disrupting Banking

The Frager Factor The Frager Factor: Mysterious Mac Malware Has Infected Victims for Years; New Research Report Reveals Trends and Tactics Used in Ransomware Demands; 5 Things my Father Taught me about Life; In 1 Short Sentence, Apple CEO Tim Cook Gives Brilliant Advice for Career Success; ​The one question you must ask yourself to be successful; The process of creating a web hosting service; KKR to Buy WebMD for $2.8 Billion;

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Domain Shane’s Daily List of Domains at Auction for Sunday July 30th

Domain Shane Domain Shane:
Crypto is undoubtedly hurting the domain industry right now.  People that were searching for domain names are now trying to “trade” cryptos.  Putting their money somewhere else.  I think it has very little effect long term and in some sense I really like it because I have less competition for names.  Most of the people in this industry are straight up gamblers.  Not business people.  They are looking for quick money.  A quick flip.  Crypto draws those types of people.    With the recent volatility and upward movement the crypto casino is open and at full capacity.    I am a gambler as well but its just not my thing…..yet.   I would love to kill it but 3X returns aren’t worth the risk for me.  I can get that in options trading and I feel much more comfortable with my accounts in that world. I don’t feel like its going to get stolen and I don’t have to have two keys to get to my money.  I also understand the options market much better.
But GDAX is actually very intriguing to me.   It’s FDIC insured and is essentially the same as my stock trading platform.    I’m going to explore it a little but it won’t be replacing my domain investment money but my trading money.   I’m still a big buyer of domains right now and until I stop having profitable years I don’t think that will be changing.   The only difference is maybe I’ll make a little money in crypto to buy bigger names.  Enjoy your Sunday. Here are today’s names. Click for most recent price  
Quote of the Day:  “It’s hard to do a really good job on anything you don’t think about in the shower.” —Paul Graham
Domain of the Day:  FreeBitcoin.net   Met reserve.  Doing MUCH better than a norm dot net lately
Namejet Domains
MIHO.com    Spanish speaking users use this as slang for Mi Hijo, “my brother” .  And a very nice CVCV.com
DNCB.com  Good , Western letters.  I think they are good investments.  Others think the are not.  You do your own homework and we’ll talk about it in 3 years and see who did the best
CryptoMe.com      Crypto names are the hottest names out there.  And so were 3D printing at one point
CoolFood.com  1998 name.   I like my food hot
TheSheath.com    Good brand with no bids
LittleFlip.com  Sounds like a Rapper.  Or a thing you drink your coffee out of
Sedo Names at Auction
7306.com   No 4 on this one.  Will be interesting to see a new value of NNNN.com with a zero
CryptoTicker.com  I wish I would have thought of this one.  Got a very nice opening bid
 Godaddy Domains That I Like With Multiple Bids
xRocket.com   Elon Musk is going to outbid you.  I see his handle.  Bidder 11
BrushCreek.com     Nice brand with some age. 1995 domain.  I think my grandmother would certainly buy a sweater there
Phuber.com  Fuber with a PH.  You’ll be saying it a lot but a nice little brand with the Uber sound
MrNobody.com   I think you’re somebody.   1997 domain
PageDoctor.com  Movie script editor.  Book editor.  All come to mind
Haylex.com   I used to be able to hand reg these types.  Now look at them
INYN.com  I like the NY in this one.  And the ending in N which is National or Networks
Kizi.net   Interesting to see if CVCV.nets will increase in parallel with the dot com
CabinetRefinishing.com   The best money spent is in the kitchen and bathroom.
YourPetHatesYou.com     172,000 backlinks.  And he does
BackyardWedding.com   15 years old.   Not sure of the percentage but I would imagine there is a large percentage of weddings in the home
GVRX.com   VR in the middle.  That usually is enough
7721.cc    NNNN.cc still investment worthy IMO
Depreciation.net    Accelerated depreciation is my friend in business
Domains That I Like With One or No Bids 
StatPak.com Looks like a wordpress add on
KoreanRadio.com Korean’s love their technology and their music. 1998 domain
VintageCaps.com I have a whole closet full of them. Anyone need an opening day Florida Marlins hat?
IcePub.com They already have the Ice Bar why not the Ice Pub? Price is less than a few beers
KickAsphalt.com I already see these on shirts for an asphalt company
WaterJam.com Concert at the water park
TheVeep.com Term best known because of the HBO show VEEP
PlantStuff.com I think you should. Its good for the environment. And they are pretty
FootRight.com Great pediatrist or insole company name
StorageBoost.com iPhones certainly need it since there is no storage upgrades. Good app name
CrowdSide.com For $12 its not too bad of a crowd task name
HydroBeat.com Sounds like a shower radio…..and it is
Conjuring.com Closing today but not meeting reserve
Other Domains With Bids
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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How I’m getting $1,500+ thanks to the NameJet audit

Morgan Linton Morgan Linton: I’ll start by saying, no, I am not getting some kind of refund relating to bidding in an auction that was proven to have shill bidding taking place on it. While NameJet is doing an internal audit to determine if shill bidding has been impacting their auctions, it looks like they’re also uncovering some payments […]

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Be careful of potential Payoneer phishing email

TheDomains TheDomains: Be careful if you use Payoneer of a phishing attempt going on. I received an email from what looks to be Payoneer. But when I look at the bottom of the email, it says: Note: If clicking Continue fails, please click the entire link below : http://payouts.payoneer.com/PayoutPage/Gateway.aspx?PD=9SJ14f39L91DKM8Y    Continue But when I place my cursor […]
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No Dates for the Next gTLD Round Yet, Says ICANN

CircleID: According to a letter sent from ICANN's chair to the Registries Stakeholder Group (RySG) this week, the agency will not be setting a date for the next round of new gTLD applications anytime soon despite keen interest from registry operators....
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Domain Shane Domain Shane: A comprehensive look at the final auction prices, closeouts and more from the auction list posted on July 28, 2017. 
If there is an asterisk (*) next to a price, it means that the name was at auction from a private seller (rather than an expiring name) and may have had a reserve.  I’m only showing where the price was when the auction ended, but the name may not have sold if a reserve was in place.
Save Money With Daddy Bulk Domain Registration

Top 10 Namejet sales for yesterday as listed on Namebio.
shanshu.com $20,000
improb.com $2,600
goldrates.com $2,099
cdhy.com $1,500
cpjk.com $1,300
intermet.com $1,020
ffyh.com $938
mcrn.com $930
aquaclub.com $851
radioguide.com $809

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