When is a Typo Domain, Not a Typo?

I was reading about the Nieman Marcus lawsuit and on a phone call related to the Working Group on Mechanisms to Protect Rights of Others ..  when suddenly it occurred to me that this whole rush to rid the world of typos could eventually head in a messy direction. 

The shortage (and increasing value) of poignant and generic domain names in the coveted .com space has led many new companies to adopt brandable variants of generic words and phrases.  It often costs just registration price to secure an available typographical variant such as Flickr.com or Orbitz.com vs. tens/hundreds of thousands for the real words (better to save that 'name money' for 'development' alot of folks will say) and it is easier to secure trademark rights for a name like "Fuud.com" (selling food) than it would be at the correctly spelled Food.com (USPTO would likely reject as descriptive).

Now any high minded techies thinking: "Well if it wasn't for all the evil hoarding squatters the good names would be available!"  I'm going to stop you right here.  First generic domain registrants (domain investors who own generic names) are not 'Squatters'.  There is a decade of case law that supports the rights of 'anyone' to register a generic domain name and to use the name within the law.  You are not going to wave your magic fairy wand and undo that. Second, generic domain holders of the World (and there are alot of them) are not going to give up names that they have paid collective Billions to acquire for their future use; just because you woke up this morning and want that name. Those are the realities. You can't drive by a vacant piece of land, an unused car in a parking lot, an empty house, vacant office space or unused machinery anywhere in the world that is not OWNED by somebody. Thats capitalism.  And next time you bite into your Big Mac you should thank God we have capitalism..  lest you wake up from your dream in North Korea chewing on a raw rutabaga.

The point of this post (and I'll get back to it now) is that sometimes domain names that look like typos are more than typos. As the following diagram shows:

Deel.com (not owned by me) may look like a variation of Dell.com but in fact it can also be a brandable variant of "Deal"  the English word for 'discount' or 'bargain'. This is not an isolated example.  I own eShopping.com and paid alot of money to acquire that name at auction because it is one of the big "e" names (email, ecommerce, eshopping  etc.)    But wait!!  The "E" is very close to the "S" on my QWERTY keyboard.  Does that make it a typo of Shopping.com?!  Of course not... if it was, Microsoft's eshop.com would be a Typo of Shop.com ..  Yet the Microsoft Strider typo identification software incorrectly identifies my generic name as a typo.  There is the problem.  A shortage of names and a gradual shaping of the space -- a pushing or tugging by the IP community to label holders of brandable variants as Typosquatters.  Thats just flatly wrong.

How far can this go?  Let me take you back to that phone call I was on where representatives of Yahoo indicated they would try to secure Flicker.XXX as a TYPO of Flickr.com (their made up brand name) during a potential new TLD sunrise period. How ass-backward is that?  A Typo that became a brand, trying to call the generic name a variant of their trademark!  This is a dangerous direction IMO. It runs counter to common sense, counter to case law..  and I for one would like to view 'real porn' at Flicker.XXX not Yahoo's brand of 'Flickr' porn.

Does this un-nerve you? Write your congressman.  Better yet, join the Internet Commerce Association at the Targeted traffic conference in Vegas and we'll send a very nice lobbyist to personally visit him (or her) on your behalf.

Comments

[Dave Zan]

That's just the way it is, Frank. People can believe A while others can believe B, but things can get pretty ugly when people have time and money to impose belief A on B.

We just have to get along somehow, but be ready to fight for our rights and beliefs based on what the law allows.

[Dave Zan]

Davey.. truer words were never spoken, but ultimately right is right. If I can't run out and register Dellcomputer.com to sell Sony Laptops then they shouldn't be able to unseat you for generic variants used in good faith. At the risk of making you my foil on this one "I am just saying there has to be equity, sensibility and balance". Inequitable over-reaching by TM holders creates injustice and without justice, there can be no peace.