Are all Land Developers Robber Barrons?..

...Are all rap musicians gangsters? Are all stock brokers inside traders?..

http://tcattorney.typepad.com/anticybersquatting_consum/2007/09/are-domainers-c.html

The surreal exchange linked above asks the question if all multiple registrants of domain names (domainers) are 'cybersquatters'.  Professor Eric Goldman of the Santa Clara University School of Law just looks bad in this one.

This is a professional who should know better than to try to paint anybody trying to profit with domain names in such an inequitable and unsavory light.

Quote: "Well, that's one of the issues that we're wrestling with in the field is whether domainers are cybersquatters and there's been a strong split of opinion about that topic"..

***FS*** Translation: "Stories of hope and opportunity don't sell as well.. These uneducated folks make more than me .. and I'm tenured!" Let's redefine these entrepreneurs and question their motives."

Quote: "But I'm still wondering, and I still have an open investigation into how many people are really coming to these sites, not because of their fat fingers or their bad typing skills, but because of the fact that these sites are also indexed in the search engines"

***FS*** A simple call to Google will reveal that they aggressively scrub domain parking pages from the Google index.  Google wants to control web-search, and navigation is a part of that. Google gives domain registrants with 'advertising only' pages no-quarter..  and no traffic.  None of my merchantable traffic comes from Google links.. None of the domainers I know get any of their traffic from search engines. Google scrubs them like crazy.. and most don't care. It's not about 'former site traffic'.  Most domainers want organic type-in traffic which comes for the keyword weight, gravity and resonance of the name itself. Not a former site or the activity at a former site.  It's about the drawing power of the name-phrase as a generic beacon of interest.

Quote: "There's a couple of reasons why I'm suspect about the long term viability of people typing in domain names into address bars. First of all, so many people got started doing that because if they mistyped things back in the old days, they would get pop ups and porn. And so a lot of people I think learned not to type in domain names into the address bar.. "

***FS***  Boy are you off the mark on this one. People have been typing domain names into the address bar since the dawn of the commercial internet when parking pages consisted of stick-men holding shovels and "under construction" signs - and still people came back and typed these domain names.  So now that domain registrants are serving targeted advertising and content mated to the subject matter of the name, they are supposed to get "less" visits? You've got to be kidding. How is this experience any different from searching at Google if the domain name paid-search results are themselves "powered by Google"?

Quote: "...So, instead of using the address bar in their browser, they will use a search tool bar or they will use the field at a search engine to type in the exact same text. So, I'm not entirely clear where these people are coming from."

***FS***  ...and they're interviewing you on this?  Aye yay yay... 

Prof..  do I hear a bell?..  because you need some schooling on generic name domaining vs. bold-faced cybersquatting..  Normally narrow mindedness and ignorance don't get my gall..  but you're an educator and I expected some more free-form thinking from you.

The most zesty and inequitable part of the interview goes along the lines of:

Quote: "The trademark owner says if someone is typing in my trademark into their address bar, they are looking for me, and if somebody interposes between the consumer and me, and offers that user the ability to go somewhere else; for example, to my competitors; that person is stealing business from me ..

***FS***  The problem is: not all trademarks are created equally.. and anything can be trademarked by anyone. It depends on the date of the mark,  the class of services.. etc etc.  If somebody gets a trademark on the word "blue" for tshirts in 2007, that does not preclude the domainer and owner of the valuable URL blue.com from selling "paint" or "cheese". It certainly doesn't make that registrant a cybersquatter. Unfortunately, that doesn't stop the holder of the "blue" t-shirt word-mark from trying to unseat the legitimate registrant of the blue.com URL by incorrectly and unfairly maligning said registrant as a "cybersquatter".

Many parties can have a legitimate interest in a domain name for paid search or development and it is not for inequitable, covetous latecomers to say when a domain registrant should develop their name or how that name should be developed.

Accusing legal registrants of valuable generic domain names of running "an illegitimate business" is not a balanced or equitable viewpoint.

To be fair to this nutty professor.. he does redeem himself a bit with this ditty: "in theory, domainers are saying we know that you may have typed in something and we are going to try and help you figure out what you are looking for... That way, perhaps domainers are actually helping consumers get from where they try to go to their ultimate destination."

Again, not all domain registrants (domainers) who try to profit from domain names, deliberately target trademarks. Trademark rights can be claimed by 'anyone' for 'anything' and often those rights "can not" be claimed to exclude others from using the same generic word or phrase for an unrelated purpose.

Many of the domainers I know are essentially the largest trademark holders in the world..  they use intellectual property which they had the foresight to register in order to sell products and services on the Internet. If professor Eric Goldman can be shamed for anything, it's failing to view these large scale commercial name registrants as trademark holders in their own right. 

The fact that many existing trademark holders world-wide missed the opportunity of their lifetime (and their children's lifetime) to be first-to-register generic domain names similar to their marks does not give them the ability to rewrite history and unseat those who saw what they didn't.

Thank God for capitalism, free enterprise, trademark law (precedent) and competing bay area universities with more open-minded teaching faculty.

Comments

[anonymous]

oops I just registered tcattorney.com

im a bad cybersquatter

[Ed Keay-Smith]

What the???!!!

Where and when did this Professor Goldman guy do his research for that article?

It is really getting on my nerves the amount of articles being written these days by supposed "professionals" that cannot distinguish the difference between "generic domain names" and "cybersquating".

If they spent more than 5 minutes on the research they would maybe, just maybe GET IT!

I think what you said Frank about missing the boat and people making more money than he does from domain names may be hard to swallow.

Onwards and upwards I say!

Regards

Ed Keay-Smith
OzDomainer

[Bill Henson]

Awesome, AWESOME read Frank. It should be required reading by everyone before they're allowed on the internet.

[Sahar Sarid]

Nicely said Professor Schilling :)

[Chang]

Speaking about whether people will continually type in domain name in address bar, my wife has actually stopped doing it since she discovered she can just type in her search term in the address bar (not search bar) without .com, and her Firefox browser will take her to her desired site (which is the top site of the google search result on that term).

For example if she types "verizon" in address bar, browser takes her to verizon.com.

I'm not sure about the behaviour of other browsers, but I do think this feature of firefox is a threat to type-in traffic.

Love to know your thoughts on this.

Chang

[Robert]

At least partially- some of what he says has some ground. Many users use search boxes for their "type-in" needs as opposed to typing straight in the address bar. If a parked domain can't be found this way, this class of type-ins are gone... unless the user goes back to basics which may or may not be the case. Some people give a lot of credit to the searched results and if a domain search results in nothing, they may conclude it doesn't exist.

There is a recent thread in dnforum where some domainers are reporting loss of traffic and this could possibly be tied to not being able to find their domains in search engines anymore. Or at least in the first spot, as would be the case for a developed site (everything else being equal).

Coincidence in reporting this article as these changes are taking place?

[rhart]

This educator needs some education.

http://www.ericgoldman.org/

[john n]

Since firefox is an open source browser, maybe some developers can contribute to it and stress the importance of user intent.

What I mean is, if a user types a FQDN into the search bar, firefox should go out to DNS FIRST, and then to google if the name does not exist in DNS.

I bet someone could convince the mozilla foundation that this would be what the user wants.

[Patrick McDermott]

"The fact that many existing trademark holders world-wide missed the opportunity of their lifetime (and their children's lifetime) to be first-to-register generic domain names similar to their marks does not give them the ability to rewrite history and unseat those who saw what they didn't."

Unfortunately,Frank,sometimes history does get rewritten and a generic domain holder gets unseated.

Recent case in point: Elders.com

See here:
http://snurl.com/EldersDecision

And back in March 2007, Pirelli Tire company
unseated the holder of the generic domain:
zero.org

Pirelli has a TM for PZero and stated in their filing:

" Respondent’s domain name is confusingly similar to Complainant’s PZERO mark.".

Incredibly the sole arbitrator conluded that:

"Respondent’s disputed domain name contains the dominant portion of Complainant’s PZERO mark. The disputed domain name eliminates the letter “p” and adds the generic top-level domain (“gTLD”) “.org.” The Panel finds that elimination of a single letter from a protected mark, as well as the addition of a gTLD, fails to sufficiently preclude a finding of confusing similarity in the disputed domain name with the (trade) mark"

Sadly, Pirelli was awarded the zero.org domain primarily because the Respondent made
no defense.

Link:
http://snurl.com/ZeroLoss

At the same time Pirelli went after zero.us.

This time,DN Lawyer,John Berryhill defended
the domain for the Respondent and transfer of domain to Complainant was denied.

But here are some absurd claims from Pirelli's filing:

"there is no reasonable possibility that the domain name was selected by respondent for any purpose other than a brazen attempt to create a likelihood of confusion with complainant's mark"

and

"zero.us is "identical or confusingly similar" to its "pzero" and "zero" trademarks..."

and even more absurd

""The zero.us domain name appropriates a common misspelling of complainant's zero and pzero marks in its entirety"

zero...is a misspelling of zero?

zero...is a misspelling of PZero?

Link:
http://snurl.com/ZeroWon

Also that month, John Berryhill defended the generic domain 187.com from being "stolen".

Link:
http://snurl.com/187decision

Be careful out there!

Patrick

***FS*** Great points Patrick ..

[Brooks]

I once knew a millionaire who always said "thank God I never went to college". Now I know what he meant. I think of what Paul Simon once wrote...."when I think of all the crap I learned in high school, it's a wonder I can think at all".

This "professor" is one piece of cake. I think, Frank, you (or one of your brethren) should call this radio show host and give him little education and then do a one on one with the professor. I wouldn't miss that for the world.

[Patrick McDermott]

"Are all rap musicians gangsters?"

Gangsters? Not possible!

But they could all be gangstas.

Here's some fun for you Frank!

From: The Original Gangsta Name Generator

"So, you want a gangsta name, huh, sucka?

Type in your current boring-ass name and be re-dubbed:"

Old name: Frank Schilling

"I now dub your ass:
Slimy Pud"

Hey! Don't shoot the messenger. :-)

Link to The Original Gangsta Name Generator:

http://gangstaname.com/index.php

Patrick (from Da Bronx)

Gangsta Name Generator

"Old name: Patrick

I now dub your ass:
Old Fool Rat Snatch"

Frank ,I'll trade you "Old Fool Rat Snatch"
for "Slimy Pud".

I think Slimy Pud is a better domain name -
and shorter!

And available for Regging!

Patrick (aka Old Fool Rat Snatch)

[Todd Mintz]

Frank, I got an email inviting me to go on the show to defend domainers since they must have read some of the domain-related articles I've been writing recently. I declined...however, he is looking for the domainers point of view and if you want to do it, I'll forward you the contact information.

[Jack]

Well mang, not all of us developers are Robber Barrons ;)

[Jim Fleming]

In a strange ironic twist, Microsoft (with all their legal experts) may end up being the big hero to save people from a lot of the nonsense.

If you have not looked at the Peer Name Resolution Protocol (PNRP) that ships with Windows Vista, you should.

PNRP in a nut-shell is a system that allows users to select names and have those names "registered" in a global registry created by the global network of Windows Vista machines. There is no central mainframe Registry company or QUANGO regulator (travel club) collecting 25 cents for each name.

It gets better, if a SOHO business wants to jump thru some Microsoft hoops they can get a .COM name for FREE, including HOSTING!!!
This is part of the Microsoft Office-Lite FREE offer to try to get people to use their office applications.

For people that look at everything as some evil corporate scheme to pull them into a walled garden to dominate them, they may find that their .COM name is now part of the Microsoft empire. That may actually be good. They may have some "protection" in that walled garden.

By the way, the Microsoft infrastructure is
apparently backed up by the major Australian
players. Isn't it strange that the CEO of
ICANN is from Australia.

When you look at the really big picture and
the expanding address space, people may
begin to see that there could be millions
of these "walled-gardens". Consumers and
small businesses may find that they really
like the walled-garden that Microsoft has
created. How can they argue with FREE ?

At some point toll-gates could of course
be quickly constructed and only the members
of the walled-garden would make it past
the Gates (no pun intended). Again, that
community may actually like the stability of
the entire solution. It has been very quietly
delivered via Windows Vista and the remote
update features allow more additions to come.

If enough people move to what appears to be
a stable, safe, integrated, leading-edge,
walled-garden "platform" the old .NET could
quickly melt away, or only be used by people
who are viewed as fringe and who spend no
money. In true Microsoft fashion, they may
have the dominant path to lead consumers to
their safe haven and away from the nutty
professors and their globe-trotting Quangos.

Consumers seem to just want things that
work and they like things that are FREE.
It is ironic that all of the various
non-profits and not-for-profit Quangos
provide nothing for FREE, except maybe a
seat at one of the their boring meetings
where they play out their scripted charades.
How much longer can rational humans fall
for that nonsense ?

Windows Vista has many of the pieces needed
to migrate users to a brave new world.
Existing Domainers may find that they are
not part of that world. Oooops