Seven Mile

Names That Mean a Lot of Different Things, For Different Reasons, to Different People

Dan writes: "Seven Mile bridge in the FL keys.. Thanks again for chatting last Monday.  Have a wonderful weekend..

Dan"

***FS*** Thanks to you Dan... this timely pic again illustrates what many of us in the domain industry intimately understand .. Generic domain names and name-phrases often have a great deal of meaning and desirability to different people..  and for many different reasons.

Skidmark could be something you lay down from behind the wheel of your CL 65, it could be something unfortunate in your Calvins, or it could be the name of that hot new alternative band.

Delta could be an airline, a reciprocating saw, or a frat-house..

United could be an airline, a moving company or any number of insurers.

Doll House could be something children have played with for 300 years..  or a registered trademark related to beer cozies in certain countries or jurisdictions.

The most contentious disputes relating to domain names usually surround these coveted generic words and phrases which have some combination of potency, meaning, B-Factor, and Je Nai se Quoi.

The existing owners of such .com words and phrases, sometimes find themselves living modern-day scenes from a wild-west movie -- similar to the turning point where ranch owners are run roughshod over by railroad barons who's tracks came a few years later than those homesteaders.

The two-fold difference between 'then' and 'now' is the knowledge of those former inequities..  "We've seen this picture before"..   and .. today's ranchers have more free cash-flow than their bean-farming predecessors. Today's domain registrants are armed with lawyers, guns and money of their own; and while not walking around with a chip on their shoulder, they are willing and able to challenge covetous latecomers effectively via the UDRP and the courts.

Most of these accidental virtual-barons have vision exceeding their railroading counterparts.

This past weeks example of Cowboys.com drove that home for me..  After the attorney for the Dallas Cowboys came down with a case of "buyers remorse" relating to his $225,000 bid for that generic and valuable URL, his unpaid bid was bested by $100,000 (implying several groups of bidders) after word of the default spread to the street (NB: I had no hand in this).

..Less known is the fact that at the previous Las Vegas TRAFFIC auction a bidder dropped his paddle and physically ran from the room after facing the winning bid for a name he couldn't afford.  Another domainer chased that dead-beat out of the building in order to "buy" his winning bid at a premium!! -- because "that" gent couldn't get his own much higher bid in in-time. 

It's this flash mob of hot-money and domain visionaries with wallets to match their cajones that showed me where the future of Internet media may lie. The domainer who can afford to beat all would-be comers. I'm impressed by those top tier investor registrants who aren't in this business to pump and dump their own portfolios like many new registries..  They're here to acquire your portfolio and consolidate the industry on the way to becoming the next great media franchise.

I believe the great media companies of tomorrow will have significant path-changing entanglements with some of today's domainers..  Imagine 10 years of Google traffic payments and what you could do with that collective capital, coupled with interest and leverage from ongoing cashflow/operations.  Imagine 30-60 million curious walk-by visits a month from generic names that you aren't ashamed to mention publicly.

He who has the gold makes the rules.. has always seemed like a crass statement of sorts to me..  but there may be some truth in that statement as it relates to domain ownership.. If you own a generic URL, you own the gold .. or the Internet equivalent. How's that you ask?

People aren't naturally pre-disposed to beat a path to cynthiasdollhouseemporium.com ..  they're "inclined" to visit dollhouse.com; and they aren't visiting myskidmark.com, they're visiting skidmark.com; and they aren't visiting hot-las-vegas-travel.com ..they're visiting travellasvegas.com.  It doesn't matter how many domain names get created, because only a certain percentage will ever get "organic" type-in traffic for the keyword weight, resonance or "gravity" of the generic name itself. Disposable looky-loo drive-by visitors that you can monetize without consequence or degradation to the visitor stream.  And if you own those names..  then you own that portion of the Internet..  well, the generic disposable traffic on the Internet anyway -- which is the Internet that's worth talking about.  Because if you own "that traffic" and you make a mistake with your hot software mousetrap or execution, you get a redo with even more free traffic.. It's an opportunity without a shelf-life, and a parting gift in the form of break-up value to the name itself.

Free-form food for thought. Take the next week off if you already knew this stuff.

Trademark Law- What Search Marketers Should Know

http://searchenginewatch.com/showPage.html?page=3627333

This is a topic that all domain registrants and paid-search marketers should familiarise themselves with.

Most of Amazon's One Click Patent Rejected...

Most of amazon's one click patent rejected, because of evidence that another patent predates it. Amazon has the right to file a response.

http://www.news.com/8301-10784_3-9799269-7.html?tag=nefd.only

French Firm Loses WIPO Attempt on Atlantic.com

And so they should have.

http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-1063.html

Corporations such as this one in France are the Internet equivalent of 'armed robbers' in a convenience store..  They want your stuff,  stuff that could be sold to anyone for value..  and they don't want to pay for it.

...Daddy's got something waiting for you under the counter ;) ..  I'm in the process of litigating against a company that recently tried to defraud me via UDRP.  While my situation was particularly egregious, if we all resisted over-reaching in this way, covetous latecomers might think twice about doing something online, which they would never dream of trying in a 7-11.

Reverse Domain Hijacking Found in FCC.com UDRP

In the immortal words of Dr. Berryhill..  "This is rarer than a Blue Iguana"  (blue iguana's are a Cayman Islands rarity)

""This is the first time in a long time that a WIPO panel found reverse domain
hi-jacking:

http://www.wipo.int/amc/en/domains/decisions/html/2007/d2007-0770.html

Fcc.com - The Spanish complainant - a concrete company - didn't mention what, if anything, the respondent was doing with the domain name.  Of course, if you look at the site, anyone can see that it is an RSS aggregator for stories relating to the Federal Communication Commission.

The Panel found this kind of creative omission to be abusive, regardless of whether the Complainant did it on purpose.  The money quote is where the Panel itself mentioned that a three-member panel pays closer attention to these things than a single member panel:

"[T]he Panel observes that if there had been no response, there would have only been one panelist (it was the Respondent who sought a three member panel) and it is known that some panelists take a more robust view than others where there is no response and some panels restrict their consideration solely to the papers before them. Accordingly, it is not inconceivable that a sole panelist might have decided the case without looking at the Respondent's website and might have come to a different conclusion. [...]

Anyone examining the Respondent's website could see that it was a genuinesite and that anyone1 launching a complaint was bound to fail. The Complaint makes clear that the Complainant had visited the Respondent's website. The Complainant mentions the fact that the Respondent's website features revenue earning advertisements, but does not identify the nature of the advertisements; moreover, the Complainant uses the fact of those revenue earning advertisements (i.e. commercial gain) as a basis for its bad faith claim. The Panel is in no doubt that it was incumbent upon the Complainant in the circumstances of this case, noting in particular the nature of the domain name in question, to provide the Panel with sufficient detail of the Respondent's website to enable the Panel to make a fair assessment." There are a couple of money quotes in the decision. ""

***FS***  Terrific decision and blog fodder

Polaris Enforces Its Marks

Companies getting more savvy to TM infringers,  guided by industry peers and battle hardened IP counsel.  Not all cases are as clear cut as this one Download wpp-polaris.pdf  .. I expect some legal pushback as the first registrant's located in juridictions where ACPA doesn't apply, start to fight back using a twist of arguments found in old cases such as webber grills (although that criteria was different) and draw on the inequity of search engine monetization of those same TM's  via Google/Yahoo paid-search.

For years domain registrants have been preaching about the value and worth of domain names.  In a classic example of: "be careful what you wish for.. you may get what you want", companies around the world are starting to recognize that value ..  and are moving to secure the rights to obvious infringements of their brands/marks first.

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.

More Lawsuits Target the Darkside

http://seattlepi.nwsource.com/business/331601_cybersquatting14.html

This is a gradual shaping and of the space, where portfolios of trademark names are driven deeper underground and forced to operate from faceless organizations in unreachable jurisdications. 

While I don't subscribe to the philosophy of deliberately targeting trademark typos, I am struck by the dichotomy between the litigators (Microsoft) and their own philosophy of using obscure typographical trademark typos in non-resolving domain names (error search) as front door entry traffic fuel for their MSN portal.

The ACPA, while well intentioned, only forbids one of two nearly identical user experiences on the Internet.. The first happens in the search-engine toolbar or browser address bar, the second which happens in DNS is punishable in civil actions via the courts.

The world of Internet intellectual property is a strange, strange one indeed.

Rounders

http://news.portalit.net/fullnews_game-over-for-domain-squatter_144.html

Probably old news for those of you looking for hot domain tidbits...  An enterprising criminal (from my beloved Las Vegas of all places), figures out that high quality generic domain names are worth a lot of money and tries to defraud unwitting registrants with a  malicious ruse...  until he's busted.

I just got UDRP'd (and beat) a similar culprit who is about to experience a change in lifestyle (due to lack of cashflow) and hopefully spend some time in prison.

This type of thing happens and goes un-prosecuted every day.  It's important for registrants (regular people) to educate local law enforcement..  "Take the time to explain the crime"  ..  In my experience it's not that law enforcement officials lack the caring to pursue justice in domain matters.  It's just that you need to spend 20 - 30 minutes to clearly explain why and where a crime ocurred and the incredible amount of money at stake.

With your help, the bad guys will turn on their heel and run.  The bummer about the Internet (for the criminal element) is the undeniable paper trail..  Between payment method and access point (ip address) nothing is secret on the Internet.

USPTO Sued over Patent Office Appointment

Steve Morsa writes:

""Hi Frank,

Thought you/your readers might like to take a look at a lawsuit that myself and three like-minded brave souls just filed against the US Govt over their appointment of an unqualified 2nd in command to the critically important Patent and Trademark Office.

Given that trademark law is an important component in the domain space, it's pretty relevant to our business/es.

The govt continuing to appoint unqualifed "leaders" to the USPTO is only bad news for us and all innovators...

Here's what the WSJ says:

""UPDATE: U.S. Commerce Secretary Sued Over Patent Office Appointment

By Stuart Weinberg
Of DOW JONES NEWSWIRES

TORONTO (Dow Jones)--A group of inventors and patent lawyers have sued U.S. Secretary of Commerce Carlos Gutierrez, alleging his appointment of Margaret Peterlin as Under Secretary of Commerce for Intellectual Property and Deputy Director of the U.S. Patent and Trademark Office was illegal and an abuse of discretionary power.

According to the suit, filed Monday in the U.S. District Court for the District of Columbia, Congress amended the Patent Act in 1999 to require that the Director and Deputy Director of the USPTO each have "professional experience and background in patent or trademark law." Peterlin's appointment, announced May 8, violates the statute because she "lacks the requisite professional experience and background," the suit said. The suit was filed by Gregory Aharonian, a professional patent analyst and inventor; David Lentini, a patent lawyer and inventor; David Pressman, a patent lawyer; and Steve Morsa, an inventor. They are asking the court to order Gutierrez to dismiss Peterlin immediately and establish rules to assess what qualifies as a professional background and experience in patent or trademark law. They also want the court to order Gutierrez to appoint a replacement for Peterlin who fulfills those requirements.

According to the suit, the plaintiffs and other patent professionals sent a letter to Gutierrez dated May 26 requesting comment concerning the criteria used to identify candidates for the Deputy Director position. They also wanted to know how that criteria satisfied statutory requirements and how the appointment of Peterlin was justified under that criteria. As of July 9, the date the suit was filed, the plaintiffs have not received a response, the suit said. Representatives for Gutierrez weren't immediately available for comment.

According to the suit, the USPTO has suffered serious deterioration in the quality of issued patents and trademarks, the timeliness of examination and trademark applications, and the overall morale of patent and trademark examiners due to senior management who lack professional experience in patent and trademark law. Peterlin's appointment "perpetuates USPTO management's inability to handle egregious delays in processing patent applications and halt the decline in the quality of issued patents," the suit said.

The poor quality of patent examinations harms Aharonian and Morsa by forcing them to pay from thousands to tens of thousands of dollars in fees to argue "spurious rejections" of their patent applications, the suit said. Suit Alleges Peterlin Not Qualified For Position.The suit alleges, among other things, that Peterlin has never drafted or prosecuted a patent or trademark application and never managed professionals who work in the patent, trademark, or information management fields.

Before joining the USPTO, Peterlin was Counsel for Legal Policy and National Security Advisor for the Speaker of the U.S. House of Representatives, Dennis Hastert, according to biographical information on the USPTO's Web site. In this role, she advised Hastert, House and Senate leadership, and senior staff on legislative policy and strategy, including judiciary issues such as intellectual property protection, the Web site said.

Peterlin also served as general counsel to Richard Armey, majority leader of the House of Representatives, the Web site said. She clerked on the Fifth Circuit Court of Appeals for Judge Jerry Smith and also served as an officer in the U.S. Navy for four years, working in the communications field, the Web site said. She holds a bachelor of arts degree from the College of the Holy Cross and earned a law degree cum laude from the University of Chicago, the Web site said.

"Margaret Peterlin is well qualified for her job as Deputy Under Secretary and Deputy Director, having had direct involvement in oversight of the USPTO and every piece of patent, trademark, and copyright-related legislation considered on the House floor over the past five years,"the USPTO said in an emailed statement. "We will not comment further due to the pending litigation."

Intellectual property has become more central to the U.S. economy in recent years, as innovation supplants manufacturing as a key driver of economic growth. The number of patent applications has soared, climbing to nearly 444,000 in 2006 from 206,000 a decade ago. The deluge is at least partly responsbile for delays in processing patent applications, but Aharonian isn't prepared to cut the USPTO any slack. Reached for comment Wednesday, Aharonian said the increase in patent applications makes it that much more important for the USPTO to have qualified managers in place to handle the massive flow of information. He said the USPTO has a long history of mismanagement at the senior level. This has led to strained relations with patent examiners and a "multi-year" inability to supply examiners with the computing tools needed to process patent applications in a timely manner. "The people at the top level of the patent office don't have any experience with these types of managerial issues," he said. "So how can you expect any of them to solve the problems?"

-Stuart Weinberg, Dow Jones Newswires; 416-306-2026;
[email protected]
(END) Dow Jones Newswires
Copyright (c) 2007 Dow Jones &Company, Inc.""

Here's what my area Scripps newspaper says:

venturacountystar.com/news/2007/jul/18/suit-filed-to-remove-patent-office-deputy/

And here's the actual lawsuit:

www.bustpatents.com/peterlin.pdf

***FS*** Thanks a bunch Steve ..  Anything that makes the USPTO stronger is good for America and good for all individual and commercial domain name registrants, inventors and entrepreneurs.  Good luck with your action..  I hope it achieves those goals.