Cybersquatting Thrives for Lack of a Strong Deterrent
Moving Forward
At the end of the day ACPA has not proven to be much of a deterrent to large-scale cybersquatters. In order for ACPA to be more effective, there needs to be a new damage presumption for large infringers. Brands should be able to seek higher levels of damages and the offenders should be penalized according to the scale of their infringements. However, the penalties should not stop with the infringers. ACPA should be expanded to hold those who benefit from and enable infringers culpable as well. There is no question that ad networks, registrars and offshore companies working in concert with infringers should be categorized as bad-faith actors and be made susceptible to litigation.
While ACPA has a provision that considers a cybersquatter's offer to transfer or sell the domain name to be evidence of bad faith, it should also contain a clause that establishes attempts to solicit an offer of purchase as evidence of bad faith. Furthermore, the registration of a domain name for any period of time should be considered a full registration. There should be no distinction made between the legitimacy of a name that was registered and kept and one that was registered and then dropped within the 5-day AGP. Categorizing all registrations in the same way would encourage registrants to be more selective in their registration and would decrease the instances of infringement that occur in the first place.
Finally, there needs to be a concerted effort to establish an international enforcement protocol and harmonize penalties. A large portion of cybersquatting activity takes place offshore, making it critical for the international community to actively communicate their Internet use policies and ensure that they are consistent.
Beyond the scope of ACPA, a number of ICANN changes need to be made to effectively deter cybersquatting. ICANN needs to make it mandatory for registrants to provide accurate Whois information so that cybersquatters are unable to easily evade detection. In addition, it is of the utmost importance that ICANN closes the add grace period (AGP) to tasting and kiting so that abusers can no longer test-drive domain names for their traffic and consumer deception potential. The recent proposal from ICANN to institute a 20-cent fee for each "add" is simply not adequate. Finally, ICANN must require more accountability from registrars, registries, and others that benefit from cybersquatting. In an ideal world, all of these changes would be quickly enacted and the Internet would be much safer for consumers and brand owners alike. However, given the current state of affairs brand owners need to fight with the tools that are available and work together to resolve these issues.
By pooling their interests, trademark owners can drive the most notorious cybersquatters out of business. Businesses truly can effect change by banding together. It is important that they do so, particularly in the face of mounting opposition as domain name abusers attempt to define the policy debate.
This paper has been prepared by FairWinds Partners on behalf of the Coalition Against Domain Name Abuse (CADNA). CADNA is a focus group for brand owners dedicated to raising awareness and affecting change.
