Do You Own – and Control Your Domain Name? You May Be Surprised!

domain name

All too often, website owners are lax in nailing down ownership and control of valuable domain names, and as a result, are often required to litigate these issues costing them thousands. The case of Dawson v. Brandsberg illustrates these costly mistakes and how to avoid them.

Dawson v. Brandsberg – The Facts

The dispute was between a website operator and developer regarding rights to a domain name that consists of the operator's name: “robertedawson.com”. Plaintiff Dawson and his real estate firm (the website operator) hired Defendant Brandsberg (the website developer) to develop a website. A key fact is that there was no written agreement regarding possession or use of the domain name.

Other important facts include:

* Plaintiffs requested Defendant to register the domain name at issue;

* Defendant developed the website associated with the domain name; and

* Plaintiffs paid for the initial registration of the domain name, plus development, hosting, and maintenance fees for the website.

Eventually, the business relationship soured, and the Plaintiffs sought to transfer the domain name and the website to another internet service provider. The Defendant refused to transfer the domain name and the website, and essentially held the domain name hostage.

Dawson v. Brandsberg – The Decision

Dawson brought suit against Brandsberg in the U.S. District Court in Virginia under the Cyberpiracy Provisions of the Lanham Act,Section 43 (d), 15 U.S.C. 1125(d). Dawson v. Brandsberg, 2006 WL 2915234 (W.D. Va. Oct. 10, 2006). Plaintiffs argued that the federal cyberpiracy prevention statute was applicable, and that it protected the domain name and imposed liability for a bad faith registration with the intent to profit from the registration. Plaintiffs also argued that it had a non-exclusive, implied license to use the domain name, given that Plaintiffs had paid for registration, development, hosting, and maintenance of the website.

Defendant Blandsberg argued that:

* Plaintiff's name was not a proper trademark because it was not distinctive at the time of registration of the domain name,

* Defendant had registered the domain name and developed the website with the intent to sell it to Plaintiff at a later date, and

* Plaintiff had no copyright or implied license in the website.

Defendant Blandsberg filed for a motion to dismiss most of the counts of the suit. The Court ruled in favor of Plaintiff Dawson denying the motion. The Court seemed to rely heavily on Plaintiffs' arguments regarding the implied license, stating “Even assuming that Brandsberg created the website, if Plaintiffs have no license to use the website or domain name, the creation would be valueless”.

Conclusion: Lessons Learned

Don't rely on oral agreements; get it in writing! Provide not only for ownership of the website, but also of the domain name.

Provide that your domain name be registered in your name, not in the name of the vendor.

Also, note that control over the domain name is very important, and control goes with knowledge of the ID and passwords to the domain name account with the Registrar. So to maintain control, be sure to change the password so that you are the only one who has access to the administrative controls for your domain name at your Registrar's site.

Chip Cooper is a leading intellectual property, software, and Internet attorney who advises software and ecommerce businesses nationwide. Chip's easy and affordable online contract drafting service coordinates website contracts such as Terms of Use, Privacy Policy, Subscription, Membership, and SaaS agreements. Visit Chip's http://digicontracts.com site and download his FREE report, “12 Sure-Fire Ways Your Website Can Get You Sued”.

Article Source: http://EzineArticles.com/1183778

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Do Trademarks Always Trump Domain Names? Not Always

trademarks

Online start-ups are faced with the daunting task of selecting a domain name that will withstand legal challenges.

There's a general belief among online start-ups that a trademark owner will always trump a domain name registrant with the same or confusingly similar domain name. That's not always the result… as two recent 2010 UDRP decisions point out.

The UDRP

What is the UDRP, and why is it important?

The UDRP acronym stands for the Uniform Domain Name Dispute Resolution Policy. The UDRP is a set of procedures and rules that are supposed to help determine who should prevail in a dispute over domain name ownership.

The UDRP is important because it provides a faster and cheaper way to resolve a domain name dispute than a full-blown lawsuit in a court of law. Instead of litigation, it's an administrative proceeding where the contestants present written arguments to a panelist-arbitrator who issues a binding decision. In-person hearings (including hearings by teleconference, videoconference, and web conference) are permitted only in exceptional cases, and are therefore rare.

The UDRP has not been without its critics. Most of the criticism centers on the fact that the UDRP was established to benefit trademark owners in taking non-trademark owners to task in domain name disputes. And UDRP critics often point out the fact the UDRP decisions seem to come out overwhelmingly in favor of trademark owners.

There are three requirements for a trademark owner-complainant to prevail over a domain name-respondent in a UDRP proceeding:

1 – the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights;

2 – the respondent has no rights or legitimate interests in respect of the domain name; and

3 – the domain name has been registered and is being used in bad faith by the respondent.

The Arizona State Trailer Sales Case

This case involved requirement no. 1 above.

The complainant, Arizona State Trailer Sales, argued that the respondent's littledealerrv.com domain name was confusingly similar to the complainant's registered mark, LITTLE DEALER LITTLE PRICES and the complainant's common law marks, LITTLE DEALER LITTLE PRICES RV and LITTLE DEALER.

The respondent argued that it should prevail because its registration of its littledealerrv.com domain name occurred prior to the complainant's registration of its trademark.

The respondent won. The UDRP panelist noted that a complainant has to show that the respondent's domain name is identical or confusingly similar to complainant's mark. “This provision necessarily implies that Complainant's rights must predate the registration of Registrant's domain name”, the panelist concluded.

The take-away – the respondent won because it registered its domain name before the complainant registered its trademark.

The University of Texas Case

The University of Texas at Austin (UT) case involved requirement no. 3 above.

UT showed that it owned the texassports.com domain name, as well as the following registered trademarks: TEXAS, UNIVERSITY OF TEXAS, TEXAS LONGHORNS, and LONGHORNS. UT also showed that its TEXAS mark is registered for “Entertainment services, namely, providing college athletic and sporting events.”

UT argued among other things that the use of respondent's texassports.org domain was in bad faith because it was used as a “parking” website for information related to University of Texas sports and sporting events.

The respondent won. The panel found that UT did not prove “bad faith”. The panel reasoned that because the term “Texas Sports” is geographically descriptive, the respondent was free to register its domain name using the term on a “first-come, first-served basis”.

The panel also found that UT did not have a registration for the term “Texas Sports”, and therefore there was no likelihood of consumer confusion.

Conclusion

Selecting a domain name that will withstand legal challenges is a strategic undertaking for any online start-up.

The important lesson is that although the UDRP may help in deciding in favor of a respondent in a domain name dispute with a trademark owner, the recommended approach is to avoid the dispute altogether by undertaking a thorough search of pre-existing trademarks before selecting a domain name.

Copyright 2010 Chip Cooper

Leading Internet, IP and software lawyer Chip Cooper has automated the process of drafting Website Legal Forms for website legal compliance. Use his free online tool — Website Documents Determinator — to determine which documents your website really needs for website legal compliance. Discover how quick, easy, and cost-effective it is to draft your website legal forms at DigiContracts.com.

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What is the difference between public and private domain name registration?

What is the difference between public and private domain name registration?

Per the registrar agreement with the Internet Corporation for Assigned Names and Numbers (ICANN), the contact and registrant information listed for your domain name must be made public. Using false information is a violation and can lead to the termination of your domain name registration.

However, most people do not want their personal contact information (name, address, email address, and phone number) made public in the Whois database.  And, the SPAM, nobody wants that.  Most people start getting SPAM within minutes of public registration.

That's where Private Registration services come in!

When you purchase Private Registration services, the Whois database lists a generic name, mailing address, and phone number instead of your personal contact information. There's also a private unique email address for your domain name — you decide to have any arriving email forwarded, filtered for spam, or not forwarded at all.

Although the listed registrant of your domain name is generic on the Whois database, you retain FULL CONTROL over your domain name. You can:

  • Cancel, sell, or renew your domain name
  • Control the content for your website
  • Set the nameservers for your domain name
  • Update your underlying domain name contact information
  • Resolve any and all disputes involving your domain name

Private Registration provides a variety of benefits! It helps you:

  • Protect your identity
  • Stop domain name-related spam
  • Thwart harassers and stalkers
  • End data mining
  • Maintain personal and family privacy
  • Prevent your domain from being hijacked
  • Shield legitimate entrepreneurial business endeavors
  • Voice political and other First Amendment speech

You may not use private domain name services for spamming, violating the law, or engaging in morally objectionable activities. Violating these policies will result in service cancellation.

Register your domain name at MyInternetWebSite.com and select Private Registration!

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Domain Registration – Everything you need without the extra cost!

Domain Registration

When you register your domain name through MyInternetWebSite.com, each and every domain name comes with all you need to get online – all at no additional charge!  You don't have to pay more to get more!

  • Domain Forwarding and Masking: Direct any domain name you own to your website. Anyone who types that domain name into their browser is taken directly to your website.
  • Domain Locking: Domain locking prevents accidental or intentional transfers of domain ownership and stops anyone from redirecting your nameservers.
  • Total DNS Control: Manage your domain nameserver (DNS) records and set your email, FTP, sub-domains and website location all from one control panel.
  • Change of Registration: Assign your domain name to someone else or change the contacts for your domain online anytime.
  • Status Alerts: Monitor the status of your domain and get instant alerts if there’s been a change.
  • Auto Renew Protection: No need to watch expiration dates to make sure you renew on time! Auto renew keeps your domains, hosting, website builders, and other products in your name and under your control.

Register A New Domain Now

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Understanding Private Domain Registration

What is the difference between public and private domain name registration?

Per your registrar agreement with the Internet Corporation for Assigned Names and Numbers (ICANN), the contact and registrant information listed for your domain name must be made public. Using false information is a violation and can lead to the termination of your domain name registration.

Registrars, such as MyInternetWebsite.com, understand most people do not want their personal contact information (name, address, email address, and phone number) made public in the Whois database. That’s why MyInternetWebsite.com offers Private Registration services.

When you purchase Private Registration services at MyInternetWebsite.com, the Whois database lists a generic name, mailing address, and phone number instead of your personal contact information. They also create a private unique email address for your domain name — you decide to have any arriving email forwarded, filtered for spam, or not forwarded at all.

Although the listed registrant of your domain name is generic on the Whois database, you retain FULL CONTROL over your domain name. You can:

  • Cancel, sell, or renew your domain name
  • Control the content for your website
  • Set the nameservers for your domain name
  • Update your underlying domain name contact information
  • Resolve any and all disputes involving your domain name

Private Registration provides a variety of benefits! It helps you:

  • Protect your identity
  • Stop domain name-related spam
  • Thwart harassers and stalkers
  • End data mining
  • Maintain personal and family privacy
  • Prevent your domain from being hijacked
  • Shield legitimate entrepreneurial business endeavors
  • Voice political and other First Amendment speech

All of this is available for just a few dollars a year!

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Registering Domain Names

Registering a domain name builds your credibility on the Internet. Use domain names to support your business and assist in creating a dynamic online presence. Your domain name establishes your online identity and increases branding, marketing and communication opportunities. Register multiple domain names to:

  • Keep your competition from registering a domain name that draws customers away from you.
  • Promote the products and services you offer.
  • Drive more traffic to your website.
  • Enjoy more opportunities to market to — and be listed on — search engines.
  • Create distinct advertising strategies to reach different target markets.
  • Provide customers more ways to find you on the Internet.
  • Capture common misspellings of your domain name, instead of sending visitors to an error page.
  • Protect your brand and online identity from unsavory parties.

To get started, check to see if the domain name you want is available. If available, register the domain name for a period of time you specify during the checkout process.

To Check a Domain Name's Availability

  1. Go to http://myinternetwebsite.com .
  2. In the Domain Name Search field, enter the domain name you want to register, and then select the domain name extension (such as .com or .net) from the list.
  3. Click GO.

If the domain name you requested is already registered, you will see available alternatives. For example, you might be able to select a .info or .ws domain extension, rather than .com.  You could register www.coolexample.info instead of www.coolexample.com.

If the domain name is available, follow the instructions to complete the checkout process. Be sure to include valid contact information for each contact. The Internet Corporation for Assigned Names and Numbers (ICANN), the governing body for domain names, requires valid contact information (registrant, technical, billing, and administrative). If you enter false information, your domain name can be canceled.

Your contact information is public and accessible through the Whois database at most registrars. However, you can protect your privacy by registering your domain name with us using our private domain name registration services.

We highly recommend using private registration to hide your contact information from spammers and scammers.

When you purchase private domain name registration, the Whois database lists the name of our privacy affiliate company, as well as their postal address and phone number — instead of your personal contact information.

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WHOIS Masking Starts January 25, 2018

This service will block some of your contact details through automated access points.

We're always looking for ways to protect your information online. To help slow the flood of spam that can occur when you register a domain without privacy services, WHOIS masking of certain personal data will be turned on for all domains on January 25.

This service will limit a potential spammer's ability to access your first name, last name, email and phone number through automated means (also known as Port 43 access). We'll continue to publish full WHOIS details to users of our CAPTCHA-protected, web-based WHOIS system, as required.

Domain Privacy still matters.

While we hope this service will help cut down on spam calls and emails, because registration information is still made available publicly, Domain Privacy is still the best way to maintain anonymity online. WHOIS masking will only restrict spammers through automated bulk access sources.

Masking contact information shared via WHOIS automated access points

All ICANN accredited registrars (such as MyInternetWebSite.com) are required to provide WHOIS Look-up access to the public. (WHOIS is a mechanism to look up the contact information associated with your domain name.)

MyInternetWebSite.com supports both individualized lookups (via secureserver.net/whois) and automated bulk lookup requests (also known as Port 43 access). There are several legitimate users of bulk WHOIS data, but we also have bad actors misusing this to spam our customers.

Starting January 25, 2018, MyInternetWebSite.com will begin masking (blocking) the Registrant name, phone and email on all bulk WHOIS requests from unauthorized sources. Legitimate users already approved through the MyInternetWebSite.com Port43 Process will continue to receive unmasked contact info. This is being done to protect your info, and reduce chances of spammers getting ahold of your data.

While the intent of this service is to help reduce spam calls and emails, Domain Privacy is still the best and most efficient way to maintain anonymity online. WHOIS masking will only restrict spammers misusing our automated bulk access sources.

If you prefer to keep your domain information unmasked, you can opt out at any time using one of the options below:

  • Contact our Customer Care Center
  • Send a written request to port43@secureserver.net from your email of record. Additional information may be requested through this channel for verification purposes.

Note: If you are sending a written request, please review the following details to help expedite your request:

  • Email request must come from the email associated with your account (email of record)
  • Please use Subject Line: Opt-out of WHOIS masking
  • In the Body of the email, please provide the following:
    • Customer Number(s)
    • “I certify and understand that by opting out of Port 43 masking, I approve of MyInternetWebSite.com continuing to provide the Name, Email and Phone number associated with all domains related to the Customer Number(s) provided.”

Note: Your customer number can be found if you click on your name in the top right corner when you are logged into your MyInternetWebSite.com account, and the email of record can be found on the Account Settings menu under My Profile.

It may take up to 24 hours to process the opt-out request.

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.ME – The domain that’s all about YOU!

image03064165133For business or fun — this domain has personality

Tell your story on the Internet with .ME — the Top-Level Domain that's all about you, your product, your world! Register your own name with a .ME extension and you have the ideal Web address for a personal blog, podcast or online portfolio. Promoting products or services to a young audience? Use a fun .ME domain for your niche website. Anyone can register these domains.

Use .ME for business:

  • Personalize your product or service for Internet-savvy Web consumers by launching a .ME Web site with your product name in it.
  • Protect your brand from competitors who might wish to take advantage of the name recognition generated by your popular .COM.

Or for yourself:

  • Carve out a place on the Internet that's all your own, including an email address with your .ME domain name in it!
  • Perfect for blogs, resumes, and personal pages.
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Can you register a trademark for a domain name?

The answer is YES! Read this article by the Small Business Development Center to learn more.

To search for and register your domain name, go to http://www.myinternetwebsite.com/

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Understanding Domain Name Extensions

A domain name is the text name that is corresponding to the numeric IP address of a computer on the Web. The web users access your website using your unique domain name. Domains can be registered through a number of registrars under various extensions such as .com, .org, and .net. You must check out various registrars, they may offer a wide variety of plans and prices.  We recommend that you use our service at http://www.MyInternetWebsite.com.

Often, there have been scams and rip-offs in the domain registration, so you need to be very careful. You should try to find a legitimate registrar. The legitimate web providers will charge a small surcharge for covering the labor to get the domain registered and set up on their server.

“.com” is short form of ‘commercial’. ‘.Com’ is the most famous extension, and is an unrestricted global domain name. Most of the businesses prefer ‘.com’ mainly because it is a well recognized business presence on the Web. The availability of ‘.com’ names have reduced, so you can also consider the other extensions.

‘.Net’ is short form of ‘network’. This is an unrestricted global domain name that is commonly used by the internet service providers and businesses, which are directly involved in the infrastructure of the Web. You can select a ‘.net’ extension for internet websites.

‘.Org’ is another global popularity winning domain name extension that is used mostly by the non-commercial web sites or non-profit organizations. ‘.Biz’ is a fairly new extension, and is short form of ‘business.’ It is mostly used by the business related websites. .Biz offers a good chance for the businesses that are unwilling for compromising their URL, when the ‘.com’ extension is already taken.

‘.Info’ is short form of “information,” and it is an unrestricted domain name. ‘.Info’ can be used for resource-based websites and brochure sites designed for reaching a customer base with the information about the business. There are other extensions such as .us, .uk, .in, .aus, etc. These types of extensions are restricted use country codes that are used by an individual or organization within their particular country.

Domain name registration is important, easy, and a strategically significant first step in establishing an online presence for your business. A well-chosen domain name can benefit your business in many ways and, I believe, plays a role in your website's ranking on search engines.

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Beware of Scam Domain Renewal Notices

image09271215653Fake domain name renewal notices have been around for a long time.  They are usually received in the USPS mail about 90 days before a domain name's expiration date.   They look like authentic invoices and companies are fooled all the time.   The charge is usually around $75 which, oddly enough, is a lot more than a real registration.  You would think the higher amount would give people pause, but perhaps the higher amount makes it seem even more legitimate and urgent.   Today, I received one by email which is how legitimate domain registration companies send renewals.  It looked very believable.   Please keep an eye out for these scams.  If you receive any domain renewal notices and you aren't sure about the legitimacy, please send it to us–we'll tell you if it's real or not.

Here's what my email notice looked like today.

Beware of Scam Domain Renewal Notices

 

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