Conflict of Opinion
If a UDRP panelist believes domainers are the same thing as cybersquatters, is he fit to arbitrate?
I came across an editorial on CNET today by Doug Isenberg, an attorney in Atlanta and founder of GigaLaw.com, and a domain name panelist for the World Intellectual Property Organization. The guest editorial focuses on Whois privacy and why it’s imperative to maintain open access to registrant data for intellectual property and legal purposes. That’s a common opinion I’ve read a million times. Nothing groundbreaking there.
But then I was shocked to read that Isenberg generalizes domainers as cybersquatters:
Today, cybersquatters have rebranded themselves as “domainers.” Popular blogs and news sites track their activities. Industry conferences have sprouted to serve them. And “monetization” services–which quickly let domain name registrants turn otherwise unused, or parked, Web pages into money via affiliate links that often trade on the goodwill established by well-known brand owners–are finding a sizable and growing client base of hungry and often shrewd domain name registrants.
All of these practices are costing honest businesses untold sums.
It seems that Isenberg believes use of monetization services is bad and that domainers are bad. I’d hate to have a UDRP decision fall into his hands if he goes in with this bias. Perhaps he’s simply trying to say that monetization of trademarked domains is bad — which is hard to argue with — but this doesn’t come across clearly in his editorial. He goes on to discuss “fixing” the issue:
Who is going to stop these online shenanigans? Apparently not ICANN, which has never revoked the accreditation of a single registrar, even though some of them are among the most popular registrants of domain names. To its credit, ICANN has sought to hire a Compliance Program Specialist, recognizing that violations by registrars “can cause serious detriment to consumers and to the Internet community both directly, and indirectly, by damaging the competitive process that is crucial to a dynamic and healthy market.” Yet the role has remained unfilled for more than a year.
In many ways ICANN’s hands are tied. The organization would like to sanction registrars, but the only thing it can do is “the nuclear option” — taking away the registrar’s accreditation. This is a major step, and it might be warranted for some registars, but how can you do this without first making a warning sanction or fine to the registrar? (ICANN can’t do this.)
Don’t get me wrong. I believe that domain kiting and typosquatting of trademark typos is bad for business. I just think that Isenberg is making broad generalizations regarding domain name owners…and this conflicts with his ability to serve as a domain name arbitrator. Furthermore, it baffles me that sizable firms haven’t looked at an affordable solution to people typosquatting its brand names: register as many variations of the domain as possible. It would cost a lot less than hiring lawyers to send off cease & desist letters.
UPDATE: I just reviewed 14 of Isenberg’s UDRP decisions. 13 were slam dunk trademark infringements and the respondent didn’t bother to reply. In the other one he found in favor of the respondent, who proved she didn’t register the domain in bad faith.
UPDATE 2: A reader has tipped me off to some information regarding Doug Isenberg, who today suggested that people that own domains as investments are cybersquatters. Take a look at CouponCodes.com. The last Whois record in the archive for this domain is Doug Isenberg of Atlanta. Now it is protected by Whois privacy. Apparently people that have contacted Doug in the past regarding buying this domain received a very high asking price. So in other words, even though his article is regarding the ills of not having publicly available Whois information, Isenberg is hiding behind domain privacy and is, by his definition, a cybersquatter!
