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responses
This note considers responses to domain name tasting.
It covers -
introduction
Responses to domain name tasting have essentially taken
four forms -
- assertions
that tasting is a legitimate practice, one that is consistent
with the contractual obligations of registrars (and
their associates)
- claim
that although problematical, 'everyone is doing it'
- strengthened
regulation by ccTLD managers
- litigation
by unhappy trademark owners.
As
noted on the preceding page, domain tasting has been opposed
as an embodiment of a "monetisation" that is
antithetical to the "spirit of the net".
Domain tasting has been widely criticised as an abuse
of process, failing to offer a level playing field for
legitimate companies and individuals wanting to register
a name that is being tasted (particularly if tasting allows
the registrar to price
a name for resale).
It has been defended by registrars as a legitimate way
to make money and, more persuasively, as authorised by
their agreements with DNS managers such as ICANN.
One critic commented
If
someone wants to take the risk and register a name they
think will attract traffic, I have no problem with that.
Tasting however removes the risk as the domain can be
deleted within the grace period at no cost if it doesn't
have the desired level of traffic.
A
more fundamental concern would be that ordinary registrants
do not enjoy the advantages of registrars and in practice
cannot engage in tasting on a large scale.
regulation
Nominet,
manager of dot-uk and counterpart of auDA,
announced in 2006 that it was taking action against registrars
that opportunistically register domain names to assess
how much money can be made from them, then delete them
if they generate insufficient returns.
Nominet indicated that it would impose limits on the number
of registrations that can be deleted in an effort to stamp
out domain tasting. It also indicated that would act against
entities that abuse its automated registration service
by recurrently registering and deleting domain names within
the 'registration window' to avoid paying for registration.
A Nominet executive commented
We have to offer the ability to delete, but we don't
want the system used to assess the monetisation potential
for registrars ... This practice is a breach of Nominet's
acceptable use policies and places unnecessary load
on its systems, potentially jeopardising access for
other users.
Although
there has been no limit on the number of names that can
be deleted, as of August 2006 dot-uk registrars will only
be able to delete 5% of their registrations (or five
domain names, depending on which is greater) and domain
tasting will be formally prohibited. Nominet proclaimed
that "the limit on deletions for practices such as
domain tasting is zero".
In October 2006 dot-org registry operator PIR, a not-for-profit
entity, proposed charging five cents for every domain
registered with it that is returned within five days -
something that it suggested would reduce the financial
incentive for so-called domainers.
In July 2007 the Coalition Against Domain Name Abuse (CADNA),
an advocacy group associated with the ICANN Intellectual
Property Constituency, claimed that "over 1 million
kited sites [are] re-registered daily, collectively bringing
in $100-125 million in annual revenue for criminals and
profiteers". CADNA argued that tasting "threats
the future viability of Internet commerce" through
"diverted sales, the loss of hard-earned trust and
goodwill, and the increasing enforcement expense of protecting
consumers from Internet-based fraud".
litigation
A different approach is evident in US litigation, notably
the federal
lawsuit filed by Bergdorf Goodman and Neiman Marcus against
Dotster in May 2006.
Those upmarket retailers and trademark owners alleged
in the Western District of Washington that Dotster's registration
of names infringed their marks of the plaintiffs. They
claimed that Dotster abused its position as a registrar
to register "high-traffic, infringing domain names"
and identified several obvious misspellings of those marks.
The allegation centres on the claim that Dotster is both
registrant and registrar of domain names featuring the
complainants' marks, with Dotster allegedly directly profiting
through advertising revenue and domain name sales. The
WHOIS data regarding
each disputed name either fails to identify a registrant
or lists a false registrant, with the retailers claiming
that the names were registered by Dotster without identifiable
registrants.
Examination of code on the web pages for those names indicates
that Dotster was the client for advertising purposes.
The complaint refers to correspondence between a Dotster
employee and a potential domain name purchaser (in fact
an investigator for Neiman Marcus), along with evidence
of payment for the sale of domain names. That has been
claimed to prove that Dotster is engaged in domain tasting
and in registration for its own commercial benefit of
domain names that feature trademarked terms.
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