Registering a name on the World Wide Web comes with rules which are not very clear, hence innocent and new business owners become vulnerable to law suits. Cybersquatting is one such issue. It’s when a domain name is purposely registered to gain profit off another’s trademark.
ICANN, which is a California-based Internet Corporation for Assigned Names and Numbers, takes care of all types of domain name system management. When an issue of Cybersquatting arises, the complaining party takes ICANN’s special aid. ICANN accredits four different domain name dispute resolution services which handle the disputes effectively without having to take the dispute to court.
Usually the resolution takes place online and the entire process takes less than 45 days to come up with a decision. What is good about this system is that, even after the decision has been taken, if the company is still not satisfied with the results, it can take the matter to court. To further the process after the complaint, the defendant has to produce documents which can verify if the trademark is legit.
The Anticybersquatting Consumer Protection Act (ACPA) authorizes a trademark owner to sue an alleged cybersquatter in federal court and obtain a court order transferring the domain name back to the trademark owner. In some cases, the cybersquatter must pay money damages.
To prevail in a domain name dispute, the complainant must prove that the disputed domain name "has been registered and is being used in bad faith." The below lists four circumstances as evidence of bad faith:
(i) the domain was registered primarily for the purpose of selling it to the complainant or a competitor for more than the documented out-of-pocket expenses related to the name; or
(ii) the domain was registered in order to prevent the mark owner from using it, provided that the registrant has engaged in a pattern of such registration; or
(iii) the domain was registered primarily to disrupt the business of a competitor; or
(iv) by using the domain, the registrant has intentionally attempted to attract users for commercial gain by creating a likelihood of confusion as to source or affiliation.
These factors, however, are non-exclusive, and panels have applied them rather loosely, finding bad faith in activities beyond those enumerated in the list.
In order to stop a cybersquatter, the trademark owner must prove all of the following:
· the domain name registrant had a bad-faith intent to profit from the trademark
· the trademark was distinctive at the time the domain name was first registered
· the domain name is identical or confusingly similar to the trademark, and
· the trademark qualifies for protection under federal trademark laws -- that is, the trademark is distinctive and its owner was the first to use the trademark in commerce.
If the accused cybersquatter demonstrates that he had a reason to register the domain name other than to sell it back to the trademark owner for a profit, then a court will probably allow him to keep the domain name.
Clear examples of bad faith registration are not hard to come by. More interesting are the less clear cases, in which panels go beyond the enumerated factors in reaching their decisions.
The penalties for cybersquatting are
- Three times the value of harm actually suffered
- Any profits realized by the cyber squatter
- Court costs
- Possible legal fees
However, if you are Brittany Spears and cannot sing; the courts will award the rights to your domain to the Brittany Spears who can sing. She deserves that name more apparently.