14
Jan/03

Whois, Who Was, and Who Will Be


Someone registered a domain name which is a one-letter variation of my client’s famous trademark (same fact pattern as the GE case below, different client, this happens a lot).  One of the 3 elements I have to establish to prevail in a UDRP is bad faith.  Because registrants tend not to create written evidence of bad faith, this usually has to be proven using inference.  The most common evidence of bad faith tends to be a pattern of similar behavior on the part of registrant.

The problem is that patterns are getting harder to prove.  One cause is the fragmentation of Whois.  Since the registry/registrar era began, there is no central whois which allows for searching by registrant name (and of course registrants, like the one in this case, give multiple fake names when registering domain names).  In this situation I had to trace back using an admin email address to find a telephone which I Googled.  That revealed a UDRP decision against the “true” registrant in which they registered a typo-version of someone else’s famous trademark. 

But here’s the thing.  If I settle with this registrant, there will be no UDRP decision.  Given that whois will give the date of the transfer as a new “Creation date,” there will be no record that the prior registration ever existed.  The next person that this registrant rips off will have no way of knowing that this guy did the exact same thing to my client.

Which brings me to today’s topic: market solutions for regulatory short-coming.  Snapnames (provider of SnapBack name “back order” services and whose State of the Domain reports I have praised previously), and Dialog (a Thomson Group company), have come up with a WhoWas database containing archival whois data back to 1997.  The service is available both to Dialog subscribers and as an open access credit-card based Web service.  The GC at SnapNames was nice enough to demo the product for me and it worked as advertised.

Personally, I would rather that ICANN press the registry operators to provide access to archives so that it could be easily established whether, on any given day a given domain name existed and who was the registrant, but if the Lord had intended simple solutions to the DNS, He/She wouldn’t have organized ICANN as a not-for-profit California corporation.

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