Here is a UDRP decision in which the panel found complainant guilty of Reverse Domain-Name Highjacking and attempting to use the UDRP as “crowbar to pry away the domain name” WINDSOR.COM There appears to have been some falsified evidence as well.  There are no sanctions for this so the only recourse is for us to think bad thoughts about the complainant and its law firm.

UPDATE: A certain ICANN blogger thinks the appropriate sanction is a google bomb.

NYTimes, Wired and others are jumping on this story of how Wal-Mart and other retailers have forced websites such as Fatwallet.com from publishing those retailers’ pricing (apparently obtained from up-coming post-Thanksgiving sales circulars).  The retailers are arguing that the sales circular represents a protectable compilation of facts.  The retailers also utilized the DMCA in order to get speedy compliance.  The information has been removed.  I would have loved to have seen the original circular and the offending website because this sure is novel.

Harvard B-School Professor Michael Porter, in his article, “Strategy and the Internet,” (HBR, March 2001), notes un-ironically that the problem with the Internet is that it provides consumers with too much information as to products and pricing (the theory being that widely disseminated pricing information leads to commodization and a “race to the bottom” as to pricing).  Well, this is part of the reaction.

UPDATES:  Here is Fatwallet’s reaction and a good compilation of links from Copyfight.

A colleague forwarded me this item about Half Price Books suing Barnes & Noble over BN’s use of the term HALF PRICE BOOKS, with the subject heading “How Dumb Is This?”  I was prepared to write back and say “Somewhat dumb” but then I read the article which said that Half Price Books is a pretty large chain.  I did a trademark search and sure enough, Half Price owns a registration for HALF PRICE BOOKS, RECORDS, MAGAZINES claiming thirty years of use.  While a bookseller could use the term HALF PRICE to fairly describe its prices, given that HALF PRICE is descriptive and not a generic term for books (as opposed to, for example, USED BOOKS or REMAINDERED BOOKS), if Half Price can establish secondary meaning, and if a third party is uisng the term as a trademark, then there is a colorable claim.

p.s. If a client has been using a mark like HALF PRICE BOOKS for thirty years, then I don’t fault it for protecting the name.  On the other hand, clients are best advised to use names that have some initial scintilla of distinctiveness (<- ironic understatement indicator light on).

Afilias, registry operator of .INFO, has announced the registration of its millionth .info domain name.  Afilias claims that 27% of its domain names are used, and it using a narrow interpretation of use, as it is not counting “under construction” sites, for example.  State of the Domain’s quarterly report (if you don’t subscribe, do) did its own usage survey and actually duplicated the 27% number.  The idea that there are 270,000 .INFO websites out there with more than “This domain for sale” signs (or re-directs to .com sites) contradicts my own experience, and it also contradicts the experience of Ross at Tucows (an owner of Afilias), who found it blog-worthy to note on October 20 of this year that he had encountered his first .INFO website not run by a domain name company.  It could be that a significant portion of the .INFO registrations are used for non-English or porn usages (or non-English porn usages).  Maybe if someone published the list of the 100 most-visited .INFO sites . . .

I think that the usage issue is one of the consdierations important in deciding whether to go ahead with new gTLDs (which ball, I am afraid, is again in play).  My view is that unrestricted gTLDs are bad domain names, bad navigational aids, and bad branding devices, and are desired primarily by speculators and companies seeking contractual monopolies.  And if the .INFO names are used, it doesn’t change the picture all that much.  If there are 100 small companies with the same name, and two of them get  “guessable” gTLDs, then the DNS is not working for them.  Maybe gTLDs like .AERO and .MUSEUM are useful but the jury is still out.

And so, taking a page from Cato the Elder’s book, I conclude this blurb with the thought:

No more unrestricted gTLDs.

Registrant didn’t show up and still prevailed in a UDRP brought by ASDA against the domain name ASDASUCKS.NET.   The rationale of the decision is that, when discussing the first prong of the 3 prong test, the panelist, Tony Willoughby (whom I hold in high regard), held simply that ASDASUCKS is not confusingly similar to ASDA. 

This not-shocking assertion contradicts several “sucks” cases which acknowledged that EXAMPLE and EXAMPLESUCKS could not possibly be confusingly similar.  However those panelists, confronted with “dirty” registrant who had registered multiple “sucks” domain names and were obviously shaking down complainants, deliberately bent the definition of “confusingly similar” in order to find against the “bad” registrant.

While I am not disturbed by the outcome in this case, I am troubled by the implication of the following language in the decision:

“What is meant by “confusingly similar”? In the view of the Panel, if the word “confusingly” is to be given any meaning, the expression cannot equate to “similar”. The Panel construes “confusingly similar” in this context to mean that the Domain Name, by reason of its similarity with the Complainant’s trade mark, is likely to lead to a substantial (i.e. not insignificant) level of confusion among Internet users.

What sort of confusion? A confusion in the minds of Internet users that the Domain Name is or may very well be a domain name belonging to the Complainant or licensed by the Complainant. This is consistent with the meaning of the term “confusingly similar” in the trade mark context (which is appropriate in that the Policy is expressly designed to protect the legitimate interests of the trade mark owners) and the Panel can think of no other type of confusion that could be said to apply.”

Maybe the (IMHO) not-so-great language of “confusingly similar” needs to equate to similar for now (and that’s how I tihnk it is interpreted for the most part).  If confusingly similar does in fact mean confusingly similar, then that suggests that every UDRP should include an analysis of the Polaroid factors (or the appropriate equivalent test of confusion) because even identical marks may not be confusingly similar.  And we know that the UDRP is not the place for a lengthy multi-factor analysis.

Maybe the “confusingly similar” language of the UDRP needs to be amended to “identical or visually, phonetically or connotatively similar.”

I would also like to throw in another plug here for an appellate process for the UDRP.