Guess who owns the Internet domain name microsoftsucks.com? Not Microsoft. Guess who owns applesucks.com? Not Apple.
According to a WHOIS lookup performed at domain name registrar fabulous.com on April 2, the registrant of microsoftsucks.com is an entity named "Secaucus Group, Inc.," and the listed "administrative contact" for Secaucus Group Inc. is someone named Dan Parisi. Secaucus Group has been the ostensible registrant of that domain since May 21, 1998. Similarly, according to a WHOIS lookup performed on April 2 at domain name registrar GoDaddy.com, "Chong Sam Lee" of Ontario has been the ostensible registrant of applesucks.com since February 23, 1999.
There are many ways for disgruntled ex-customers to say bad things about you on the Internet, like RipOffReport.com, Complaints.com and even Facebook, but there's something about the intimacy of having [yourbrand] being right in there next to "sucks" that makes this more personal-and problematic.
So why can't Apple and Microsoft wrest control of these domain names away from Parisi and Chong Sam Lee? The most likely answer is that neither Parisi nor Chong Sam Lee have done anything wrong under United States domain name law that would give Apple or Microsoft a legal remedy. Dan Parisi and Chong Sam Lee got there first. There's no way to get those names back unless the registrant does something wrong, like commit cybersquatting.
And the "sucks domains," as they are called (no kidding), are just one example. What if someone had [yourbrand].xxx and it went to a porn site, or what if a competitor had [yourbrandBoise].com and caused potential customers to find their site instead of yours? Even if you perform aggressive search engine optimization, if someone owns a lot of domain names that include "[yourbrand], it can create problems.
"New generic Top Level Domains" ("new gTLDs") add to the problem. In the old days, there were a manageable number of extensions such as .com, .net and .org. But the domain name system's governing body, the Internet Corporation for Assigned Numbers and Names ("ICANN"), has created almost two thousand new extensions. And many of these new extensions are common words, so there can now be .tires, .bank and .insurance, for example. It seems that Geico would want to own geico.insurance instead of letting Dan Parisi get it.
Some suggestions for keeping control of your domain name portfolio:
1. Register domain names with a credible domain name registrar as soon as you come up with a new brand or trademark or business name.
2. Be aware of variants and misspellings, and register a reasonable number of domain names that incorporate those as well.
3. Be mindful of both the original generic Top Level Domains like .com, .net, .org and .xxx and the new generic Top Level Domains like .tires and .bank and .insurance when you are developing your domain name strategy.
4. Register your trademarks with the United States Patent and Trademark Office so you can have an official registration to point to if you need to invoke a formal process to try to get a domain name back. Remember, though, that not all domain names can be recovered if the registrant is not doing anything wrong.
5. Supplement your domain name registration strategy by employing search engine advertising programs like Google AdWords, which allow you to buy ads on Google that incorporate your trademarks so that when customers search for you, they find you instead of a competitor who bought the Google AdWords that incorporated your brands when you did not.
6. Try to recover domains that you failed to register (like [yourbrand]sucks.com by using any of the several techniques currently available under U.S. law, like a cybersquatting lawsuit or a complaint filed under the Uniform Dispute Resolution Policy promulgated by ICANN.
Copyrights
Copyrights are an author's stock in trade, whether the author has written a book or a blog post. Anyone who writes, photographs, sculpts or otherwise places a creative idea into some type of tangible medium creates a copyright. The resulting copyright is a personal property right owned by the person (the "author") who took the picture, wrote the words or sculpted the clay (the "work"). "Copyright" is thus a noun, not a verb.
Many authors are finding new outlets for their created works on the Internet. YouTube, Facebook, Pinterest, Vine, Flickr, Tumblr, Amazon, Kobo, Twitter and Reddit are just a few of the current crop of social media platforms that permit instantaneous sharing of content to a potentially worldwide audience.
With this vast new exposure comes the concomitant risk that an author's work will be copied and used without permission. This may seem innocuous, but when that which is copied is a book that the author sells for $2.99 or a photo that the photographer licenses for $100, the financial impact to the copyright owner whose works are being stolen soon becomes apparent.
When someone copies or sells the work without the author's permission, that is copyright infringement. The money lost by an author as a result of the unauthorized copying is the author's "damages." It is difficult, at best, to obtain redress against an infringer on the Internet because of its inherently large and anonymous architecture. If an author wishes to have some type of remedy against an Internet copyright infringer, she should remember these five rules before placing her works on the Internet:
1. Go to the copyright.gov website and timely register her copyrights in the works she authors. Registration is inexpensive and permits the copyright owner to maintain a copyright infringement lawsuit in federal court, if such is needed to address the infringement.
2. Read the terms of service of the sites on which she posts content. Some terms of service give the website broad rights to use and re-use content without either having to pay for it or give attribution. For example, Twitter's terms of service state: "By submitting, posting or displaying Content on or through [Twitter], you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed)."
3. Be familiar with how to use a "take down notice" under the Digital Millennium Copyright Act so that she can cause her illegally copied works to be removed from websites where they are displayed.
4. Be familiar with services like Digimarc.com that offer commercial assistance to authors to help police content on the Internet.
5. Set up Google Alerts and use Google Image Search to monitor the Internet for unauthorized appearances of her works. For example, I have Google Alerts set up on my novel, The Cure, and my publisher, Diversion Books. When someone places a copy of The Cure on a website, I get an email notice and can determine if I want to have it removed, if it was posted without my or my publisher's permission.
It may be that an author has a "share-and-share-alike" mindset and does not worry about acts of copyright infringement on the Internet, even if such acts steal money from the author's pocket. In my experience as a copyright lawyer, even if money is not the motive, it makes sense to police how content is being used on the Internet and act, when appropriate, to seek redress. If certain acts are ignored, then, as the old saying goes, the camel's nose is in the tent and it is much more difficult to obtain a remedy in the future when it really does matter.
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Brad Frazer is a partner at Hawley Troxell where he practices Internet law, publishing law and copyright law. He is a published novelist and a frequent author of Internet content. He may be reached at bfrazer@hawleytroxell.com.
Published: Thu, Apr 23, 2015
