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Domain Name Taste Test

By all accounts an acquired taste, Domain Name “tasting” has become all the rage amongst the well-heeled CyberSquatter set. Domain Name Tasting involves “purchasing” a domain name and then returning it within five days to get a refund. The bad guys (don’t worry ladies, I am using the Midwestern gender-neutral form – you get to be bad too) often purchase a misspelling of a popular domain name and point it to a website filled with pay-per-click ads. If the revenue from the ads appears to outweigh the $6/yr it costs to register the domain name for real, the bad guy goes ahead and registers the name. If the revenue comes in low, the bad guy returns it for a refund. Its like returning that dress after wearing it to the prom.

An even more insidious version of domain name tasting involves Domain Namenapping as well. Here is how it works. Marketing tells you to check the availability of a domain name they like for your new product. You go to a domain name registrar and query to see if the domain name is available. You are in luck! The domain name is available. You tell marketing, get approval and return to the registrar to buy the domain name. But what is this? Somebody off Santa’s naughty list just tasted your name after spying on your search. Now all of your new product press is driving traffic to this Cybersquatter’s website.

And that is not all. On June 14, 2007, Internet Corporation for Assigned Names and Numbers (ICANN) staff prepared a 39 page Report on Domain Name Tasting and presented it to the Generic Names Supporting Organization (GNSO) listing these additional problems attributable to Domain Name tasting:

1. Destabilization of the Domain Name System – The tremendous volume and rate of
registrations and deletions associated with tasting and kiting is described as placing operational loads on Registry systems that are orders of magnitude above steady-state operations. Such incessant, systematic stress on registry systems could cause instability in the gTLD namespace or, worse, the entire domain name system.
2. Creation of consumer confusion – The high number of domain names estimated to
be tied up in domain tasting and kiting every day (2-4 million) can result in consumer confusion and undermine confidence in the Domain Name System as domains
repeatedly alternate between availability and registration for 5 day periods and
legitimate users are prevented from registering their desired domain names. This user
confusion is increased by the transient nature of many of the names, where they are
there one day, but gone the next.
3. Increased costs and burdens to legitimate registrants – The ability to control (at no cost) domain names that are potentially in conflict with other registered names
increases the effective cost of a domain name to its owner through increased defensive registrations and staff resources needed to monitor such potential conflicts. Registry costs must also be increased due to the volume of adds and deletes.
4. Facilitation of Trademark Abuse – Automated registration systems permit registration of virtually every typographical permutation of a trademark in order to test for traffic, facilitating trademark infringement on a massive level. Further, by the time the trademark owner discovers that a domain name identical or similar to its trademark has been registered, it is often too late for the trademark owner to act as the domain name has already been deleted along with the Whois data.
5. Facilitation of Criminal Activity – Due to the transient nature of AGP-deleted
registrations, it is difficult for law enforcement to trace the registrant of tasted domains, which makes these domains ideal candidates for phishing, pharming, and other forms of internet fraud.

The problem of domain name tasting is large and getting larger. To reduce the impact of domain name tasting on your company, consider purchasing domain names without first searching their availability. If the domain is already taken, it cost you nothing. If the name is available, however, for $6 you saved yourself a lot of headache at the hands of a domain name taster.

If you would like to find out more about domain name tasting, check out ICANN’s public participation site. Bon Appétit

Thanks to Matt Krigbaum for the story idea. BTW/As of Thursday, Matt is the proud parent of Zachary Austin Krigbaum 10 lbs. 22 1/2 inches [which is pretty much the collective birth weight of all my children put together]. Mom (incredibly) and baby are doing great.

Brett Trout

Posted in Trademark Law. Tagged with , , .