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True story of the real cost of losing an expired domain name. Find out how to stop it.

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It Could Happen To You

© 2017 Elena Fawkner

No, I'm not talking about the warm and fuzzy movie that was
on cable the other night with Nicholas Cage and Brigitte Fonda.
I'm talking about another type of experience altogether - one of
the decidedly cold and nasty variety.




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You know what cybersquatting is, right?  It's when someone
registers a domain name that heretofore has been someone
else's trademark, with the intent to hold the name for ransom.
Sometimes these people identify trademarks in the market place
and snap up the domain name figuring that, sooner or later, the
owner of the trademark is going to want to register the domain
name and may even be prepared to pay handsomely for the
privilege. 

Other times, and this may even be worse, these trolls seize
domain names that have lapsed due to their owners failing to
renew them in time.  When the former owner tries to renew they
soon learn to their horror that someone else has gazzumped
them and are demanding several hundreds or thousands of
dollars to return their property to them.  As reprehensible as
this practice is, there's nothing new about it and the courts are
chock-full of cases brought by the outraged victims.

But put *yourself* in the shoes of the poor person who has
unwittingly allowed her domain name registration to lapse only
to find that "Dave Web" is now the rightful owner and wants
$550 from you to give it back. 

Now put yourself into these size elevens ... not only has Dave
Web kidnapped your domain name, the very one that used to
point to the site containing all of your hard work for the past
three years, the domain name that is synonymous with your
hard-earned reputation, not only that ... it now points somewhere
else. 

To a porn site.

We have now graduated from "mere" cybersquatting to criminal
extortion.  Not to mention criminal defamation.

This, believe it or not, is what happened to Jan Tallent-Dandridge
just this week.  Many of you will know Jan as the publisher of Rim
Digest (http://www.rimdigest.com).  You may also be familiar with
her other websites, http://www.marketingwarrioress.com and
http://www.jtdbizopps.com, although if you tried to visit the latter site
today, you'd get a rather unpleasant surprise.  This is the domain
name hijacked by Dave Web.

To give you the background to this sorry tale, I asked Jan's
permission to reprint her email to me

"... I had a domain name, jtdbizopps.com, for over two years but did
not renew it. Instead I set up marketingwarrioress.com as a mirror
and quit running ads, swaps, etc. for the old name.

"When it came up for renewal, I was going to renew it just to keep it
from being used for a year or so as I still had ads and link swaps out
there I could not track down.

"Network solutions would not release the name to me without my
paying them $70 for 2 years and THEN transferring it somewhere
else. I felt this was ridiculous since namebargain.com, etc. are only
$10 or so a year.

"I did not renew in time and when I did try, about a week after the
cancellation date, it was "in purge", to quote NS, and I would have
to wait 30 days or so for it to become available again.

"During this time an individual bought it somehow and offered it back
to me for $550.00.

"Needless to say, I declined, number one, I did not want to USE the
name anyway and number two, that was ransom!

"Well, tonight I found out that this company is parking a PORN site at
that domain name and once again offered to sell it back to me for
$550.00.   I feel this is obvious blackmail but not only do I not have
the money, I would not pay that ridiculous amount even if I could.

"My eBook had a "live" link that was accidentally left as
jtdbizopps.com instead of marketingwarrioress.com though both
my compiler and I thought they had all been changed.

"I was told off by a new subscriber who eagerly downloaded my
eBook and then clicked the link that went straight to the porn
site.  I have spent the past 3 years working myself half to death,
as I know YOU know about, and now my credibility and NAME
are in danger due to this "person" using my ex-domain for this
purpose.

"I know there is no way to get the name back without paying for it
and/or stopping this "person" from using it for this or any other
business, but I am hoping there is some damage control I can do
to maybe make it worth his/her/ITS while to discontinue using a
domain I can prove I had been using for over 2 years in this way
if it hurts my business or name in any way.

"Sorry for rambling, but once I quit crying, screaming, throwing
up, crying and screaming some more I am now down to
incoherent stuttering.

Jan T-D
Marketing Warrioress and Publisher
(Rim Digest)
charter iCop member"

My primary motivation in writing this article is to help get the word
out about what has happened to Jan so that, hopefully, those who
do not know her will realize that she is, in fact, an innocent victim in
all of this and not some nefarious person who gets her kicks from
enticing people to visit a porn site when they thought they were
visiting an internet marketing site.

That said, what lessons can we all learn from Jan's experience?
Well, there are a few ...

1.  KNOW WHEN YOUR DOMAIN NAMES EXPIRE AND RENEW
THEM BEFORE THEY LAPSE

First and foremost, know when your domain names expire and
take steps to renew them before they lapse.  As Jan's experience
illustrates only too well, there are vultures out there just waiting
to swoop if you make even one false move.  There are no second
chances in this business and, until the law catches up with the
reality of doing business online, it's every man and woman for
themselves.

2.  SOME THINGS COST MORE THAN MONEY

The second point to note is that Jan allowed her registration to
lapse because she wanted to spend $10 rather than $35 (per year)
to renew the name.  That decision cost her a whole lot more than
$25.  Once your good name and reputation are cast into doubt, no
amount of money can get them back.

I know Network Solutions cop a lot of flak and possibly deservedly
so, if some of the stories I've heard are true.  All I know is that my
domain names are registered and renewed with them and I haven't
had any problems (touch wood). 

Bottom line, make sure your names are registered, stay registered
and that you use a reputable domain registrar.

3.  KNOW YOUR RIGHTS

=> Domain Name Registrations Generally

As a general rule, you can register any domain name that is not
already registered (subject to trademark considerations discussed
below).  If your domain name is sufficiently distinctive, for example,
jtdbizopps.com, the bit before the .com may also be a common law
trademark (unless, of course, it’s registered and then it’s a registered
trademark).  If you DO have a distinctive domain name, then the
discussion in the next section applies to you.

If you don’t have a distinctive domain name, however, and by this
I mean a name that is “descriptive” or in general usage, for example,
“home-business.com”, then this name will be neither a common law
trademark nor a registrable trademark.

In this case, once you’ve lost your domain name registration,
you are, not to put too fine a point on it, screwed.  You don’t have
much in the way of recourse other than for the “generic” legal
avenues which may well be too expensive for you to pursue.
These avenues are discussed below.

=> Domain Names and Trademarks

On the other hand, if you have a distinctive domain name (i.e.,
one that is not in common usage), then that name is also
likely to be a common law trademark (unless, as stated above,
you’ve registered it, in which case it’s a registered trademark.
And, if you do have a common law trademark, I would recommend
that you register it.  Registration can only strengthen your
position.)

The law generally sides with the pre-existing trademark owner
over the domain name holder.  In addition, the U.S. has
enacted the federal Anti-Cybersquatting Consumer Protection
Act (the “Act”).  Under the Act, you can sue a cybersquatter to
get back your domain name and sometimes damages to boot.

So, what’s actionable under the Act?  Here’s an extract from
the Act itself:

“A person shall be liable in a civil action by the owner of a mark,
including a personal name which is protected as a mark ... if,
without regard to the goods or services of the parties, that person –

(i) has a bad faith intent to profit from that mark ...; and
(ii) registers, traffics in, or uses a domain name that –

(I) in the case of a mark that is distinctive at the time of registration
of the domain name, is identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at the time of
registration of the domain name, is identical or confusingly similar
to or dilutive of that mark; or
(III) is a [registered] trademark ...”

In terms of what constitutes “bad faith”, the Act provides that the
court may consider factors (among others) such as:

“The person’s [i.e., the alleged cybersquatter’s] intent to divert
customers from the mark owner’s online location to a site
accessible under the domain name that could harm the goodwill
represented by the mark, either for commercial gain or with the
intent to disparage the mark, by creating a likelihood of confusion
as to the source, sponsorship, affiliation, or endorsement of the
site; and

“the person’s offer to transfer, sell, or otherwise assign the domain
name to the mark owner or any third party for financial gain without
having used, or having an intent to use, the domain name in the
bona fide offering of any goods or services, or the person’s prior
conduct indicating a pattern of such conduct.”

A common problem is identifying the culprit.  In Jan Tallent-
Dandridge’s case, for example, the only information about the
perpetrator is:

offers@NameRegister.com
Registrant:
Dave Web (JTDBIZOPPS-COM-DOM)
Buy This Domain
5 Tpagrichnery St ., # 33
Yerevan, Armenia 375010
AM
208.978.3555
208.978.3555
offers@NameRegister.com

Call me skeptical, but somehow I doubt that’s a real name and
address.  Fortunately, the Act has anticipated this problem:

“The owner of a mark may file an in rem civil action against
a domain name [an “in rem” proceeding is an action against the
thing rather than against a defendant - in this context, it means
that the court can make an order in relation to the domain name
itself rather than against Dave Web personally such as ordering
him to surrender the domain name] ... “.

And as for remedies, assuming you are able to identify your
particular scumbag, these include injunctions and damages
(either actual or, in a case where your individual name is at
issue, statutory damages of between $1,000 and $100,000
per domain name).

=> Generic Legal Avenues

Whether or not you can pursue an action under the Act, there
are a number of legal avenues open to anyone in Jan’s
situation (and by that, I mean, someone who is using the
domain name to point to a site that damages your reputation).

First off, let’s recognize this practice for what it is.  Extortion.
Pure and simple.  It’s a crime.  So is criminal defamation. 

Write a strongly worded cease and desist letter to the offender,
threatening to report them to the District Attorney and/or the
police and the Federal Trade Commission as well as instituting
a civil suit.  You are more likely to get a result if the letter comes
from your attorney.

If the offender doesn’t comply, report them.  As for what action
will be taken, your guess is as good as mine but at least you’ve
done what you can.

If you have the resources to do so, you can also bring civil
proceedings against the offender on the same grounds.  The
conduct in question is egregious enough that you may well get
punitive damages awarded in your favor.

Finally, and I HATE to even suggest this, the most cost-effective
option of all may be to pay what is demanded.  That at least gets
the domain name back under YOUR control where it belongs. 
And there’s nothing to stop you turning around and reporting the
individual in question to the DA, police, FTC etc..  In fact, paying
over the money may be your best chance of identifying the
perpetrator so you can initiate a criminal prosecution.

Of course, all of this is damage control which is a VERY poor
substitute for prevention.  So go back to Item 1. and calendar
your domain name due dates to avoid getting into this mess
in the first place.

_________________________

Elena Fawkner is editor of A Home-Based Business Online ... practical ideas, resources and strategies for your home-based or online business. http://www.ahbbo.com

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