Never underestimate the value of a good domain name! As any website owner will tell you, http://www.rose.com, by any other name, is likely to lose customers.

About a week ago, my colleague’s nephew, Kevin Bortnick, found himself in a domain name predicament. His plight is interesting and he has graciously permitted us to blog about his situation, which provides some useful context for a discussion about domain name disputes.   

Kevin is a talented website developer who used the name “KBortnick” or “KB” for his internet business. In November of 2005, he registered the domain name kbortnick.com for a period of four years, at a cost of about $10 per year. Although the domain name expired in November, 2009, he explained that “I was moving out & had a bit of a money crunch, so I figured I’d renew it in about a month, because it really wasn’t worth anything & I figured it would be fine….”   

A couple of weeks ago, he attempted to re-register the name, only to discover that someone else had purchased it. That unknown ‘someone’ had immediately put it up for sale on a website that auctions off domain names, http://seto.com, subject to a minimum bid of $480. As you can imagine, Kevin was livid. “The highest I’ve ever seen my domain name appraised at was about $30”, he exclaimed, “and most places didn’t even give it that!”   

(I empathized with Kevin’s situation. Over Canadian Thanksgiving, while I was sitting before the computer in a state of turkey-induced lethargy, I was suddenly roused from my stupor by the discovery that the domain name “pamelapengelley.com” could be registered for the low, low price of just $10 a year. I may soon write a post that is entitled “How I learned the hard way that just because you can make a hideously tacky personal flash website dedicated to your glorious self doesn’t mean that you should make one.” But I digress…)   

Kevin’s dilemma got me thinking –  is this what is known as “cybersquatting”?  Is there any remedy for this sort of thing? Does Kevin have any recourse?

In fact, there are a couple of different mechanisms for resolving a cybersquatting dispute, and my understanding of them was greatly assisted by some basic knowledge about the development of the Internet and some tech-related acronyms like “DNS”, “IP” and “ccTLD”. If these terms are unfamiliar to you, then I ask for your indulgence while I lay out some of the basic IT background. It’s a bit lengthy so if you are computer-savvy, you may just want to skip part 1.   

1. First Thing’s First – Everything you Never Intended to Learn About the Internet Made Easy

A.     Computer Networks, DARPA, ARPAnet, Ethernet, Wireless, 
         PAN, WAN, LAN and the Internet   

B.     IP Addresses, Servers, Web Hosting, Domain Names, DNS,
         gTLDs, ccTLD, SLDs   

C.     ICANN, IANA, Domain Name Registries and Registrars   

D.     The Whois Protocol  

E.      Domains by Proxy, Inc.

2. What is Cybersquatting?

3. Is there any Recourse? 

A.     Arbitration Under ICANN’s “Uniform Domain Name Dispute
         Resolution Policy”

B.    Legal Action Under the  ”US Anticybersquatting Consumer 
        Protection Act”

4.     Conclusion

1. First Thing’s First – Everything you Never Intended to Learn About the Internet Made Easy

A.  Computer Networks, DARPA, ARPAnet, Ethernet, Wireless, PAN, WAN, LAN and the Internet

Did you know that the Internet was developed by the United States Department of Defense? Spurred by the USSR’s launch of Sputnick, it formed the Advanced Research Projects Academy (“ARPA”, now “DARPA”) in 1958 in order to regain a technological lead. DARPA sought to develop, among other things:

A network of such [computers], connected to one another by wide-band communication lines [which provide] the functions of present-day libraries together with anticipated advances in information storage and retrieval and [other] symbiotic functions.

Sound familiar? A computer network simply refers to a group of computers that are connected to each other and share information. It was ARPA that funded the development of the first operational computer network, called…wait for it….“ARPAnet” – the precursor to the modern day Internet.

Today, computer networks can be classified according to the method by which the devices are connected. For example, Ethernet refers to networks that are connected by physical wiring. Wireless technology is designed to connect devices without wiring, using radio waves or infrared signals.

Networks can also be classified according to their scale. For example:

• Personal Area Network (PAN) a computer network used for communication among computer devices close to one person. Some examples of devices that are used in a PAN are personal computers, printers, fax machines, telephones, PDAs, scanners, and even video game consoles. A PAN may include wired and wireless connections between devices. The reach of a PAN typically extends to about 30 feet (approximately 9 meters)
• Local Area Network (LAN): a network that connects computers and devices in a limited geographical area such as home, school, computer laboratory, office building, or closely positioned group of buildings. Each computer or device on the network is a node. Current wired LANs are most likely to be based on ethernet technology.
• Wide Area Network (WAN):  a computer network that covers a large geographic area such as a city, country, or spans even intercontinental distances, using a communications channel that combines many types of media such as telephone lines, cables, and air waves. A WAN often uses transmission facilities provided by common carriers, such as telephone companies.

Usage, trust level, and access right often differ between these types of network. For example, LANs tend to be designed for internal use by an organization’s internal systems and employees in individual physical locations (such as a building), while WANs may connect physically separate parts of an organization and may include connections to third parties.

The Internet is a vast network of interconnected governmental, academic, public, and private computer networks. A computer that “connects to the internet” is joining this network of computers in order to access and share information with the other computers in the network.

B.   IP Addresses, Servers, Web Hosting, Domain Names, DNS, gTLDs, ccTLD, SLDs

The Internet is a bit like a postal service for the sharing of electronic data – in order to receive and send mail, you will need to know your own address and the address of your recipient. Generally speaking, each computer that connects to the Internet is assigned an ‘address’ to receive information. Search Engines are telephone directories that allow you to look up the addresses of other computers on the network.

In order to download a file, for example, your computer needs to be able to find the address of the computer that contains the information you are looking for in order to request the information.  Your computer also needs its own mailing address in order to receive the information. These Internet addresses, called Internet protocol addresses, or ‘IP’ Addresses are four groups of numbers, separated by periods, such as “215.25.356.1”.   If you are interested in seeing your computer’s IP address, just click on this link: http://www.whatismyip.com.

Now, this blog is just one big long piece of computer code that we have put together (with much coffee and cursing). While I could technically make this blog file available off of my own computer by sharing my IP address, you would only be able to look at the blog when my computer was online (and it would take up a lot of my computer’s processing time to send out the blog to every computer that requested the file). Instead, Rick and I have hired a private company to post the files on a ‘server’ – a big computer that is (supposed to be) online at all times so that our blog file is available at an IP address that can be accessed 24-7. This service is known as a Web Hosting. There are various levels of service and various kinds of services offered.   

You will note that this blog’s web address is “cyberinquirer.com”, not “215.23.51.34” – good thing, or we probably wouldn’t have many viewers.  Needless to say, it is much easier for us to remember words than a series of numbers. For this reason, DARPA developed a method of assigning words to IP addresses. These words are called “Domain Names”. The process of registering words to IP addresses is called the Domain Name System or “DNS”.     

A domain name system requires that someone maintains a registry that keeps track of which domain names correspond to which IP addresses in order to ensure that a computer that searches for a domain name is directed to the right IP address – someone has to be responsible for all of the administration and management of this registry. Management of the DNS is a huge task. DARPA decided that the best way to handle it would be to divide the DNS registry into separate groups, each with its own administration (they wanted to keep things simple), and label the domain names accordingly. DARPA called these groups Top Level Domains (“TLDs”).  Each domain name that is registered will be assigned to a TLD. How did DARPA decide to group the domain names? Well, they came up with two different methods. One way was to categorize the domain names by the type of user, as follows:   

• .com (Commercial)
• .gov  (Government)
• .edu  (Education)
• .mil  (Military)
• .org  (Organization)

The second option would be to categorize domain names based on location, by applying a two letter ISO-country code such as .uk (United Kingdom), .ca (Canada) or .us (US). Top-level domains that are based on country codes are given the short form of “ccTLD”. The other domain names are referred to as “generic”, or “gTLD”.  (DARPA also created a temporary domain name, .arpa, to deal with certain transitional and technical processes that don’t concern us). During the growth of the DNS, it has became desirable to create additional TLDs. As of June 2009, there are 20 generic top-level domains and 248 country code top-level domains.   

The DNS is a hierarchical naming system. The name immediately to the left of the TLD is the second level domain name (SLD), and includes the TLD, for example, in ‘thisisan.example.com’, the SLD is ‘example.com’. Second-level domains commonly refer to an organization that has registered the domain name and who are responsible for the administration of names delegated under their SLDs. A domain name can also have a third-level domain,  written immediately to the left of a second-level domain. There can be fourth- and fifth-level domains, and so on, with virtually no limitation.  

C.     ICANN, IANA, Domain Name Registries and Registrars

When the Internet was emerging out of the ARPAnet, there was only one organization that handled all domain registrations, which was DARPA itself. It was later privatized, and ultimately, in 1999, the management of DNS was transferred to a non-profit US company called the Internet Corporation for Assigned Names and Numbers (“ICANN”). ICANN operates the Internet Assigned Numbers Authority (“IANA”), an administrative entity that oversees the allocation of IP Addresses and the Domain Name System.

Administration of the DNS is too big a job for ICANN and IANA to handle on their own. Instead, they have recruited private organizations to handle the administrative work for each top-level domain (TLD) is maintained and serviced technically by an administrative organization, operating a registry. A registry is responsible for maintaining the database of names registered within the TLD it administers. So for example, ICANN has allowed registries for the generic TLDs to be operated by the following companies:

• .aero, (reserved for the global aviation community) sponsored by Societe Internationale de Telecommunications Aeronautiques (SITA INC USA)
• .asia, (reserved for the Pan-Asia and Asia Pacific region) sponsored by DotAsia Organisation
• .biz, (restricted to businesses), operated by NeuStar, Inc.
• .cat, (reserved for the Catalan linguistic and cultural community), sponsored by Fundació puntCat.
• .com, operated by Verisign Global Registry Services
• .coop, (reserved for cooperatives) sponsored by Dot Cooperation LLC
• .info, operated by Afilias Limited
• .jobs, (reserved for the human resource management community) sponsored by Employ Media LLC
• .mobi, (reserved for consumers and providers of mobile products and services) sponsored by mTLD Top Level Domain, Ltd.
• .museum, (restricted to museums and related persons), sponsored by the Museum Domain Management Association International (MDI)
• .name, (restricted to individuals), operated by Verisign Information Services, Inc.
• .net, operated by Verisign Global Registry Services
• .org, operated by Public Interest Registry
• .pro, (restricted to licensed professionals) operated by Registry Services Corporation (dba RegistryPro)
• .tel, (reserved for individuals and businesses to store and manage their contact information in the DNS) sponsored by Telnic Limited
• .travel, (reserved for entities whose primary area of activity is in the travel industry) sponsored by Tralliance Registry Management Company, LLC

(As a quick aside, in 2006, ICANN turned down a proposal by the organisation ‘ICM Registry’ to sponsor a .xxx domain for the porn industry.  The proposal was highly contentious owing to concerns of conservative groups that it would legitimize pornography. An interesting article about it can be found here).

Anyhow, getting back on topic, some of these sponsoring registries will issue domain names directly to end-users. On the other hand, the major generic top-level domain registries, such as for the COM, NET, ORG, INFO domains and others, use a registry-registrar model consisting of hundreds of domain name registrars (see lists at ICANN or VeriSign). In this method of management, the registry only manages the domain name database and the relationship with the registrars. The registrants (users of a domain name) are customers of the registrar, in some cases through additional layers of resellers.

Let’s consider kbortnick.com. Well, we now know that .com is a gTLD, and the registry is administered by Verisign. As we just noted, Verisign doesn’t issue domain names directly; instead, it has authorized certain private commercial companies, called registrars, to take care of customer domain name registration for them. One of the largest registrars is a company called GoDaddy, which issues domain names for a number of the TLDs. (Incidentally, GoDaddy also provides web hosting services and is the host for this blog).    

Kevin would originally have gone to a company like GoDaddy and performed a search of his proposed domain name, kbortnick.com, to ensure that it was available. Upon discovering that it was free, he would have then registered the domain name for a certain period of time – in his case, four years. He could then affiliate the domain name with the IP address of a file on a server that contained his webpage. 

As of 2009, the cost of a standard domain name generally ranges from a low of about $7.50 per year to about $35 per year. The maximum period of registration of a domain name is generally 10 years. (Some registrars are offering longer periods of up to one hundred years, but such offers involve the registrar renewing the registration for their customer. The one hundred year domain name registration would not be in the official registration database. Some packages of Internet services, such as web hosting, include the domain registration in the total package pricing.)

 Well, so far, so good…unless your domain name expires.   

D.     Domain Parking and Online Domain Name Auctions

Now, let’s look at what happened when Kevin went to renew his domain name. He went to GoDaddy and requested the domain name “kbortnick.com”. This time, however, he was told that the domain name was already taken:   

GoDaddy helpfully suggested that Kevin consider registering his domain name under a different top level domain, like .net, .org or .us at a cost of around $8-$15 per year, but…it’s just not the same.   

Kevin would then have looked up www.kbortnick.com to see if he could figure out who had registered his site. Perhaps there was a Kelly Bortnick or a Klaus Bortnick out there who had set up a personal webpage? Nope. Instead, Kevin was confronted with this rather bland webpage of links for cheap flights to China and tropical fish diseases:   

The domain name kbortnick.com has been “parked” – when a person has a domain name that isn’t in use, they can forward the name to a server that posts a bunch of commercial ads.  Domain parking is advertised as “an easy, free way to potentially earn money and improve the chances of selling your domains.”

The fact that kbortnick.com has been parked is a good indicator that the domain name is up for sale. Indeed, kbortnick.com has been parked at an online company called www.sedo.com.  Sedo is a (legitimate) online auction service – think of an ebay for domain names that also offers free domain name parking.  When I  search for kbortnick.com on Sedo, I am told that the domain name is for sale by the registered owner and I am asked to make an offer.   

I figure that if I can purchase kbortnick.com at a reasonable price, Kevin would be happy, Rick would be happy…and this would be the end of my post. So I decide to make an offer of $30 USD. This is what happens:   

I am told that my bid contains “errors”. My bid is too low – the seller has set a minimum bid price of $480 USD. Ouch. I search for information about the seller and I discover that this person sells a very high volume of domain names on Sedo. Hmmmm.   

Domain names are often analogized to real estate in that (1) domain names are foundations on which a website (like a house or commercial building) can be built and (2) the highest “quality” domain names, like sought-after real estate, tend to carry significant value, usually due to their online brand-building potential, use in advertising, and many other criteria. Sometimes domain names will sell for millions of dollars. For example, according to an article published by ABC News in March of 2009,  the top 10 most expensive domain names have sold for the following:   

1. Fund.com, $9.99 million   

2. Porn.com, $9.5 million   

3. Diamonds.com, $7.5 million   

4. Toys.com, $5.1 million   

5. Vodka.com, $3 million   

6. CreditCards.com, $2.75 million   

7. Computers.com, $2.1 million   

8. Seniors.com, $1.8 million   

9. DataRecovery.com, $1.66 million   

10. Cameras.com, $1.5 million   

10. Tandberg.com, $1.5 million   

Certainly, some domain names have value…but ”kbortnick.com”? Kevin advised that the most he could have gotten for it is $30. It wouldn’t be worth $480 to anyone…except, perhaps, Kevin himself. It appears that someone had noticed that Kevin had allowed kbortnick.com to expire and bought it at a nominal cost in the hope that Kevin would be willing to pay a significant premium to get it back. Not very sporting, if I do say so myself.   

D.     The WHOIS Protocol

Is there any way that Kevin can find out who has registered his domain name? Surprisingly, there is! As  discussed above, ICANN has authorized certain companies, called registrars, to issue domain names for certain TLDs. Only a designated registrar may modify or delete information about a domain name. The competition enables end users to choose from many registrars offering different services at varying prices. (A list of accredited registrars can be found by scrolling down the page of this link: http://www.icann.org/en/registrars/accredited-list.html).

Interested in becoming an ICANN-accredited registrar? It costs money. Each ICANN-accredited registrar must pay a fixed fee of US$4,000 plus variable fees designed to total US$3.8 million, and it has to follow various policies and procedures.

In particular, ICANN requires that each registrar publish the information about the domain names in the registry for their TLD. At its expense, a Registrar has to provide an interactive web page providing free public query-based access to up-to-date (i.e., updated at least daily) data concerning all active Registered Names for each TLD in which it is accredited. This public database, called the WHOIS Database, has to show the following information:

a)  Each domain name that has been registered, as well as the nameservers (the name of the computer that maps the domain name onto an IP address);

b)  The identity of the Registrar that registered the name;

c) The original creation date of the registration;

d) The expiration date of the registration;

e) The name and postal address of the Registered Name Holder;

f) The name, postal address, e-mail address, voice telephone number, and (where available) fax number of the technical contact for the Registered Name; and

g) The name, postal address, e-mail address, voice telephone number, and (where available) fax number of the administrative contact for the Registered Name.

Therefore, in order to find out the identity of the “mystery registrant” of kbortnick.com, the first step is to check the WHOIS database for the .com TLD.  You can simply type “who, lookup and  .com” in Google; they are easy enough to find online. In this case, I went to http://whois.domaintools.com/ and entered “kbortnick.com” in the search bar.  If you check it out, you will see that the site provides you with a surprising amount of information, including a website profile, complete registration history, and server stats. It also advises that kbortnick.com is available for sale on Sedo.

From WHOIS, we can see that Kevin’s registration expired on November 27, 2009. Someone then purchased kbortnick.com for another year, until November 27, 2010. The question is, who is this person? This is what WHOIS shows us:  

According to WHOIS, the registered owner of kbortnick.com is Domains By Proxy, Inc.  Now…just who is this?

E.     Domains By Proxy, Inc. 

Given that ICANN requires that the information in the WHOIS database be made publicly available, people may understandably have reservations about using their private, personal information to register a domain name.

Well, with every problem, there is a business opportunity. Domains By Proxy is a company headquartered in Scottsdale, Arizona that is affiliated with GoDaddy. For a fee, this company will agree to register your domain name for you, in its name. In this way, your personal information is kept off of the WHOIS database.

This means, however, that Domains By Proxy is the registered owner of the domain name.  Domains By Proxy certainly doesn’t want to be implicated in their customer’s legal battles, and its ”Domain Name Proxy Agreement” (found here) seems to spell this out; in addition to requiring that customers sign various hold harmless clauses and indemnity agreements, customers must:

• keep the company notified of their current personal information;
• agree to abide by the terms and conditions of ICANN and  the applicable Registrar;
• comply with the ”Uniform Domain Name Dispute Resolution Policy” (which I will discuss in more detail below); and
• agree that if Domains By Proxy is named as a defendant in, or investigated in anticipation of, any legal or administrative proceeding arising out of a domain name registration, Domains By Proxy may remove itself from the WHOIS database and list their customer as the registrant.

If you seek the identity or account information of a Domains By Proxy customer in connection with a civil legal matter, you must fax, mail, or serve Domains By Proxy with a valid subpoena. Information about how to serve Domains By Proxy with a subpoena can be found here.  Based on the terms of its Proxy Agreement, however, I suspect that, to the extent that Domains By Proxy is named in a dispute as  the owner of the registered domain name, it quickly will remove itself as owner of the domain name in the WHOIS database and post the true owner’s information in short time.

3. What is Cybersquatting? 

Cybersquatting (also known as ‘domain squatting’)  refers to the registration of  domain names containing trademarks or individuals’ names by people who have no intention of creating a legitimate web site, but instead plan to sell the domain name to the trademark owner or a third party. Cybersquatters exploit the first-come, first-served nature of the domain name registration system to register names of trademarks, famous people or businesses with which they have no connection. Since registration of domain names is relatively simple and inexpensive – less than US$100 in most cases – cybersquatters often register hundreds of such names as domain names.

As the holders of these registrations, cybersquatters often then put the domain names up for auction, or offer them for sale directly to the company or person involved, at prices far beyond the cost of registration. Alternatively, they often keep the registration and use the good name of the person or business associated with that domain name to attract business for their own sites. A couple of variations of cybersquatting include:

• Typosquatting:  A typosquatter takes advantage of the fact that people can misspell domain names, and will register names with typographical errors. The squatter will then park the domain name, and collect income any time an Internet user clicks on one of those advertisements – for example, www.googel.com or www.oogle.com. Alternatively, the cybersquatter may try to sell the domain name to the owner of the true name at a price many times what the cybersquatter paid for it. 
• Renewal Snatching: Cybersquatters may rely on the fact that a domain name owner may forget to renew a domain name registration and allow it to lapse. Because domain name registrations last for a fixed period of time, if the owner of a domain name does not re-register the domain name prior to expiration, then the domain name can be purchased by anybody. In fact, registrars like GoDaddy will allow others to “back order” a registered domain name. This means that if a domain name registration lapses for even a second, it will be instantly registered to the person who has placed it on back-order. Cybersquatters also rely on the fact that trademark holders often forget to re-register their domain names – they will snatch up a domain name as soon as it becomes available and then attempt to sell it back to the original owner at a high premium. This process is often referred to as “renewal snatching.”

Of course, there is also plain old trademark infringement – registering a domain name (or a confusingly similar domain name) using someone else’s name or trademark in the hope of benefiting from the goodwill associated with the trademark.  

Cybersquatting is a big business, and cybersquatters are out to make money.  They may own many thousands of domain names, which are typically misspellings or variations of others’ trademarks. According to the World Intellectual Property Organization (“WIPO”), the number of cybersquatting complaints grows each year, with a record number of complaints received in 2008. The industry that filed the most complaints was the biotechnology and pharmaceutical industry, followed by banking and finance. Other industries that complained of cybersquatting in 2008 were as follows:

Consider, for example, that cybersquatters register more than 2000 domain names every day containing the trademark Microsoft. As another example, over 10,000 domain names exist containing variations of the trademark Coke or Coca-Cola.  Yet, regardless of whether a cybersquatter owns one domain name or 100,000 domain names, its motive is the same: to generate money by trading off the goodwill of others’ trademarks.

4. Is there any Recourse?

Generally speaking, there are two legal channels available to victims of cybersquatting: (1) arbitration under ICANN’s Uniform Domain Name Dispute Resolution Policy; and (2) a lawsuit brought pursuant to the Anti-Cybersquatting Dispute Resolution Act.

A.    Arbitration Under ICANN’s Uniform Domain Name Dispute Resolution Policy (“UDRP”)

The UDRP is a process established by ICANN for the resolution of disputes regarding the registration of a domain name between a domain name registrant and a third party (that is, a party other than the registrar).  The UDRP currently applies to all biz, .cat, .cc, .com, .info, .mobi, .net, .org, .ro, .tel, .travel, .tv, .web,  and .ws  generic top-level domains (gTLDs), and some country code top-level domains (ccTLDs) that have chosen to adopt the URDP on a voluntary basis. 

When ICANN took over the domain name system, it required that all accredited registrars ensure that any person who registers a domain name must agree to comply with the UDRP – so, for example, when we bought the domain name “cyberinquirer.com” from GoDaddy, the terms and conditions of our registration agreement required that we agree to comply with the UDRP.  For that matter, so did Domains By Proxy, Inc. (and, as discussed above, we know that it requires all of its customers to agree to the UDRP as well.).

 Any person or company in the world can file a domain name complaint concerning a generic TLD using the UDRP. (In case of a dispute involving a domain name registered in a country code TLD, the UDRP can also be used, provided that the concerned ccTLD registration authority adopted the UDRP on a voluntary basis.)  The UDRP Administrative Procedure is only available for disputes concerning an alleged abusive registration of a domain name; that is, which meet the following criteria:

(i) the domain name registered by the domain name registrant is identical or confusingly similar to a trademark or service mark in which the complainant (the person or entity bringing the complaint) has rights; and

(ii) the domain name registrant has no rights or legitimate interests in respect of the domain name in question; and

(iii) the domain name has been registered and is being used in bad faith.

The UDRP Policy sets out some examples of what shall be evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

The UDRP is intended to be a cost-effective and speedy process for the resolution of domain name disputes. The Rules for the UDRP are found here…however new rules are coming out in March 2010 which can be found here.

ICANN has accredited a handful of organizations to administer these arbitrations. These  organizations are listed here - The World Intellecutal Property Organization (WIPO) and the National Arbitration Forum (NIF) are the two biggies.  It is up to you to pick the one you want to use, but they will all charge a fee to make a decision about your dispute and regardless of the outcome, you don’t get to recover it.  

You submit a complaint to your chosen organization in writing or online and pay the fee. The arbitration is done in writing and you should have a final decision within 60 days. The domain name registrar is bound by the decision and will transfer the domain name to the successful party. The NAF has posted some useful information on its website:

•  UDRP Model Forms: Download several model forms here, including model Complaint forms and Response forms.
• File a UDRP Complaint: Step-by-step instructions for filing a Complaint.
• File a UDRP Response: Step-by-step instructions for responding to a Complaint.
• File or Respond to UDRP Additional Submissions: Instructions, procedures and time limitations for filing (and responding to) additional written statements.

It almost sounds too good to be true, right? Well, we haven’t gotten to the fee yet. The fee is the Catch-22. Just to give you an idea, WIPO charges a fee of $1,500 to hear a domain name dispute involving a single domain name. The NAF charges a fee of $1,200. As a result, the UDRP might be speedy and efficient, but it is not a cost-effective option for an individual like Kevin.

B. Legal Action Under the Anticybersquatting Consumer Protection Act (“ACPA”)

The Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), is an American law enacted in 1999 and established a cause of action for registering, trafficking in, or using a domain name that is confusingly similar to, or dilutive of, a trademark or personal name. The law was designed to thwart “cybersquatters” who register Internet domain names containing trademarks with no intention of creating a legitimate web site, but instead plan to sell the domain name to the trademark owner or a third party. The ACPA allows trademark holders to file lawsuits against cybersquatters in the United States federal courts, and allows for the recovery of up to $100,000 per domain name in damages from the cybersquatter, plus costs and fees. The ACPA also addresses situations where the cybersquatter is located in a foreign country or where the cybersquatter cannot be identified at all. In such situations, the ACPA enables the cybersquatting victim to recover his or her domain name, but does not allow for the recovery of damages.

Kevin could explore this route in order to get his domain name back. Of couse, he’d  likely have to spend thousands of dollars up front in legal fees and endure the personal aggravation of commencing a lawsuit, all without a guarantee that he would win back his domain name or recover any money at the end of the day.

Conclusion

My conclusion is that there doesn’t seem to be any good option. Perhaps a well-crafted and forcefully worded cease and desist letter could achieve a successful result.  A  letter of this sort might demand that the cybersquatter return the domain name immediately, stating that if  the cybersquatter does not comply with the letter, the rightful owner will file a lawsuit, which could result in serious consequences for the cybersquatter.

If the letter doesn’t work, however,  it appears that Kevin would be confronted with either (a) paying a cybersquatter $480 to get his domain name back;  (b) paying the NAF $1,200 to conduct an arbitration of the issue (and that is assuming that he decides to tackle the process on his own, without the assistance of a lawyer and with no guarantee that he will be succesful); (c) pay even more money to litigate the matter in court ($480 would buy about 1-2 hours of a lawyer’s time); or (d) buy a new domain name for $10. Alternatively, he could wait until November of 2010 to see if the cybersquatter re-registers the name (unlikely), and check out other bloggers’ anecdotes of how they got their domains name back. It seems to me that, perhaps, the question is not “what’s in a name?” but rather “how much are you willing to pay for the “principle” of the thing”?