PALM BEACH, FL – This is an interesting topic by itself, although I covered something very much like it just the other day in “Panels Consistently Find That ‘Domain Investing’ Is Legitimate Bona Fide Offering”.
A lawyer named Tamara Kurtzman wrote an article that appeared on the website of the American Bar Association which details her opinion that “Domain Name Investing” should really be considered “Domain Name Hoarding” and labeled as “Anticipatory Cybersquatting”.
Her reasoning for this is simple; domain names are unusually powerful with influencing a business’s success or failure. Sort of comical, not only does the article bash the practice of domain name investing, it also happens to create some beneficial sales literature and quotes which could be used by domain sellers and domain brokers.
A business’s inability to secure a domain name that sufficiently relates to its name or products, however, might well have a significant effect on its very existence.– Tamara Kurtzman, American Bar Association
The attorney penning the article went into the similarities with regulation around the practice of scalping tickets and that the process of scalping tickets is already regulated even though it’s only determining someone’s personal entertainment, is ‘optional’ and not their businesses lifeline to survival. She also brings up the fact that the 800-number system is regulated, although extremely poorly I might add, to prevent hoarding phone numbers.
Although at first glance anticipatory cybersquatting might appear to be no different from other legitimate speculative practices, anticipatory cybersquatting is indeed unique in that it directly obstructs corporate opportunity and prevents rights holders from fully exploiting those rights. If a domain name under which a company wishes to offer its products has already been claimed, it must settle for a less desirable domain name that may be less effective in attracting customers.
The attorney also uses a very interesting choice of phrases which sound profoundly predatory, such as the “Hijacking and Ransoming of Domains”, these “Modern-Day Corporate Privateers”, the “Frustration of Corporate Opportunity”, these “Domain-Name Marauders”, these “Domain Name Privateers”, the practice “Obstructs Corporate Opportunity”
As such, a viable domain name is not simply a luxury in today’s economy, but rather a corporate necessity without which a business is unable to effectively compete in the marketplace. The inability of a company to acquire a meaningful domain can therefore directly influence the success or failure of that business.– Tamara Kurtzman, American Bar Association
There is also a reference to other online alternatives, however, this attorney believed that “.com” is clearly king.
Although companies can, and sometimes do, choose to utilize “non-.com” domain names (e.g., “.lawyer” is currently available and “.esq” will soon be available), the majority of potential website visitors are most familiar with “.com” names––in fact, Internet-based companies are frequently referred to “dot-coms.” As such, when seeking a company’s website, consumers are likely to assume that the website is a “.com.”– Tamara Kurtzman, American Bar Association
The writer is hopeful that efforts will continue by opponents of this so called “anticipatory cybersquatting” to pressure ICANN to take steps to prohibit this practice by adding a “not-for-resale” provision to the UDRP (Uniform Domain-Name Dispute-Resolution Policy) process or by incorporating a non-use condition into the UDRP by which registrants have a limited period from the date of registration in which they must make a “bona fide” use of the domain name.
The problem is, most panels already consider the resale of domain names for higher sums than initially purchased as a “Legitimate Bona Fide Offering of Goods and Services”.
Due to the commercial value of descriptive or generic domain names it has become a business model to register and sell such domain names to the highest potential bidder. Such a practice – including the sale of the domain name – has been found to constitute use of the domain name concerned in connection with a bona fide offering of goods or services provided that the registration of the domain name was not undertaken with intent to profit from or otherwise abuse a complainant’s trademark rights.X6D Limited v. Telepathy, Inc. WIPO Case No. D2010-1519 (Nov. 16, 2010)
Rarity, uniqueness and desire is what makes things valuable; perhaps she would like to rewrite history too? Now, when I wrote about this potential type of regulation back in 2017, I was very clear that I wasn’t saying it was going to happen, but what I did say, that it would likely be sought, and that is exactly what this wishful thinking is talking about.
Now it just has its own fancy name: Anticipatory Cybersquatting
About The Author: John Colascione is Chief Executive Officer of Internet Marketing Services Inc. He specializes in Website Monetization, is a Google AdWords Certified Professional, authored a ‘how to’ book called ”Mastering Your Website‘, and is a key player in several Internet related businesses through his search engine strategy brand Searchen Networks®
Thank you for choosing interesting stories! This lady knows what she’s talking about! She’d make a great domain investor…wonder what’s eating her. She makes such great points, I decided to add to the homepage of my domaining site! Check it out and lmk if you have any suggestions, bcoz I like your writing!
I’ll add, her idea for the adding a “not-for-resale” provision…ya, the expert domainers will turn to building mini sites. Those that ‘horde’ the domains will turn into the end user. Domains will switch hands in a ‘black market’, which will lead to a lot of corrupted dealings. In time, the majority domains will gather up into the hands of dirty business men. By deciding who deserves it more, well, you’re opening up Pandora box, everything will be ripe to be stolen.
If you take away the ability to control something, people find alternatives. You can’t fight nature.
Andrew Hyde says
Substitute the word domain for real estate and then see how ridiculous this article by Tamara sounds. A company that is unable to acquire a desirable location for business is also doomed. Boils down to jealousy and wishing that had got in on the ground floor early. I kick myself often for not buying more in the 90’s, too.
John Colascione says
Very good analogy. Real estate is all about location. Choose the wrong location and it could be death for your business. It just happens to be that domain names are your location online, and premium locations are rare. As with anything else rare and of significant value, buyers who desire rare assets will pay a premium to acquire. That’s just the way it is. The fact that the majority of Corporate America did not have this foresight and technical expertise to figure this out, is not good or just cause to rewrite history and steal anything from those who were/are. Those who do not like it, hire someone to figure it out, and get your wallet ready.
Bill Preston says
Totally agree! Serious domain investors spend a lot of time researching high growth industries and trends such as; artificial intelligence, legalized medical and recreational cannabis, food and beverage products, etc.
You need to be patient as not all domains sell right away even some very good names. Therefore you need to consider the cost of renewing domains for possibly a few years. Great topic!!
I bet $10 she votes for the Democratic Party. Every. Single. Time.
John Colascione says
Sounds accurate Logan. The Gimme, Gimme mentality.
I want what I haven’t earned, because, just because, it should be mine.
And now I own TamaraKurtzman.com
Domain Dior says
Now that right there my friend is the definition of anticipatory cyber squatting
The real question that udrp panelists have to ask themselves is
“What did the registrant have in mind when he or she registered the domain”
I’m afraid that there is little left to doubt in this instance and further to
register her proper name is just lame! You only did it to prevent her from having it! That’s cyber squatting! Pure and simple
Now if you want to send a message with your domain names register
That’s fair play!