Am I an unrepentant typosquatter? Read below what got me into typosquatting and for what reason.
Why I typosquatted and why it should be legal. This subject of typosquatting got me a lot of bad publicity on Google blogs. Positive things are not so interesting for the young people at Google that determine the ranking. Just like bad things in news media are getting a lot more attention than good things. Normal people would have spent a few thousand dollars on companies that specialize on cleaning people's "image" on Google and I should start doing that now because it does affect the image of the products I manufacture. Sad, but that is the real World.
Alf Temme, founder of the California exercise-machine company Romfab, is the defendant in a recent Microsoft trademark-infringement lawsuit. Microsoft sued him and his company over his registration of Web addresses that were one or two keystrokes away from “hotmail.com.” That practice has become known as typosquatting. This guest column is a reappropriation of a piece originally published at AboutTyposquatting.com.
I had a fairly good idea, but was a bit naive, no very naive.
I had an idea to start a Web-address consulting firm called Domain Name Consolidation Service, advising large corporations what kinds of URLs they should register. I thought it would behoove companies to avoid expensive and time-consuming efforts years later to obtain domain names from others who, by then, would likely have registered those domains in faraway countries, where they would be difficult to obtain.
It seemed a very practical idea to save all these large corporations a lot of money and grief later.
Today there are many businesses – mostly law offices – that provide the far more costly service of filing lawsuits to get the domains those large companies should have registered many years ago. My consulting service was a similar idea to doing preventative exercise rather than allowing illness to develop and having to spend far more money and time to restore health.
Unfortunately, there was a major flaw in my business model, in that the federal government had once more interfered with private enterprise by giving special privileges to special interests via two laws. The two laws were well-meant, I am sure, to allow large businesses to protect their intellectual property such as trademarks and trade names.
The Lanham Act and the Anti-Cybersquatting Consumer Protection Act (ACPA) made it illegal for anyone in the United States to register domain names that had any similarity with, or are mistypes of, domains that include company trademarks, such as “Hotmail.com.” There is a possibility that both these laws are in conflict with the Constitution, but who cares – they were passed into law and they were paid for by large monopoly special interests.
In addition, these laws have created a bonanza for the legal industry by spawning a huge new business opportunity for law offices. A lot of expensive legal work could have been easily prevented if corporations had used a consulting service like mine, but the companies I contacted showed no interest in that.
I started by making large lists of domain names that I felt certain large corporations should register, then I was going to propose the consulting service to them.
In soliciting these companies, I wanted to present them with about half of the names I was recommending they should register. I wanted to give them an idea of the value my service might be to these corporations.
Most of these large and mid-sized companies had no person on staff who had any reasonable clue about the importance of domain names or to make an intelligent decision about my service offering. So it was immediately a very time-consuming and labor-intensive education effort, and I never got to talk to the right people, the ones in marketing and advertising. I always got turned over to the people who dealt with intellectual property. Yes, that’s right: legal departments.
The problem, I figured, was that as soon a I showed them my lists and taught them the importance of domain names, they would get busy themselves and start registering all the names I had given them. They would not sign up for my proposed consulting service. So I decided to register about half of the domains I was going to recommend. That way I had more control of the service I was offering.
But, unfortunately those domains were subject to the Lanham Act and the ACPA. In effect, these two laws prohibited the creation of a business that could prevent a lot of costly litigation in years to come. Bad for the economy as a whole.
It was illegal to register those domains. The Lanham Act existed before the Internet came along, and has been modified a few times to strengthen the power of special interests. The much more powerful Anti-Cybersquatting Consumer Protection Act was lobbied for by monopoly special interests during the Clinton administration. The ACPA certainly gives a whole new meaning to “absolute power.”
After registering my domains, I made my first consultation offer. I planned to have a protective number of domains registered to myself, which I would turn over as a packaged deal with the signing of a consulting service contract. My hope was that the companies’ marketing and advertising departments would see the value of my service and sign on to it.
My first offer was to Alaska Airlines, for which I had registered a fair number of domains. They included typo domains and some like flytobaja.com, flytoalaska.com, flytoacapulco.com, and some .net and .org domains that Alaska should have it registered along with its .com addresses.
The airline’s marketing department wouldn’t hear my proposal; I was turned over to Alaska’s legal department, which deals with intellectual property issues. My list of domains was immediately stolen and registered by Alaska Airlines. They could easily do that because I registered most of these domains in violation of the two laws, and Alaska Airlines had trademark and intellectual property rights to most of them.
And guess what, that resulted in my first arbitration case against me. No consulting service sign-up. So I scratched it up to misunderstanding. (I still own those flytoalaska.com and other “fly to” domains because the airline could not lay claim to those.)
I was totally mistaken
I was wrong in thinking it was Alaska’s lack of understanding which made them pass on my consulting offer. It was as a result of the nature of lawyers, who seem to think predominantly in terms of doing legal battle whenever they have an opportunity – especially when they have absolute power on their side by virtue of the two aforementioned laws.
The Alaska Airlines lawyers of course made certain that they published their victory over me on the Internet, and presented the facts such that it placed me in a particularly unfavorable light. That is standard procedure for trial lawyers; it is their official job to not present objective truth, because that decreases their chances of winning cases.
I persisted for a while, and ran into several more of these ICANN arbitration cases. The next was in 2004 with Air France, for which I had registered a number of typo domains and others, such as flytoparis.com, back in 1999. I had by then given up most hope that my domain-registration consulting service had any chance, especially with the aforementioned laws and additional ICANN rules that prohibit the registration of certain domain types. So I only made a halfhearted and feeble attempt to explain my intentions. The Air France lawyers were of course totally uninterested.
After that Air France arbitration, I finally realized there was no hope for my domain registration consulting service. Companies, and people in general, are not interested in any form of preventive measure – not in business matters and not in their private lives. An ounce of prevention is worth a pound of cure. These companies would rather pay for a pound of cure to retrieve the domains that they could have registered as a preventive measure. With an ounce of prevention, they could have simply registered the URLs a few years earlier.
In good faith, I didn’t try to hide
Many people might say I am stupid for not hiding my contact information. Or they wonder why I did not register the domains in offshore jurisdictions, where it would be more difficult to file lawsuits. The reason is, I never intended to use the typo domains in bad faith; I only wanted to create a domain-registration consulting service that would benefit the companies whose domains I had registered. Hiding contact information and off-shoring domains are sure indications of bad faith, which I never had.
I actually wanted companies to easily be able to find my contact information, so they could ask for the domains and I could simply turn them over. Not renewing the URLs would have been very bad for such companies, because those domains would likely end up in the hands of people of bad faith. I never, ever put my typo domains, or any others, up for sale. When companies demanded the domains, I simply turned them over.
I indeed even tried to contact some of the larger companies to get them to take their domains, but for most them it was impossible to reach the right people. So instead of cutting the domains loose, I kept incurring domain-renewal expenses until the companies contacted me. But, apparently, no good deed goes unpunished.
I had been successful in turning typo domains over to a number of smaller companies, because they were easy to contact. Some of them were not even interested in the typo domains, because they were too trivial and not worth the yearly renewal fee. I advised against letting them expire, but I did let them expire with the permission of these smaller companies. Did I offer any of these domains for sale? Absolutely not.
Dell v. Temme was next
And so it is that I got my first lawsuit filed against me by Dell Computers. I had also registered a number of computer-related domains such as bestcomputeranimation.com and bestcomputergraphics.com, and had several other URLs – including seven typo domains – which I had attempted to turn over to Dell after I gave up on my consulting service.
The Dell suit against me was an entirely new development, and it should have shown me that there are a lot of very vicious lawyers out there operating like highway men from ages past. That Dell case was a very strange. The company’s law firm was based in Chicago, and Dell filed suit in Austin, Texas – well outside my ability to handle my defense as a pro-per defendant. I did get in touch with the lawyers to reason with them, but they were not interested in justice, just in the money they could squeeze out of me. In this case, I actually did receive some income from the domain names, and I’ve written my side of the story at domainnamesquatting.com.
Microsoft took it up a notch
After the Dell disaster, I would have been quite justified to dump all the typo domains I was saving for their rightful claimants, but that would have done exactly what I wanted to prevent with my ill-fated domain-registration consulting service. I didn’t want malicious typosquatters to snatch them up.
I had registered 24 Microsoft typo domains during my consulting experiment. Without sending me a demand letter first, Microsoft filed suit in March, demanding the 24 domains and up to $2.4 million – plus legal costs – in damages. Simultaneously, I received an offer from Microsoft to settle the case for $500,000.
Tim Cranton, a Microsoft associate general counsel, is in charge of pursuing and suing all Internet-related criminals. He is doing a brilliant job, as is evident from the many victories of his I found on Google. Cranton identified me, Alf Temme, as a particularly egregious cyber criminal, telling seattlepi.com he wanted to make an example of me to dissuade others from typosquatting. Based on all the negative information you can find about me on Google, I think he took the right approach.
The reality is, I am not the kind of person portrayed by all those Google results. If I were that kind of person, I certainly would not have registered all those domains with my correct contact information. I did not register them with the popular “private” registration option and I did not register them in some offshore jurisdiction like Korea, Bermuda or the Bahamas.
So Tim Cranton must have concluded that I must be a complete idiot of a typosquatter for not taking these precautions. Most other people will decide I must be an idiot, because they cannot conceive of the possibility that I might just be an exception to the exceedingly mean and dishonest society we have created in the past 40 years.
Meanwhile, I have – as I said I would – turned over 26 typo domains to Microsoft (I found two more of them in my files that could be interpreted as typo domains). You can check them out on who.is and see that they are all registered to Microsoft, and you can also look them up in your browser and see that they now are all redirected to Bing.com. (interesting that some of these 26 names are no longer registered to Microsoft because they did not bother to renew them and they were snapped up by other "typosquatters"). At the time of this lawsuit, Microsoft had aabout 35 or so typo domains regisred but a few were pointed to porno websites which I brought to their attention One of the sites that Microsoft had pointed one of the domains to was called www.TeenFleet.com. Soon after that Microsoft dropped the lawsuit for which I had wasted about $28,000 in defense cost..
One of the stated objectives of the ACPA is to protect consumers from being redirected from the website they intended to visit to another website, because it might create confusion and it is annoying. In my case, misspelled hotmail.com domains redirected to my fastexercise.com website, where I sell my Romfab ROM exercise machine. Microsoft correctly alleges in its lawsuit that I created such confusion and annoyance for people who intended to go to hotmail.com but wound up at fastexercise.com.
Ironically, Microsoft does the same by redirecting misspelled Hotmail domains, including my old ones, to Bing – equally annoying and confusing to the users who intended to go to hotmail.com. Should that be an excuse for me to claim innocence? Of course not. It is none of my business. What I hope, though, is that Microsoft will take into consideration that it is equally guilty. Their accusing me of confusing Hotmail users is like the pot calling the kettle black.
So that leaves the $500,000 to $2.4 million with which Microsoft would like to bankrupt me, effectively closing my two small businesses and adding my 12 employees to the U.S. unemployment statistics. My Nordic Sauna business has four employees and Romfab has eight — 26 before the recession.
It would be as if Microsoft handed me a six-shooter and told me to shoot myself in the head. I would have expected that Microsoft by now might have seen the injustice of their wrongheaded lawsuit. The company’s public image is not well-served by lawyers who use the law in ways that do not seek justice, but instead result in the maximum possible monetary destruction of defendants.
It’s just bad legislation
Typosquatting is just like if you were to buy some property next to Disneyland. Put a hotel on it, and you should not be able to get sued for “property squatting.” It basically means that you are taking advantage of a situation where people who, prior to getting to the Disneyland Hotel, bump into this motel that is offering a better rate.
All these typo-domain lawsuits are guaranteed to be won because they are all based upon the ACPA, which does not protect the consumers at all and only gives over-the-top damage awards to plaintiffs: $100,000 in punitive damages for every domain name involved.
Whenever people want to oppose bad policy and want to improve things for the good, they will generally have to break those bad laws. Examples abound in human history. Here’s one: Americans broke the tax laws with which England had burdened the Colonies, and they created a new country.
Most laws are created on behalf of special interests and do not convey equal benefit to the general public. In fact, they may place a costly burden on the whole economy. And so it is that the more laws that are passed the less freedom there is. But the lobbyists for large special interests are spending billions to get the legislation they want for their clients. We all pay the price in higher prices and less competition.
Less PUNCH and more SLIME is the subject of a video I made around 1978 explaining another serious economic flaw that is ongoing in legislation. Watch this early TED like video from 1978 in which I explain GDP and what is wrong with it www.BowlOfPunch.com