History of domain litigation
Legal Angles
History of domain litigation

The whole business of large corporations defending and protecting and consolidating their monopolies against small upstarts and other interlopers does not help the general economy at all. I am not proposing that there should be legislation that should curb this corporate avarice. I am a staunch defender of FREE ENTERPRISE and I do not believe that there should be legislation that would curb the monopolistic tactics of large and small companies and corporations because free enterprise should be allowed to find the best solution. Unfortunately these large corporations have been able to flex their lobbying muscle and succeeded in persuading congress to pass very monopolistic and anti-competitive legislation that gives them unprescedented powers for legally consolidating their monopolies by among other things confiscating domain names from small and large domain registrants. No socialistic measures should be enacted into law to bridle the avarice of large corporations but on the other hand no government legal assistance should be given to anyone through laws and the courts to consolidate their monopoly positions.

The killing of small upstart businesses through the legal maneuvres of the established monopolies comes at a great cost to the economy of any country. The large corporations have been able to get the Government to pass legislation that prevents small upstart companies to nibble away 10% to 20% of the business from the large corporations by registering questionable domain names that alltogether are likely to capture 10% to 20% of the internet traffic that was intended to go to their corporate websites, but instead goes to other websites for reasons of mistyped domain names or spelling mistakes. This "diversion" helps, many, many other large and also small upstart companies. The internet users that are now diverted against their intentions to these other websites that are selling competing products will now have an opportunity to become exposed to the offerings of many other large and small businesses and that helps competition which in turn helps the economy. An economy with maximum competition helps both consumers and producers alike. An economy with minimum competition winds up to be like the old Soviet Union. The large corporations that want to strengthen their monopoly positions have been able to buy the support of the governments and the courts to pass laws and regulations that restrict competition by any means possible. In their successful lobbying efforts they point out the harm that would befall them if the small upstart businesses were allowed to compete with them on a level playing field. There are no opposing forces that point out the harm created to the whole economy by passing legislation and making court rulings that favor monopolies.

It is now interesting to analyse who benefits and who loses from the diversion of that 10% to 20% of that domain traffic. The web users that unintentionally mistyped or misspelled a domain name wind up at a totally different website that they had no intention to go to and as a result are exposed to competing alternatives or they are exposed to totally unrelated products or services that are not of their current interest. But that is the case with ANY OTHER FORM OF ADVERTISING (billboards, magazine advertising, radio and television advertising, airport advertising). People's attention is deliberately diverted from their current intended interest. That deliberate diversion of interest is called advertising and advertising is THE ONLY THING THAT DRIVES AN ECONOMY.

The diversion of the public's initial interest is the ONLY intent of advertising and it is for the greater good for every person in any country. The arguments and claims of large corporations that their trademark rights were injured and how famous they are with their trademark and that the smaller companies did great harm to their famous brands by making reference to their trademark, these arguments pale in the light of the benefit to the general public and the common good to the economy as a whole. The only restriction on the use of another's trademark should be that any other product should not be able to be offered with the claim that it is the product of a trademark holder when indeed it is not. The claims of confusion are generally bogus in that the general public has an average iq of 100 and not an iq of average 53.5 or thereabout. The view of the law should always be for the greater good and not for the fringes of society that benefit from bribing legislators and regulators for creating the laws and regulations that create their monopoly position in the market place or strengthen their already strong monopolies at the expense of all the rest of us, "We the People".  The corrupt legislators and regulatory agencies that create the regulations are well rewarded by the lobbyists that pay them generously for their good services that allow the creation of these monopolies. Sometimes it looks as if these lawmakers and regulators actually care a great deal for the general public, when they propose such laws that would protect the public against the abuses from certain industries, such as greater regulatory power over the crooked banking industry to protect the public from the greatest abuses of that extremely criminal financial industry. Do not be fooled though, the extra bank regulatory laws are only selectively enforced. The banks that are a member of the banking cabal that owns the Federal Reserve are intent on running out of business all the banks that do not belong to their cosy club of owners of the Federal Reserve because they are competitors to their huge plunder they perpetrate on the American economy. By selectively enforcing the extra supervision on the banks that are not part of their exclusive Federal Reserve Club they are running currently 100 smaller banks out of business. The same problem exists with all other special interest monopolies. The selective enforcement of laws is also aided by the bribing of Courts and some judges.

The best interest of the general public should always prevail over the monpoly of large special interests
When people wind up purchasing a different product or service of better or inferior quality at a better or higher price through any form of advertising, it is for 99.9% of the times NOT BECAUSE OF CONFUSION and in the rare cases that it is because of confusion the "confused" customer is most of the time given the opportunity to return the product for a full refund or get the full refund for services that were not appreciated. In cases where the customer was deliberately duped by false labeling of producs simple criminal proscecution will do the job. This supposed confusion (advertising) has happened to many people that navigate the internet and it has resulted for me personally, and most likely for many other people as well, in many purchases that I have been very happy with and also some that I have been unhappy with. That same thing happens when people go to a department store where their initial interest is to purchase a set of knives and where on the way to the department store they get maliciously their attention diverted to another store that has deliberately rented a store right next to the department store for the express purpose of trying to divert the attention of potential department store customers. Then when the person enters the department store to purchase the set of knives, the department store tries to maliciously divert the customer's attention to all manner of other products that the department store wants to sell. These are all absolutely malicious practices that deliberately are designed to "confuse" the customers and "divert initial" interest for the purpose of selling them additional other products or directly competing products. To legislate against using the trade names or trademarks of monopolistic corporations for purposes of creating competition is a service to strengthen the monopoly of the large corporations and it is a disservice to the economy as a whole and it harms the average consumer by disallowing this form of advertising and curbing competition.

The question is now whether all that deliberately created malicious "confusion" and "initial interest diversion" is beneficial or detrimental or of no consequence to the parties involved. The way to evaluate this question is to try to find the answer not for a case by case ocurrance, but rather to find the answer for the influence on the total economy as a whole. To find the answer to this "confusion" and "interest diversion" issue in legal battles though the courts will invariably result in lawyers finding reasons and precedents that would judge competition to be harmfull to the trademark or tradename owners. In many of these legal battles the small "infringing " businesses are rarely represented for lack of financial strength. This process of creating new law through the courts is quite obviously tipping the scale in favor of protecting the monopolies of the large corporations and destruction of the interloping small businesses and harm to the buying public through less advertising and less competition and a cost to the economy as a whole which in the final anlysis will harm the monopolistic large corporations and their employees as well. Too far fetched of an argument for free enterprise and against monopolies you say? Not at all if you consider the ultimate outcome of monopoly taken to the ultimate extreme where the state itself becomes the only monopoly like in the former Soviet Union where the economy totally collapsed for lack of advertising and lack of competition. You say that monopolies of many large corporations pose not quite the dangers of a single state monopoly? You are a bit shortsighted, because the macro level total collapse of an economy under a state monopoly works incrementally at the microlevel as well with every incremental reduction of advertising and the resulting incremental reduction of competition and the incremental reduction of the economy as a whole. This subject then deserves to be studied in a more logical and non-adversarial way. I will attempt to do that logical analysis even though I should be suspect of bias toward the freeing of free enterprise which would likely cloud my views and slant my judgement. I will try my best to stay logical and objective.

Analyzing the nature and value of advertising
Advertising is for the most part based on attempts of creating “confusion” and “interest diversion” , to “confuse” and “divert interest” of the public away from what their attention was focused on in the first place, or what was the object of their initial interest. For instance a roadside billboard tries to divert attention. An advertisement in a magazine tries to divert attention. A television ad tries to divert attention. A radio commercial tries to divert attention. A flyer under a windshield wiper tries to divert attention. Basically all forms of advertising are annoying and even objectionable to the vast majority of the public. The number of people that would support legislation against each individual form of advertising separately will always form a majority constituency. Consequently every form of advertising can be successfully legislated against. We hate billboards, laws against them will succeed, bilboards gone. Magazines have these annoying cards and hard pages that make it very unpleasant to flip through the pages and advertisements require more paper that then requires more trees. Lets save the trees and lets create laws against those cards and tree wasting advertisements, gone are the magazines for lack of advertising revenues. So, let's make laws against television ads and require that all ads be broadcast together in a single 12 minute advertising segment before or after any hour of programming instead of interrupting our viewing pleasure of the programs we are watching (has already happened in Germany for example). Radio ads are annoying as well. Let's make a law against them and get rid of them. Those flyers under our windshield wipers are disgusting. Lets get a law against them as well while we are at it.

As far as domain names are concerned ICANN, WIPO, the American Congress and most American Courts have been completely persuaded into believing that they protect the public interest by supporting claims of infringement of the rights to domain names based upon “typo squatting”, “domain misspelling”, “domain squatting”, “trademark infringement”, “confusion”, “initial interest diversion” , dilution and other sundry arguments devised by clever legal practitioners that seek to bolster the monopoly positions already established by their corporate clients. And legislatures and courts everywhere have been pressured and persuaded to do the bidding of the special interest corporate monopolies at the expense of the greater good public interest and the economy as a whole

Indeed there was a real problem in the beginning of domain name registrations where “clever” individuals were registering the actual trademarks and company names of companies and businesses and names of  “famous persons”. These "clever" people were also registering generic words that were used by large and powerful companies and corporations that had “branded” those words for their name or products. Many of these domains reflected the exact company names of trademark holders but many others did not (Delta, American, United, Hawaiian, NorthWest etc.). Then there were the misspellings and mistyped domain names that would divert traffic away from the websites of the underlying domain owners of the correctly spelled and correctly typed domain names. The registration of exact trademarked company names that would deprive the companies from having their website presence under their own company name that could not possibly be used for any other purpose than the corporate name of such company, there is a legitimate reason for legislation that would give the rights to such domain names to the trademark holders.

In the case of such names as Delta, American etc. there cannot be any legislation and litigation allowed to gain the rights to those domains by the special monopolizing interests. Yet that is exactly what legislatures and courts have allowed. The misspelled and mistyped domain names that can easily be identified as deliberate purposes to divert the public's initial interest and attention to totally unrelated or even directly competing products and services must be seen as beneficial to an increase in advertising and competition no matter what disdain politicians or members of the public have for the individuals that have registered such domains. Existing legislation and regulations that are outlawing such domain registrations (Lantham Act and ICANN registration rules) are clearly in support of monopolies and against the common economic interest of promoting advertising and competition and will stifle the growth and formation of small businesses.  

The World Wide Web has gradually increased the time spent by people on the internet. That increase of time spent on the internet has resulted in a decrease of time spent on all other activities, including television watching, magazine reading, newspaper reading, visiting shopping centers, and sundry other activities whereby people used to be exposed to advertising of all kinds. That has led to the decline of public exposure to advertising and it has been a signifficant factor in the decline of the economy. Such loss in advertising exposure is partially replaced by internet advertising but that still leaves a great amount of advertising deficit and that hurts the economy. The legalizing of typosquatting and misspelled domains (no matter that it is as annoying to the public as all other forms of advertising are) could help offset the advertising deficit and help the economy a great deal.  

It is quite understandable that large monopolistic special interests are lobbying for any and all legislation that will strengthen their monopoly grip on the economy. They would like to confiscate domain names from their rightful owners the domain names that they claim the rights to, based upon their dishonest assertions that are buttressed by loosly interpreted laws that support the large monopolies in strengthening their monopolies at the expense of the general public. These big special interests are attempting to reverse-hyjack these domains with lawsuits and arbitration procedures that are at a considerable expense to the owners of the domains. Small and medium sized businesses  gain advertising and marketing opportunities through the internet traffic that is generated through these domain names. I think that these large monopolies should have the right to sue for those domain names that they claim to be rightfully theirs, but I do not believe that these monopolies or large business special interests should be assisted by the government with special legislation that legally punishes these somewhat shady domain registration practices that create advertising opportunities for small and midsized businesses. All large and monopoly businesses started out as upstart businesses and most of them started under shady circumstances such as stealing a number of customers from their former employer and stealing employees of their former employer and also business methods and other things that aid them in starting their own and not so unique startup business. Large oak trees grow from acorns.

The creation of small businesses must be encouraged and not suppressed by government.with laws that only protect monopolies against the competition by small upstert businesses. In fact it would be better if government were to protect small businesses from the mighty powers of monopolies.

send Ideas and comments to: alf (at) 400a.com