Res
Ipsa Loquitur
res
ipsa loquitur - Latin. "The thing speaks for
itself"
This
is a quiz: Who is the cybersquatter in the example
below--the trademark owner (TMO) or the domain
registrant?
Cybersquatters
are those who register domains with names similar or even
identical to trademarks, company names, or products, then
attempt to sell them to the trademark holder at
exorbitant prices. They are considered virtual bandits
who acquire mnemonic identifiers in hopes of reselling
them or piggybacking to detour Web traffic to their
sites. In the more generic sense, a cybersquatter is a
company or individual who stockpiles an inventory of
domain names to prevent others from using
them.
On
February 16, 2000, a Uniform Dispute Resolution (UDRP)
proceeding was filed with the National Arbitration Forum
(NAF FA0093759) over the domain name SEVENTYSIX.COM. The
was registered on February 9 to Black Lion Corp of Las
Vegas. The WHOIS database for the registrar, NSI, shows
no other registrations to that corporation or that NIC
handle. No website is activated at the SEVENTYSIX.COM
site.
Seventy-six
is a registered trademark of Union Oil of California,
presumably the complainant in this UDRP.
Now,
let us look under the hood.
Tosco
Corporation is the parent company of Union Oil. It has
registered the following domain names (an incomplete
list) with NSI.
- TOSCOMARKETING.COM
- CIRCLEK.COM
- 76RACING.COM
- 76PRODUCTS.COM
- TOSCONORTHEAST.COM
- CIRCLEKGAS.NET
- 6FUELS.COM
- SEVENTY-SIX.COM
- SHOPCIRCLEK.COM
- UNION76.COM
- UNION76GASOLINE.ORG
- TEAMTOSCO.COM
- 76PITSTOP.COM
- 6PITSTOP.NET
- CIRCLEKSTORE.COM
- CIRCLEKGAS.COM
- 76ANONYMOUS.COM
- ACCESSTOSCO.ORG
- NASCAR76.NET
- 76CIRCLEK.COM
- TEAMTOSCO.NET
- 76PETROLEUM.NET
- CIRCLEKSTOP.ORG
- 76LUBES.ORG
- CIRCLEKSTOP.COM
- SEVENTY-SIX.ORG
- 76PUMP.NET
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- TOSCOREFINING.COM
- TEAMTOSCO.ORG
- GETGASSED.COM
- CIRCLEK76.COM
- NAMELESS-SHOPPER.COM
- NASCAR76.ORG
- TOSCOCORP.COM
- UNION76LUBRICANTS.COM
- CIRCLEKANONYMOUS.COM
- TOSCOANONYMOUS.COM
- 76PUMP.ORG
- 76LUBES.COM
- BROWNBEARCARWASH.ORG
- ACCESSTOSCO.COM
- 76PETROLEUM.ORG
- 76SUCKS.COM
- CIRCLEKGAS.ORG
- ACCESSTOSCO.NET
- OFFICIALPITSTOP.COM
- UNION76GAS.COM
- CIRCLEKSTORE.NET
- CIRCLEKSTORE.NET
- SHOPCIRCLEK.NET
- TOSCO.COM
- CIRCLEKSTORE.ORG
- 76PUMP.COM
- SEVENTYSIX.NET
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Not
content with the 50+ names it has registered, Tosco
Corporation has now filed a bad faith proceeding against
the registrant of SEVENTYSIX.COM. Under ICANN's
UDRP,
evidence of bad faith includes may include:
- circumstances
indicating that the domain name was acquired
primarily for the purpose of selling, renting or
transferring it to the trademark owner or a
competitor of the TMO for valuable
consideration;
- or
that the name was registered to prevent the TMO
from reflecting the mark in a corresponding domain
name, proving there is evidence of a pattern of
such conduct;
- the
name is registered primarily for the purpose of
disrupting the business of a competitor;
or
- the
registrant has intentionally attempted to attract
for commercial gain users to the website by
creating a likelihood of confusion with the
complainant's mark.
Since
the details of the UDRP are not posted until a provider
decision is rendered, we cannot know which of these
circumstances were cited i the complaint. Nonetheless,
the domain name registration was only one week old when
the proceeding was filed. There can be no attempt to
attract for commercial purpose (iv) or to disrupt the
business of a competitor (iii) because there is no web
presence yet. As to preventing the TMO from reflecting
the mark (ii), the list above shows that Tosco
Corporation has already covered all its bases. So, unless
the registrant attempted to sell the domain name to Tosco
Corporation, res ipsa loquitur, the thing speaks
for itself. This proceeding is completely specious on its
face. The real cybersquatter here is Tosco Corporation.
But it got one name right: TOSCOSUCKS.COM.
In
my humble opinion.
by
Ellen Rony
©
February
20, 2000
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Other
articles, editorials and domain-related comments by this
author:
 At
Large Membership: ICANN's Ultimate Tarbaby
Whither
.ORG?
The
ICANN-VeriSign Agreement: A Sweetheart Deal
The
Divine Right of Names: New TLDs Prep for
Start-up
The
Envelope, Please: New Top Level Domains on the
Horizon
Procter
& Gamble Bids Adieu to SINUS, THIRST and
FLU
Words
First!
Sunrise+20:
The Numbers Tell the Story
Famous
Marks
Clicks
or Mortar: Are Domain Names Property?
Reverse
Domain Name Denigration
IIR:
Internet Impact Report
The
Devil is in the Details
An
Alternative to ICANN?
Comments
on the WIPO Interim Report RFC-3
Cyberwocky
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