Re: [ga] More UDRP Proceedings

["Bret A. Fausett" <baf@fausett.com>]

Since I was making an analogy to trademark law, I'll carry it out a little
further. Generally, under U.S. law, you use trademarks or you lose your
rights in them. If one were to make domain name registrations incontestable
after five years of continued, unchallenged use, I wouldn't think it would
make a difference whether that five years had been spent using the domain
name for web-based services, e-mail services, or any other use of the DNS.

What doesn't strike me as a "use" though -- for these purposes -- is simply
registering a domain name and thinking about what you're going to do with
it. Of course, there's no reason that you can't register a domain name and
sit on it. But I wonder whether just sitting unnoticed for five years should
convert your registration to an incontestable one. I wouldn't think so
(though I haven't thought it through very much).

This is an interesting idea. I wonder if there's something worthwhile here,
and I'm very glad you raised it.

        -- Bret

Ellen Rony wrote:
> Ok, let's explore this notion of unchallenged use.  If I get a driver's
> license, am I required to drive?  If I buy a book, can it sit on my
> bookshelf for years unread?  If I register for a fictitious business name
> in my state, must I actually employ the use of the name?  Must an attorney
> who passes the bar actually go out and get clients within a prescribed
> period?
> 
> What presumptions would support rights in long, continuous, unchallenged
> use over simply holding on to the name registration?  If someone has the
> concept for a new business, the domain name may be registered well before
> the business is implemented online.  I am certain your notion is presented
> with regard to cyberhoarders who stockpile domain names for future sale,
> but it would hurt those who have purposeful, but unfullfilled business
> plans.
> 
> And this gets to the notion of the domain name as property.  If I register
> the name, set up the servers and pay my renewal fees in a timely matter,
> what legal justification obligates me to activate the name in a website or
> email account within a set period of time?
> 
> I hope the public record will show us exactly why a UDRP proceeding have
> been launched against a five-year-old domain name registration.
> 

> "Bret A. Fausett wrote:
>> 
>> You raise an interesting point. As you probably know, under U.S. law, some
>> trademark registrations become incontestable after a period of time. Given
>> the amount of money now going to build an online presence (according to one
>> recent study the *average* cost for a new e-commerce site exceeds U.S.
>> $1,000,000), protecting a domain name after a similar period of continuous
>> and unchallenged use might make sense.
> 
>> While Harald is probably right that, as a practical matter, a long period of
>> use makes the challenger's task in a UDRP proceeding daunting, shouldn't a
>> domain name owner have some certainty after a long period of use that their
>> name will not be taken away?
>> 
>> We talk a lot about stability of the Internet. I would think this goal would
>> be furthered by giving domain name owners an incontestable right in their
>> name after a period of long, continuous, unchallenged use.
>> 
>> -- Bret
> 
> 
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