June 30, 2008

Businessman Upset Over ‘Cybersquatting’

By Matt Pais, Asbury Park Press, N.J.

Jun. 28--MANAHAWKIN BUREAU -- When Bob Yura started the process to launch a Web site for his business, he thought it would be an easy way for Barnegat Funeral Home to reach prospective customers.

Instead, he gained a lesson about the world of "cybersquatting," where people register domain names for a purpose other than hosting a Web page. In his case, he found what he says is the most logical name -- barnegatfuneralhome.com -- was already owned by a competitor, who made the purchase in 2001, several years before Yura opened his business.

The competitor, Layton's Home for Funerals in Lacey, never constructed a site -- a bright orange background, a small banner with a "Coming Soon!!" message, and a generic Web search function are all that exist.

That left Yura feeling somewhat victimized and concerned that customers who set out searching for his three-year-old business may be discouraged and turn somewhere else for funeral services.

"I find it a little underhanded. It's misleading," he said. "I don't believe it's something crucial, but it's more the principle of it."

Yura said he approached Layton's owners -- who did not return multiple phone calls and e-mails seeking comment for this story -- and offered to buy back the Web site for up to $300, a figure he estimates would cover the site licensing fees incurred since the domain name was purchased seven years ago. Yura claims he was turned down and told to make a better offer, something he said he will not do.

"I'm not Coca-Cola. I don't know how much they thought they were going to get," he said. "It's hard enough to get a business up and running without dealing with this."

Less than a week after confronting Layton's owners about barnegatfuneralhome.com, Yura learned the Lacey business made at least one additional domain purchase in the time since their meeting. This time, Layton acquired barnegatfuneralhome.net, an address Yura thinks should also belong to him.

The issue is an example of what is generally referred to as cybersquatting, something corporations, politicians and charity organizations have protested against for more than a decade when they believe their rightful place on the Web has been unfairly conquered.

Disputes over domain name registrations are governed by the Internet Corporation for Assigned Names and Numbers, a California-based nonprofit organization created in 1998 to oversee several Internet-related issues. The group, known as ICANN, adopted the Uniform Domain Name Dispute Resolution Policy in 1999 as a way to mediate disputes over domain name registrations.

The policy, as well as ICANN itself, derives its powers through agreements signed with domain-name registrars, a group of more than 900 vendors who sell .com, .net and .org addresses to the public. When any domain name is purchased, the purchaser agrees to follow the terms of use laid out by ICANN.

Disputes between businesses over domain registrations have always been a gray area, said Jason Keenan, an ICANN spokesman. The dispute resolution policy focuses largely on intellectual property rights and tries to distinguish the difference between legitimate speculation -- buying an address on the cheap with the hopes that it grows in value based on a future fad or product -- and intentionally pirating a business's ability to market itself online.

"You can buy and sell domain names; that itself is not an issue," Keenan said. "Where the issue comes in is when it's a matter of trademarks and if you register someone else's name."

Peter Nussbaum, an attorney specializing in intellectual property law for the West Orange law firm of Wolff and Samson, said using ICANN's policy to resolve cybersquatting disputes is popular because it generally costs less than formal litigation in federal court. The downside is that the process offers no ability to claim punitive damages or recoup attorney fees.

Nussbaum estimates he has represented more than 100 companies in cybersquatting disputes in the past decade. In one of those cases, he successfully represented Ocean Eye Institute of Toms River in a 2000 dispute with rival Susskind & Almallah Eye Associates over the rights to oceaneyeinstitute.com. Nussbaum declined to discuss specifics of that case, but said in general, a company's name and any corresponding domain names are protected.

"It used to be the Wild West back in the mid-'90s. People were gobbling up domain names corresponding to very famous trademarks before some very large companies were even thinking of developing Web sites," he said. "But very quickly the law developed and it became clear, registering corresponding domain names isn't an acceptable practice."

For Yura, the fact that he may be entitled to claim barnegatfuneralhome.com is almost immaterial. He said he lacks the time and money to fight Layton through either ICANN or in court.

He has since purchased several other available domain names -- including barnegatfh.com and barnegatfuneralhomeinc.com -- and he plans to set up virtual shop at one of those locations. But still, he wonders why a fellow funeral home two towns away would want to stop him from reaching potential customers.

"As long as they're not using the site to advertise or direct people to their own Web site, I won't bother with it," he said.


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