[gnso-rap-dt] FW: Draft: definition of cybersquatting

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

I sent the below to the subgroup two weeks ago, and believe I never got any
response from any of the subgroup members.  (If any of you responded, please
correct me.)  So I copy it to the WG list now, in hopes we can discuss
today.

My apologies for not sending sooner, I am in midst of family vacation this
week.

Thanks,
Mike 

Mike Rodenbaugh
Rodenbaugh Law
548 Market Street
San Francisco, CA  94104
+1.415.738.8087
www.rodenbaugh.com

-----Original Message-----
From: Mike Rodenbaugh [mailto:mike@xxxxxxxxxxxxxx] 
Sent: Monday, July 06, 2009 10:42 AM
To: Frederick Felman; Martin Sutton (martinsutton@xxxxxxxx); 'James M.
Bladel'; Michael Young; Paul Stahura; 'Phil Corwin'
Subject: Draft: definition of cybersquatting

DRAFT:  for your comments before posting to the list.  Thx.

We suggest that the WG consider the UDRP's definition of cybersquatting as
the consensus working definition.  It is well established throughout the
ICANN community, as a consensus policy appended to all contracts between
ICANN, its contracting parties, and gTLD domain registrants.  We also
suggest incorporating two additional categories of 'bad faith', to
supplement those specifically stated in the UDRP, taken from the US ACPA
(consistent also with Nominet ADR rules in UK).  They are included in
brackets at the end of this definition from the UDRP.

You are cybersquatting if:

(i) your domain name is identical or confusingly similar to a trademark or
service mark in which the complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain
name; and

(iii) your domain name has been registered and is being used in bad faith.

The following circumstances, in particular but without limitation, shall be
evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that you have registered or you have acquired
the domain name primarily for the purpose of selling, renting, or otherwise
transferring the domain name registration to the complainant who is the
owner of the trademark or service mark or to a competitor of that
complainant, for valuable consideration in excess of your documented
out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of
the trademark or service mark from reflecting the mark in a corresponding
domain name, provided that you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of
disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract,
for commercial gain, Internet users to your web site or other on-line
location, by creating a likelihood of confusion with the complainant's mark
as to the source, sponsorship, affiliation, or endorsement of your web site
or location or of a product or service on your web site or location.

[or, [from ACPA]:  (v) you have provided material and misleading false
contact information when applying for the registration of the domain name,
you have intentionally failed to maintain accurate contact information, or
your prior conduct indicates a pattern of such conduct;

(vi) your registration or acquisition of multiple domain names which you
know are identical or confusingly similar to marks of others that are
distinctive at the time of registration of such domain names, or dilutive of
famous marks of others that are famous at the time of registration of such
domain names, without regard to the goods or services of the parties.]