After losing challenges for three generic domains, school referral service wins a biggie.

EducationDynamics, LLC has made several attempts to get generic domain names through UDRP domain arbitration. It has lost cases for earn-your-degree.com, graduateschool.com, and graduateschools.com. But on Wednesday the company scored a victory, winning the generic domain name eLearner.com through arbitration at National Arbitration Forum.

EducationDynamics does have a trademark for “eLearners” and “eLearners.com”. But rather than explain in my words why this case was bunk, I’ll include excerpts from dissenting panelist G. Gervaise Davis III.

…I find no evidence whatsoever that the domain was registered in bad faith, since Complainant provided not even a scintilla of evidence to that effect other than that “Respondent must have known of Complainant’s rights” when it acquired the domain in May 2009. That is not evidence but speculation. The subject domain has apparently existed for many years in the hands of other owners prior to Respondent acquiring it. I am not aware of any legal principle under the UDRP which makes it bad faith to register an existing domain name in order to use it, nor did Complainant cite such law…

…In the final analysis, however, the domain should not be transferred to Complainant, simply because Complainant’s registered trademarks have become so hopelessly generic and descriptive that they no longer serve to uniquely distinguish the services of Complainant. In fact, it would seem almost incredible that that USPTO ever issued the registrations on these marks which were already generic and descriptive at the time they were issued…

…Suffice it to say, this Dissenting Panelist feels it is poor public policy as well as contrary to the fundamental purpose of the UDRP to protect generic or descriptive trademarks, which has the effect of taking such terms out of the public use, or at least making it difficult for the public to use the English language from which these words are taken.

An example of the absurdity of this practice, here, is found when one uses the Google® search engine to search for the term “elearner.” This results in 76,100 hits, only a few of which have anything to do with Complainant or its website, while the tens of thousands of other hits refer to and use the common and generic terms “elearner,” “elearning,” or terms like “elearning methodology,” which illustrates far more effectively than this Panelist can, that the whole concept of “elearning” is a technical English term and description of a new method of learning that belongs to the public at large and not to some domain name owner who seeks to arrogate ownership of a descriptive or generic English word to itself.

EducationDynamics LLC (Complainant here) does not own the word “elearner”or “elearners,” the public does and any decision like that of the Majority here, which so finds, is simply and regrettably wrong. I have, therefore, respectfully dissented here in some detail so that other Panels in the future do not make what this Panelist sincerely believes is an error of law.

You can read his complete dissenting opinion here.

Digimedia has an enviable but daunting task: building out the world’s best domain name portfolio.

Most domainers struggle with the question of which of their domain names to develop into full-fledged web sites. But imagine if your portfolio of domain names included Recipes.com, Shops.com, FantasyFootball.com, and MovieReviews.com? Choosing which of these blue chip domain names to develop first is a difficult task for Wichita Falls, Texas-based Digimedia.

Digimedia was founded by Scott Day. Many know of him as the watermelon farmer who stumbled into domain names when he wanted to buy Watermelon.com. Day is still involved with his company, but he now has help. Digimedia has about 15 full-time employees, including long time friend and company president Jay Chapman.

The team has a difficult but rewarding task of choosing which domains to build into web sites. A general rule of thumb: stick with what your passionate about.

“We never want to get caught up in a business we aren’t excited about,” said Chapman. One of the reasons the company built out its fantasy sports business (including FantasyFootball.com) was because its employees were long time fans of the hobby.

Jerky.com marked Digimedia’s foray into full-fledged e-commerce sites. The company decided to build it before bigger category killer domains, such as chairs.com, because it felt it could cut its teeth on a smaller niche market. For its e-commerce ventures, Digimedia relies on a combination of dropshippers and its own warehouse.

But with so many quality domain names, the company realizes it will never be able to develop all of them. “When we originally got started we thought we could build and develop and grow, and have a tall building of employees building these web sites,” said Chapman. “There’s only so much time.”

To that end, the company is more open now to partnerships than it used to be. It recently formed a joint venture with a web design firm, now called WebDesign.com.

With all of its success, the company hasn’t let go of its principles. “There are a lot of people with more manpower and a deeper technical vision than us,” said Chapman. “What we try and share with everyone we come in contact with is to be as authentic as possible, very passionate about what we’re doing…personable and accessible.”

In an industry in which a few bad apples can give the entire industry a bad name, Digimedia is doing its part to put its best foot forward.

Complainant tries to pull a fast one on arbitration panel.

Today I was reading through the domain arbitration decision for ComPart.com, a domain owned by Vertical Axis. The complainant, a German company called Compart, said that the parked page at Compart.com was showing ads related to its software business.

The complainant specifically said the parked page showed ads of direct competitors, such as software4students.co.uk and 31touchdownloads.com. That would be pretty damning evidence against Vertical Axis.

But then I went to compart.com to see these ads, and here’s what I saw:

It sure appeared that the page was focused on the “part” portion of the domain, as it only showed ads for car parts. Confused, I looked up historical thumbnails at DomainTools and found the same thing. Where could these ads competing with the complainant, that Vertical Axis supposedly set up to divert traffic from the complainant and benefit from its goodwill, be?

Turns out Compart’s lawyers pulled an old trick. They merely typed the word “software” into the search box at the bottom of the parked page and printed out the results page.

This didn’t go unnoticed by the panel, which called the complainant out on it.

(The panel also thought the respondent tried to mislead them because it asserted that compart was both an English and German word, but it is not a German word. I checked with the respondent’s attorney. As it turns out, the assertion that compart was also a German word was due to Google Translator showing the word during a translation. If Translator can’t find the word, it just renders it in the same language. Regardless, intentionally misleading the panel like the complainant’s counsel did is very different from a trivial oversight such as which languages ‘compart’ is a word in.)

The complainant lied. Guess who won anyway? The complainant, despite the fact that the parked page of a generic term didn’t compete at all with the complainant’s business.

(Hat tip UDRPsearch)

Use site search data to find out what your visitors are looking for.

Navigation of web sites is mostly defined by the web designer. You arrive at the home page and click on one of the links that the web designer decided should be on the home page. You go to the next page and do the same thing, and so-on.

But what are your visitors really looking for when they arrive on your web site? The richest data comes from your search box. Your visitor’s searches are their unadulterated explanation of why they came to your site.

Google Analytics lets you dig into what your visitors search for regardless of which site search technology you have. Here’s a look at search data over the past few months on Lakeway.com:

These are the actual search terms people typed into my site, most likely because the visitors couldn’t immediately find what they were looking for. Many of the terms are similar, such as hotel and hotels, so you may need to parse them together to analyze.

This data shows that many of the visitors to my site are looking for Lakeway hotels, and few can find that section. It’s probably placed too many levels deep on my site.

Search refinements is also interesting. It shows how many people ended up searching again after seeing the results. If the number is high for a particular keyword, then people aren’t finding what they’re looking for.

I’m also surprised to see people searching for employment on the site. Lakeway is more of a residential community, but this shows me there may be some potential for a jobs section on the site.

I have more extensive search data on Domain Name Wire. Since the middle of March people have used the DNW.com search box 3,388 times. The top search term is surprising: “Parava”, searched for 275 times.

This has to do with Parava’s de-accreditation and the subsequent transfer of domains to Hover.com. I wrote several articles about the transfer and what was going on. Many of the visitors to DNW probably arrived at one article and wanted to see other coverage. Perhaps I should have placed a notice at the top of the page “Looking for updated info about Parava transfers? Click here.”

The other top terms are VeriSign, GoDaddy, .tel, and global warming. Yes, global warming. You didn’t know DNW covered global warming? I’ll send a free copy of David Kesmodel’s “The Domain Game” to the first person who comments on why so many people are searching for “global warming” on DNW.

There’s no limit to the number of times a complainant can file a UDRP.

I’ve written a few times about domain arbitration cases in which the complainant re-files a case for the same domain name. It seems kind of like an appeal process for the complainant (an opportunity not afforded to respondents).

After seeing varying panel responses to refiled cases, I was confused about what the rules are for filing a case for the same domain twice. Perhaps that’s because there aren’t any rules.

Kristine Dorrain, Internet Legal Counsel for National Arbitration Forum, explains:

The UDRP is silent as to if disputes can be “tried twice.” Because of this, the FORUM doesn’t limit the number of times a complaint may be filed against a particular domain name. Each panel then gets to decide what to do with the issue of cases being re-heard.

But there’s the rub. By the time a panel decides whether or not to hear a case, the respondent has filed his response, and thus already paid for legal defense (again) and perhaps a three person panel (again). You can see how a complainant could merely refile the same case over and over, just to wear down the domain owner.

Dorrain explained that many panels use the United States principle of “res judicata” to decide if they should hear the case. This principle basically says the case should stand unless there is a compelling reason. A compelling reason may be new evidence that could not have reasonably been discovered at the time of the original filing.

This can become interesting when the complainant doesn’t tell the panel that the case was filed before, as Dorrain explains:

One particularly interesting issue is where parties don’t tell the Panel of a previous UDRP filing. If the complainant does not disclose this information, the Panel may not be aware that the case is refiled. This is most often seen when a party files with one Provider, loses, then files with another Provider.

An example is the recent MothersMilk.com case (although both the first and second attempt were filed at National Arbitration Forum). The panelist’s decision in the case doesn’t indicate any previous filing and what may be different in the second filing. But it’s a prime example of why a company might want to file a case a second time — the complainant lost the first case but won the second. The second case was heard by an arbitrator known for favoring complainants.