An important lesson in why you need to hire a domain attorney for a domain name case.
When a traditional business gets involved in a domain name dispute, it’s normal for them to gravitate toward their usual counsel to handle the case. That’s fine. But the counsel should at least spend a bit of money getting a domain name attorney to help and make sure it’s not making any stupid mistakes.
Consider the case of pool company Hayward Industries, which is entangled in a lawsuit after filing a UDRP against WebQuest for Hayward.com and wwwHayward.com.
In its UDRP, Hayward managed to show links to its competitors by using the search box on the parked page. Yes, believe it or not, if you type “pool pump” in the search box at Hayward.com, it will show ads for pool pumps.
That’s actually one of Hayward’s arguments. In a counterclaim to WebQuest, its lawyers wrote:
Likewise, a keyword search for “pool pump” on the main page for the website www.Hayward.com on October 30, 2009, yielded a web page that predominantly displayed hyperlinks to the websites of advertisers selling swimming pool products, including swimming pool products of Hayward’s competitors.
The lawyers are right on this point. It’s a silly argument, but this is absolutely what happens when you search for “pool pump” on any parked page. Or search engine for that matter.
Where the lawyers went wrong is on the issue of whois records. In its counterclaims, Hayward suggests that WebQuest failed to keep its whois record up-to-date because it didn’t update the registration date for the domain:
52. …The Whois Database record for the domain name hayward.com…identifies July 26, 1995 as WebQuest’s date of registration of this domain name…
53. WebQuest failed to revise the hayward.com Whois Database Record to accurately indicate the date that it registered the domain name hayward.com.
54. WebQuest’s failure to revise the hayward.com Whois Database Record in this manner created the false and misleading impression that WebQuest registered the domain name hayward.com on July 26, 1995.
Sweet! You mean I can change the registration date on my domain names in whois? Effective today, all of my domains were registered in 1994.
To bolster its case that WebQuest didn’t update the registration date to mislead, it points to another UDRP case for SideSteps.com (erroneously described as “SideStep.com” in Hayward’s response):
WebQuest was found to have registered the domain name sidestep.com (sic) in bad faith in part because it failed to modify the information in the Whois Database record for this domain name to reflect the date that it registered the domain name.
Of course, the panel didn’t say this in the SideSteps.com case, because it knows it can’t be done. There was a question of when WebQuest took ownership of the domain, but nothing about WebQuest purposely not updating the registration date in whois.
Regardless of the merits of Hawyard’s case, making a mistake like this doesn’t look good. If a judge unfamiliar with domain names finds out this document contains a false claim, he might treat the other claims with suspicion. Paying a domain attorney to participate in the case would have been a worthwhile investment.
ICANN Chief Operating Officer Doug Brent has announced he’s stepping down at the end of July for personal reasons. Brent joined ICANN in January 2007 in what was then a new role for the organization, and outlines some of the improvements at ICANN since he joined in a blog post. . After relocating for what will be more than two years, and much family discussion, we’ve determined that our life is not in Los Angeles.
