WIPO panel questions Oversee.net defense of “automated systems” for registering domain names.

A UDRP panel has found against Oversee.net in a UDRP dispute over CarrollHouse.com and has posed significant questions about the company’s domain name registration practices.

Complainant Carol House Furniture has used its name since 1965 and it incorporated in 1970.

The dispute says that Oversee.net registered the domain on September 4, 2010. But the domain was actually owned by Oversee.net affiliate Portfolio Brains, LLC since 2009.

Oversee.net’s defense to registering the domain name was that an automated system identified the domain name and it registered it because it included two common words. The company told the panel that neither its automated system or three human reviewers raised any red flags about the term being a trademark. It also defended the use of some pay-per-click links on CarrollHouse.com being related to furniture, noting that the act of the complainant accessing the page and clicking on furniture keywords to take screenshots would have increased the prominence of these keywords on the parked page.

The panel found the domain was registered in bad faith and asked two pertinent questions:

1. Why did Respondent choose this particular word string from the universe of words available?

…The Panel did not learn anything from Respondent about the criteria that it programs into its automated system for identifying potential domain names. For example, the criteria in its system might search for word strings that bear similarity to trademarks. The Panel just does not know. Thus, explaining that it uses an automated system does not enlighten the Panel nor relieve Respondent of its responsibility to avoid registering words that infringe on the rights of third parties. That Respondent appears to be relatively savvy when it comes to registering domain names and that it acknowledges its intent to use them for PPC links only heightens the concern in this case.

Respondent claims it had no knowledge of Complainant prior to this dispute, and that during the registration process, neither Respondent’s automated filtering system nor Respondent’s human reviewers identified carrollhouse.com as confusingly similar to a trademark. Respondent does not state whether its filtering system uncovered Complainant’s mark, whether Complainant’s mark came to the attention of the three human reviewers, or whether the reviewers, if confronted with Complainant’s mark, considered the Domain Name unlikely to cause confusion, an assessment that would be different from this Panel’s determination. Does Respondent aggressively choose word strings that risk crossing the line? Again, the Panel is not told anything about the process used by Respondent’s human reviewers. While Respondent denies that it was targeting Complainant, the issue remains open as to whether it was aware of Complainant’s trademark. Is it too much to expect that Respondent should prove that it was unaware of Complainant’s mark, when this evidence is only within the zone of Respondent’s own operations? Given that Complainant’s mark had been used for 45 years, that Complainant had its own well-established website selling furniture, that both parties are located in the United States, and that Respondent is in the business of registering domain names, a finding of constructive notice may not go too far in this case…

2. Why did Respondent’s PPC site feature prominent PPC links for furniture?

…There are at least two plausible alternative explanations for why the website Complainant received when it accessed the Domain Name included furniture-related PPCs as the top links: (i) these terms did not change from the way they first appeared when Respondent uploaded the web page; or (ii) Internet users other than Complainant clicked on furniture-related PPC links on the Domain Name’s web page, placing these links at the top. The Panel does not know the actual reason why Complainant received the web page it did, but the Panel does know that it did receive that page; that it was possible the page included furniture-related PPC links from the day it was uploaded, and that it was possible third parties, not Complainant, searched for furniture or clicked furniture-related PPCs links before Complainant ever did…

Indeed, DomainTools shows that the site has hosted everything from porn links to real estate links. Even after Portfolio Brains bought it there was a parked page with no furniture links on it.

Visitors looking for movie info might be landing on tourism web site.

When Rio.com sold in 2009 for $450,000, the buyer quickly went to work on a site about Rio de Janeiro, Brazil.

The site’s traffic will increase steadily as the World Cup and Olympics in Rio de Janeiro get closer.

But this week the site likely saw an increase in traffic from an unlikely source: kids and parents interested in the new 20th Century Fox flick Rio.

The animated movie from the same studio that released Ice Age grabbed the top spot at the box office this weekend, grossing $40 million.

The movie’s official web site is an unfortunate rio-themovie.com.

Google Trends shows a sharp spike in searches for both Rio and Rio.com over the past couple days.

It’s not the type of traffic Rio.com is looking for. But who knows, maybe someone will decide to book a trip to Brazil while they’re on the site.

Language of new applicant guidebook disqualifies two large domain name registrars.

If you read the spirit of the rules related to new top level domain names, domain name registrars eNom and Go Daddy are still disqualified from applying for their own top level domain names.

In the latest draft ICANN tweaked the language regarding applicants for new TLDs who have been found guilty of cybersquatting, but not enough to let these two companies off the hook.

The guidebook reads:

In the absence of exceptional circumstances, applications from any entity with or including any Individual Applicants with confirmed convictions of the types listed in (a) – (m) below will be automatically disqualified from the program…

has been involved in of a pattern of adverse, final decisions indicating that the applicant or individual named in the application was engaged in cybersquatting as defined in the UDRP, ACPA, or other equivalent legislation, or was engaged in reverse domain name hijacking under the UDRP or bad faith or reckless disregard under the ACPA or other equivalent legislation. Three or more such decisions with one occurring in the last four years will generally be considered to constitute a pattern.

The new language in the latest guidebook notes that decisions must be “final”. It also adds language regarding people who are guilty of reverse domain name hijacking.

But eNom and Go Daddy both have three or more “final” UDRP losses with at least one in the past four years.

Now, technically there are ways around this. For both registrars the domains that got them in trouble were actually owned by affiliate or subsidiary companies. There’s also a bit of wiggle room in the language, such as “generally be considered” and “in the absence of exceptional circumstances”.

As I’ve commented before, I don’t think it’s right to apply this arbitrary standard of cybersquatting retroactively. And I can’t see ICANN denying an otherwise good application from either of these domain registrars.

Health officials say H1N1 infected DOMAINfest attendees and evaluates role of social media in responding to outbreak.

We go to domain conferences. Health officials go to Centers for Disease Control conferences.

You can imagine these events as rather dull. But last week officials from Los Angeles got to spice things up a bit as they discussed the illness outbreak after the DOMAINfest conference in February at the Playboy Mansion. They managed to throw in another buzz word: social media.

Their conclusions:

-the hot tub at the mansion was the source of legionella bacteria at the conference
-social media helped to get the word out and track the illness
-3 people tested positive for H1N1
-The relative risk for illness for people who attended the party was 3.8x of not attending the party
-they could not confirm a single case of legionellosis among attendees

Their presentation to fellow health officials was titled “Role of Social Media in Investigating an Outbreak: the Good, the Bad, and the Ugly.”

The health officials said they used blogs, twitter, Facebook, and an online survey to assess symptoms and figure out the timing.

439 people responded to the official survey and 123 met the “case definition” for the illness.

Although online tools helped, the health officials noted that they may have also caused “recall” amongst attendees. I believe this means it may have induced people to think they were sick or had certain symptoms even though they didn’t.

Applicants for new TLDs must answer question related to domain name parking.

Out of nowhere, domain parking appears to be under attack in the new top level domain name application process.

The latest guidebook, released yesterday, includes a section for applicants to explain:

What operating rules will you adopt to eliminate or minimize social costs (e.g., time or financial resource costs, as well as various types of consumer vulnerabilities)? What other steps will you take to minimize negative consequences/costs imposed upon consumers?

Applicants have to address four points, including:

Will you impose any constraints on parked sites, or sites that offer only advertising?

You can see this new requirement on the redline version of the new guidebook, page A-13 (large pdf).

My guess is this is in response to government requests that new TLDs prove that their benefits outweigh their costs, but please chime in if you have additional insight.