Unhappy with asking price for domain, kids entertainment website files cybersquatting lawsuit.
Scratch Foundation, a non-profit that started at MIT, has filed an in rem lawsuit (pdf) against the domain name Scratch.org claiming that the domain is cybersquatting.
The foundation uses the domain names scratch.mit.edu and scratchfoundation.org. Each site contains different content and the latter domain was registered in 2015.
Scratch Foundation reached out to the owner of the domain name in 2015 and offered under $5,000 for the name. According to the complaint, the owner asked for $450,000 and shortly thereafter started showing ads related to credit repair.
The plaintiff says it then offered $10,000 in 2017 and the owner responded asking $650k. It claims that the owner is trying to sell the domain for over 700 times the domain’s appraised value (using estibot’s automated valuation). Note that the plaintiff reached out to the domain owner to inquire about buying the domain, not the other way around.
So how is the owner of Scratch.org using the domain to infringe on the foundation’s trademark? I can’t find any evidence that it is. The lawsuit states:
…the registrant of the Defendant Domain Name may possess an intention to divert consumers from Scratch Foundation’s online locations to a site accessible under the Defendant Domain Name that could harm the goodwill represented by the SCRATCH mark…
…the registrant of the Defendant Domain Name could configure the Defendant domain name to confuse and/or deceive young children…
Note the use of ‘may’ and ‘could’. In other words, there’s no infringement right now. ‘May’ and ‘could’ could be used for just about any valuable one-word domain name to suggest infringement.
The lawsuit also says that, upon information and belief, the registrant provided false contact information when registering the domain name. The very next paragraph says the registrant is unknown because it is protected under privacy.
Scratch Foundation says it is unable to figure out who owns the domain because is protected by Whois privacy. I’m curious how it communicated with the owner of the domain name to make its purchase offers. That communication is not included as an exhibit to the lawsuit, which is odd given that it’s central to the plaintiff’s claims.
Furthermore, at least as of today, there is a phone number and email address on the Scratch.org landing page. I’m not sure if this is for the domain owner or a technical provider.
Nevertheless, it’s clear that the plaintiff was somehow able to communicate with the owner previously.
David Weslow of Wiley Rein is representing the plaintiff. Weslow traditionally represents domain theft victims as well as victims of reverse domain name hijacking. Yet this is a case that could very well be considered reverse domain name hijacking, at least under UDRP rules. Weslow also defended grandma Heidi Powell pro bono. He is also representing the owner of AddictingGames.com in a case filed against the owner of Addicting.com. At least in that case there’s evidence on infringement. While attorneys are free to represent “both sides”, it seems that some of the arguments in this case will contradict defenses made by domain owners in other cases, such as their ability to charge whatever they want for a domain name.
> “It claims that the owner is trying to sell the domain for over 700 times the domain’s appraised value (using estibot’s automated valuation).”
Andrew, should I rest my case now re everything I’ve been saying about this in the blogs including yours lately, or is the domain investing community still going to keep its collective head up its you-know-what about it?
And as far as this case goes:
1. Should plaintiff’s attorney be sued for malpractice or something when he should have advised plaintiff that there’s no case?
2. Is there an “rdnh-like” counter-action for a case like this?
For ref: https://domainnamewire.com/2019/01/21/domain-auction-preview-with-monte-cahn-dnw-podcast-220/#comments
Did you notice that scratchfoundation ,org is also using privacy?
Another case of why it is wrong for tucows and enom to use mandatory privacy.
(Do domain owners realize how tucows/enom mandatory privacy is exposing them to legal proceedings? Do you think tucows will reimburse the domain owner for the legal expense? )
One of our domains was WIPO’s when its buy it now price was less than the cost of the WIPO and complainant’s total WIPO and legal fees. Ruling stated they came very close to concluding RDNH, this from a single panelist that has a history of ruling for the complainant.
Its clear conflict of interest. An organization goes to legal counsel believing they will receive good advice. What incentive does the law firm have to say “Just pay the BIN”? What incentive do that have to say “Lets fight this!”
Then add the financial asymmetry of a corp going after an individual. Our industry has long lost care for small business and the innovation that comes from it. Patrick Byrne’s DeepCapture.com’s website is a great example of the dynamic is the finance industry.
The internet became what it is today because of the initial ability of an individual to compete on a much more level playing field with the largest corporations in the world. Thus, the largest corporations in the world have “captured” the regulatory component of our industry and distorted in in ways that serve them.
“Competition is a sin.”
https://shareverything.com/2015/05/03/competition-is-a-sin-john-d-rockefeller/
“This Little Thing Called the Internet … Makes It Much Harder to Govern”
https://www.cnsnews.com/news/article/john-kerry-little-thing-called-internet-makes-it-much-harder-govern
Thanks for those links. Hence the vast mega-tsunami of non-establishment approved independent media lately on both the left and the right…
“mega-tsunami of non-establishment approved independent media lately on both the left and the right…”
Backed by whom?
“Non-establishment” is not the same as “mom and pop”.
And are these “Non-establishment” independent media given similar treatment in search results? The “Ministries of Truth” that Facebook and Google are now admitting to? They are God, I am not, so they can protect me from myself by avoiding my making my own decisions as to what is true to not.
I have had countless conversations with people presenting me with “facts” that I easily prove wrong via actual videos of what the person really said, but was not reported. There is the asymmetry to which I speak.
Even in the movie the Matrix, the Oracle acknowledges he has to allow Neo to exist for the Matrix to work and that he’s going to kill him every time he becomes too much of a problem. That comes from the need to have freewill, and how people wake up when freewill is completely removed. The internet equivalent is allowing truth to exist, until it becomes inconvenient, thus preserving the illusion of freewill. Plato spoke of this 2500 years ago, and Plato’s Alogory of the Cave (considered by philosophers to be a foundational story of philosophy) is exactly what The Matrix is based on:
https://www.youtube.com/watch?v=1RWOpQXTltA
The fact that one escapes never stops the slaves from trying to kill the bringer of truth …. Eve was in truth and was deceived, Satan caused her to leave the light, walk into the cave, rejecting truth and turning to belief in shadow. Adam followed, but knowing full well he was making a mistake.
The fact that *SOME* lawyers (many/most follow ethics) choose money (their client belief’s) over truth (RDNH) is proof of their client’s experiencing the same fate as Eve. The cave never goes away, those who try to escape it are always “killed” (metaphorically – money removed from their bank account) by those wishing to grow the number of occupants in the cave.
Thousands of years of history does not lie … There is a reason government education does not teach Plato’s Allegory of the Cave ….
Then there is the bible’s version of the Alegory of the cave, Luke 5:36-39. You can’t “repair” belief with truth.
“The old is better.” People generally prefer belief over truth ….
Truth or belief, in the cave or out, no half ways, pick ONE … Your choice John.
Sorry, The Architect not the Oracle:
https://www.youtube.com/watch?v=ZKpFFD7aX3c
Choice indeed …
To be deceived (Eve/Client) …
To disobey (Adam/Lawyer) …
Or live in truth …
That was a combination of typo, word omission and awkward phrasing on my part. I meant the vast mega-tsunami of censorship and suppression underway of independent media that is not “establishment approved” regardless of leaning. It’s not just for Alex Jones anymore – and it never was.
Yes.
Through the years we have watched many different attempts to control the message.
GDPR is another component as it gives the establishment cover to create deceptive sites and we can easily determine ownership. Alex Jones is not making any attempt to hide behind a domain name. However George Soros is, getting kicked out of his home country for his behavior.
I was listening to an eCommerce podcast last night and the same issue came up. Spoke about early days of marketing on Amazon, and how the changes now buttress the existing business while serving as a barrier to new entrants. In this case the issue is not nefarious, but it points to how very simple asymmetries creating huge asymmetrical bias. Just as allowing lawyers to do anything they want without penalty.
Perhaps a decision of RDNH should automatically result in the claimant being required to pay triple the cost the defense incurred. This seems very reasonable, you just used the system to try to steal something from somebody. We all know this will never happen because that is not the goal of the process. There is intentional bias, and that bias is DESIRED.
So, are we patrolling the other 1933 parties in this list using ‘Scratch’ trademarks (among the thousands of others)? Just in case they ‘may one day’ choose to hawk something flirty: https://www.tmdn.org/tmview/bookmark?s=1blsbudr4dnjfgrb54n04etb10.
This lawsuit reminds me of that time my neighbor built a gorgeous multimillion-dollar home next door, and I said, ‘The guy who owns that house is male. I have a child he could molest. So gimme that sweet house.’
If the domain registrant were the type of clueless wingnut who ‘might one day’ post porn on scratch.org, he wouldn’t have been selling credit card products, which no one under 18 can purchase. He wasn’t even selling gamer equipment, tech toys, etc…which he is well within his rights so to do.
There are millions of .orgs which ‘happen to have’ a revenue stream–it stands for .organization, not for .non-profit. It may be a shorthand brand aid for non-profits, but that doesn’t cut both ways. Dot-org isn’t cordoned off. Does atty Weslow call for some star chamber to retroactively spelunk the taxes of the ten-million-plus folks with a dot-org?
The domain was registered in 1998. Further to that:
“The foundation was founded in 2013 as the Code-to-Learn Foundation by Mitchel Resnick, Professor of Learning Research at the MIT Media Lab, and David Siegel, Co-Founder and Co-Chairman of the investment management firm Two Sigma.” (https://en.scratch-wiki.info/wiki/Scratch_Wiki.)
“In 2015, we changed our name to the Scratch Foundation to reflect our specific focus on Scratch and its dynamic ecosystem of interacting projects (Scratch, ScratchJr, ScratchEd) and events (Scratch Day, Scratch Conference, Scratch Educator Meetups).
For additional information, please visit these websites:
Scratch Foundation – scratchfoundation.org
Scratch Day – day.scratch.mit.edu
Scratch at MIT – scratch.mit.edu
ScratchJr – scratchjr.org
ScratchEd – scratched.gse.harvard.edu
Scratch Store – zazzle.com/scratchteam”
(https://www.linkedin.com/company/code-to-learn-foundation).
Here are some follow-on curriculum suggestions for this group:
-Lateral Thinking: Why Bother
-Succeeding Without Creativity
-Abusing the Legal System: Tyranny of the Weakminded
-Situational Awareness: Six Inches Around One’s Own Head
-The Good Kind of Bullying
-Umbrella Branding for Drips
-Aggressive Brand Strategy When Your Entity Is Ostensibly Anti-Commercialism
-Your Introduction to White Collar Crime
What an ill-conceived and embarrassing filing this is. From David Weslow of Wiley Rein? Duly noted.
Well David Weslow lost all credibility very quickly.