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.