Article

Domain name tasting

Under the contracts between ICANN and the top level domain names, registrars have a 5 day grace period before they need to pay the registry for domain names they have applied to register. This grace period was introduced to protect customers who had made a mistake in their application, and registrars if customers did not pay their fees. But now, this grace period is being used to test domain names. Those that attract little traffic are deleted on day 5 (or before), whereas those that attract a lot of hits (very often being mis-spelt versions of existing domains) are kept; pay-per-click advertising is then directed towards that site. This is another form of cyber-squatting. Because the practice is relatively low risk for applicants, and because the rewards are potentially great if a good domain is selected, domain name tasting is increasing. While some regard the practice as being very enterprising, others
do not agree. Many domains are perpetually re-registered by domainers. This means that trade mark owners’ ability to use the dispute resolution process to reclaim their rights is prejudiced, since under the 5 day grace period a registrar can hold a domain name in limbo for an indefinite period. The main factor in the prejudice is that, in that grace period, the domainer is not named. Where no registrant is identified, it is very difficult for a trade mark owner to take action against a registrant for infringing his trade mark. In cases where a registrant is identified, an infringement action would usually include seeking an order that the infringing domain name be transferred to the trade mark owner.
However, a US case concerning domain name tasting has been filed by a trade mark owner against a registrar. This case should provide some interesting arguments and considerations concerning
the tasting practice - until then victims of domain tasting will need to rely on cyber-squatting arguments, i.e. that the domains have been registered to divert business from the trade mark owner and
to take advantage of their goodwill. Unfortunately the case is not due to be heard until October 2007.

For further enquiries please contact Genevieve Mead on 01892 701308 or email genevieve.mead@
ts-p.co.uk.

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