# Has anyone had to fight a squatter for a domain?



## johnblue (Apr 9, 2013)

I'm wondering if anyone had to go up against a squatter to get a domain back?  What did it involve and if there were any lessons learned that can  be shared?

The amateur radio club I am a member of lost its primary domain to a porn squatter because the person who registered the domain went MIA and then the domain expired.  Since the club is a 501c, it would appear that most federal courts in the United States will not allow a _pro se_ filing.  My casual research also points to ACPA case law that indicates that we could prevail based upon common law trademark.  But first, we need to get started.

I was thinking that we could simply ask if we could have it back.  <shrug>  The biggest problem that I have is that the porn squatter has obfuscated who and where they are.  The best that I can come up with an address in Andorra.  lol.  Yeah, right.

Any thoughts or comments are appreciated.

Thanks!


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## sossego (Apr 10, 2013)

Dost thou dare to wage war against the Mighty Lords of Porn?!?!


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## drhowarddrfine (Apr 10, 2013)

I feel for you. I let the domain name expire for my real personal name and some spammer picked it up. My real name is unusual so who would have thought anyone would be interested in that. I thought maybe they hoped I would pay to buy it back (fat chance) and give up after a year but they renewed it last month for another year. 

I read that spammers use such things to aid their spamming efforts so you can all thank me later.


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## johnblue (Apr 10, 2013)

drhowarddrfine said:
			
		

> I let the domain name expire for my real personal name and some spammer picked it up.


If you wanted to, you have a really good chance of getting your domain back.  Here is what I have found out so far:

The relevant statues are codified as 15 U.S.C. Â§ 1129 / 15 U.S.C. Â§ 1125(d)(1)(A)(i) and are commonly referred to as the Anticybersquatting Consumer Protection Act (ACPA). 

The ACPA made it â€œillegal for a person to register or to use with the â€˜bad faithâ€™ intent to profit from an Internet domain name that is â€œidentical or confusingly similarâ€ to the â€¦ name of another person or company.â€

The Congressional intent seems to be to provide two avenues for an individual to reclaim his or her name from a cybersquatter. Section 1129 has a lower standard of proof â€“ requiring only that the Plaintiff demonstrate that the Defendant had a â€œspecific intent to profit.â€ However, that â€œprofitâ€ must be sought through sale of the domain name itself, not just through its use. On the other hand, 15 U.S.C. Â§ 1125(d)(1)(A)(i), requires that the Plaintiff show that the Defendant had a â€œbad faith intent to profit,â€ but requires no specific intent to profit through the sale of the domain name.

So if your squatter is trying to sell it, go after them with section 1129.  If they are not trying to actively sell the domain, go after them with section 1125.  In our particular situation, the porn squatter is not trying to actively sell the domain so we are going to try section 1125 along with some sections on trademarks.

I think you could go for summary judgement and win on it's face value.  Then you can take your judgement to the TLD registrar and they will be forced to give your domain back to you.

:stud


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## drhowarddrfine (Apr 10, 2013)

I was aware of 1129 but not 1125. I could be wrong but isn't the expense involved not likely to make it worthwhile?


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## johnblue (Apr 10, 2013)

drhowarddrfine said:
			
		

> I could be wrong but isn't the expense involved not likely to make it worthwhile?


Afirm on the the expense, if you use a lawyer.

However, outside of court filing fee's, there should not be anything that prevents a real person (as opposed to a corporation) from obtaining summary judgement on squatters for a domain that consists of their name.  Based upon successful case law I think, and at the risk of over-simplification, that a "template" of pleadings can be created.  One would use these templates to construct the framework needed to litigate in a Federal court.

Obviously, there are variables that will need to be considered but, generally speaking, most squatters are in it for money and that puts them immediately in a very bad position.  The reverse of the expense equation is true also.  Since a company/corporation must be represented by a lawyer in Federal court the squatter will need to consider if they want that expense.  If they do not and they do not show up, a default judgement is automatically entered.

:e


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## drhowarddrfine (Apr 11, 2013)

Hmmm.


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## Crivens (Apr 11, 2013)

Looks good up to one point: Where is the registrar located?

Because even if you get a judge to decide in your favor, what will happen if the court order is sent to someplace outside of the US? Those might be tempted to file it in the round binder because they are outside of the jurisdiction of that court.

IMHO you would be better off to start with the registrar directly and check if what happens there is against their TOS. Then they might terminate the domain and you might get it then. 

If that fails you may still go to court.


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## expl (Apr 11, 2013)

johnblue said:
			
		

> If you wanted to, you have a really good chance of getting your domain back.
> ...
> 
> The relevant statues are codified as 15 U.S.C. Â§ 1129 / 15 U.S.C. Â§ 1125(d)(1)(A)(i) and are commonly referred to as the Anticybersquatting Consumer Protection Act (ACPA).



I have no degree in law, but last time I've checked internet was not governed by the US constitution/laws/acts (thank god). And considering the domain holder is not resident or citizen of the US you will have hard time suing him based on this act.


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## johnblue (Apr 11, 2013)

expl said:
			
		

> I have no degree in law, but last time I've checked internet was not governed by the US constitution/laws/acts (thank god). And considering the domain holder is not resident or citizen of the US you will have hard time suing him based on this act.


Regarding .com, .net and .org TLD's .. where a domain holder is physically located at is immaterial.  As you may know, Verisign is the registrar for those TLD's amongst others and is physically located in the State of Virgina.

The US ACPA is available to all parties with a dispute over any TLD domain name if the registrar is located in the United States.  This is because the law gives a US Federal court _in rem_ jurisdiction over the domain name registration itself.

For _in personam_ action, the Act simply states that the plaintiff must be the owner of a mark protected under "this section" which courts have found to be ambiguous.  For example, a trial court of appeal in the barcelona.com case found that a plaintiff could rely on Spanish trademark rights.  That court reversed the case on other grounds and vacated this portion without specifically ruling on it.  (Barclona.com Incorporated v. Excelentisimo Ayuntamiento de Barcelona)

For other TLD's like ccTLD's, I would assume any relief would need to come from the courts in that particular country.  However, since that is not something that I need to know about I have not spent anytime researching it.


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## expl (Apr 11, 2013)

I am not saying that there is no base for a lawsuit I am just saying that it*'*s not going to be as easy as it might seem.


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## fonz (Apr 11, 2013)

expl said:
			
		

> I am not saying that there is no base for a lawsuit I am just saying that its not going to be that easy as it might seem.


If I recall correctly there's an anecdote in Greg Lehey's book _"The Complete FreeBSD"_ about the domain microsoft.edu belonging (at that time) to some sort of business school in India. The accompanying remark was: _"probably beyond U.S. jurisdiction"_.


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## kpa (Apr 11, 2013)

I believe Verisign could pull the plug on the current domain holder and return it to the its rightful owner and get away with it without any major hassle. Whether they would do it is another matter.


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## Crivens (Apr 11, 2013)

johnblue said:
			
		

> Regarding .com, .net and .org TLD's .. where a domain holder is physically located at is immaterial.  As you may know, Verisign is the registrar for those TLD's amongst others and is physically located in the State of Virgina.


According to wikipedia, .org is not managed by Verisign. But since the one responsible for them also is in Virginia, that is a bit of nitpicking.

And as I already mentioned, you may get results faster and cheaper by first checking the TOS for those and then directly contact the registrar about that. Giving false name/address data should violate these TOS. They should be too happy to pull the plug on the squatter and sell it back to you - because the squatter is unlikely to ask for a refund or provide correct ID/address when complaining. So they should profit from that. And they can be made to understand that not doing it will result in court orders, which will increase their HR cost for the legal department. If that fails, then you still can go to court. So what would you loose?

@fonz: I must check my copy of that book again, I did not remember that one. But I know it is packed with such bits of information.


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## johnblue (Apr 11, 2013)

Crivens said:
			
		

> They should be too happy to pull the plug on the squatter and sell it back to you ..


I disagree.



ICANN regulations prevent a registrar from arbitrating domain name disputes.  Generally speaking, a registrar encourages first contact to be made with the registrant.  Failing that the next course of action is to file a UDRP claim or litigate.  Only after a favorable judgement is granted will a registrar take action.


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## Pushrod (Apr 12, 2013)

Unless this domain means the world to you, just give up. Use a variation of it or another TLD and move on.


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## chatwizrd (Apr 12, 2013)

Yeah I agree you need to give up. You will never get it back. Just choose another domain. I waited 10 years once for a domain I lost...lol.


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## johnblue (Apr 15, 2013)

gpatrick said:
			
		

> @johnblue, if you have all the answers then by all means do something instead of seemingly trying to impress everyone with your "legal" skills.


Hahahah.    You did see in my first post that I called it "casual research", correct?

Anywhoo .. nothing to see here bro that Google and Lexis Nexus doesn't already know about.  Even you could do it!  I'm guessing you don't have a LN account so here is a quick howto for Google:

Open your favorite web browser and in the address bar at the top type in the website address "google.com".  Now those are lowercase O's behind the "g" and not zeros.  After the page loads, in the center is a box where you would type in what you wanted to find out about.  Once you have something typed in, click on the button named "search".



I could go on but I am already getting bored with it .. but thanks for sharing!  I also wanted to let you know how much I love you man.  Pulling all of those quotes out of posts just for me.  The time you spent doing that really touched me and it brought a wee tear to my eye.



Switching topical gears .. so, again, the main reason why I started the thread was to see if anyone had experience with taking on squatters.  I hate working both ends to the center on a problem, any problem for that matter.  Why redo work if someone else has already done it?!!



And, again, to rehash the cool thing about ACPA is that, in a very narrow focus, it looks like it could be possible to turn this into something that is cookie cutter and generic enough that if someone wanted to they could do it on their own.  That is my goal anyway and it is very similar to what the RIAA did when they were suing en mass against John Doe's.

Some of the attorney's at the law firm where my wife worked at filed the local John Doe pleadings and it was nothing more than a massive cut and paste operation.  Essentially the first step, as any of you may know, is to go to the court and say we need to know who this IP address belongs to because they are infringing on our stuff.  The judge looks at what is presented and issues an order to an ISP that says tell these people who had this IP address .. blah, blah, blah.

Okay.

Stop thinking about what else happens in an RIAA case and apply that single procedural step to ACPA. 

Again, in a very narrow focus, ACPA could work the same way.  One files the pleadings that says these people do not have rights to this domain name, I do, and here is why.  Judge looks at what is presented and orders the domain name returned.

Key words:  narrow focus.  Translation of narrow focus:  either you have rights to the domain name because your real personal name makes up the domain or you have trademark rights.  Anything else and it might be smart to get a lawyer.  But you (as in some random person reading this thread and no one in particular) already knew that, right?


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## sossego (Apr 19, 2013)

Ye Olde Lordes of Porne shall seek revenge against thee.

Anyway, you would be better off creating a new name.


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## ShelLuser (Apr 20, 2013)

For what's it worth...



			
				johnblue said:
			
		

> I'm wondering if anyone had to go up against a squatter to get a domain back?  What did it involve and if there were any lessons learned that can  be shared?



Basically two main important aspects: try not to make too much noise, especially not without having a good understanding of their intentions. 

I once lost a domain because I was quite naive at that time and registered it to gain a "free" website. Yeah right.. That lasted very well for 6 months or so, then the advertisement and such became horribly intrusive. Because I wanted the domain back in my control I basically waited it out. It took another 6 months of waiting but eventually it expired and because I didn't make any noise what so ever the domain apparently lost all its value.

The second, though this maybe fueled with a bit of bias, I've had good results in the past with GoDaddy's domain monitoring services. Although please keep in mind that this doesn't mean it*'*s the answer to all domain issues, by _far_.

I had to deal with this kind of issues for a couple of customers of mine and so far always resorted to GoDaddy to "sort it out". Of course I don't get that many requests like this, but from the approx. 5 requests I got over the past year I managed to get at least 3 of them back.


If the domain isn't being used (websites and such) and you can wait it out I'd start by waiting if the domain expires at the expiration date, or if it gets renewed. When it does then could be a good time to e-mail them.

At the very least you'll know at that time that they have plans for the domain. But considering the industry we're talking about I wouldn't be surprised if this included a scheme to try and make some money from all this.

Hope this can help. I never had to resort to legal actions over these things myself and to be honest I really doubt that's the best way to go. In most cases it will cost a lot of money and make things a lot more vague.


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