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Your Source for Domain Dispute
News and Information |
August 26,
2008,
Vol. 9 No. 08 |
Welcome to Domain News, a
complimentary news service of the National Arbitration Forum. The
National Arbitration Forum is one of the world's largest neutral
administrators of arbitration services and one of three ICANN-approved
providers. We invite you to visit our website at
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In This Issue
The Great Atlantic & Pacific Tea Co., Inc. v. Name Administration Inc.
Internet Users Face Increased Charges for Bandwidth Use
Scrabulous Removed From Facebook
Campaign Domain Names in High Demand
Recent
Decisions
Homrich, Inc. v. Akm Rahman a/k/a A Rahman
Complainant, Homrich, Inc., a leading construction
company in Michigan, USA, sought relief against Respondent for its
registration and use of the <homrich.com>, <homrich.net>, and
<homrich.org> domain names. The Panel found the disputed domain
names to be identical to Complainant’s common law HOMRICH mark under Policy
¶ 4(a)(i). The parties were in dispute as to whether Respondent offered to
sell the disputed domain names in excess of US $250,000.00, because the
emails purporting to sell the disputed domain names were not sent from any
email addresses listed on the disputed domain names’ WHOIS listings. The
Panel found that Respondent had indeed offered to sell the disputed domain
names, either on his own or through an agent. Accordingly, the Panel found
Respondent’s use and registration of the disputed domain names to
demonstrate Respondent’s bad faith and lack of rights or legitimate
interests pursuant to Policy ¶¶ 4(a)(iii) and 4(a)(ii) respectively.
Accordingly, the Panel ordered the disputed domain names to be transferred
to Complainant.
Homrich, Inc. v. Rahman, FA 1213608 (Nat. Arb. Forum Aug. 26,
2008).
Walter Tripovich v. Michael Klein
Complainant brought a UDRP Complaint against Respondent
in regard to the <leftiesonly.com> domain name. The Panel found that
Complainant had common-law rights in the LEFTIES ONLY mark and that the
disputed domain name was confusingly similar to Respondent’s mark for the
purposes of Policy ¶ 4(a)(i). Respondent utilized the disputed domain name
to resolve to a website displaying a variety of advertisements and links to
direct competitors of Complainant until it received Complainant’s
cease-and-desist letter. Thereafter, the disputed domain name resolved to
an “Under Construction” website. Respondent argued that it was unaware of
the competing links until Complainant brought them to its attention. The
Panel found that Respondent had an affirmative duty to be aware of what use
was being made of its disputed domain name, and accordingly found this use
to demonstrate a lack of rights and legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(a)(ii). The Panel also found
Respondent’s use of the disputed domain name to be evidence of Respondent’s
bad faith registration and use pursuant to Policy ¶ 4(a)(iii). Accordingly,
the Panel ordered that the <leftiesonly.com> domain name be
transferred to Complainant.
Tripovich v. Klein, FA 1211537 (Nat. Arb. Forum Aug. 14, 2008).
The Great Atlantic &
Pacific Tea Co., Inc. v. Name Administration Inc.
Complainant owns and operates over thirty stores under
the THE FOOD EMPORIUM mark in the New York City metropolitan area and
brought a UDRP complaint for the transfer of the <foodemporium.com>
domain name against Respondent. The Panel found the disputed domain name to
be confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Additionally, the Panel found the disputed domain name to consist of generic
common terms. The Panel recognized that Respondent was in the legitimate
business of operating a network of domain names that offer links directly
related to the generic terms contained in the domain name. Moreover, the
Panel found that Respondent, located in the Cayman Islands, had no actual
knowledge of Complainant or its mark. For these reasons, the Panel found
that Complainant had failed to establish that Respondent lacked rights or
legitimate interests in the dispute domain name under Policy ¶ 4(a)(ii).
Having failed to establish this element, the Panel denied the transfer of
the <foodemporium.com> domain name.
The Great Atl. & Pac. Tea Co., Inc. v. Name Admin. Inc., FA 1204907
(Nat. Arb. Forum Aug. 26, 2008).
Glenda Jenelle Greene, d/b/a Greene Personnel v.
Greene Resources, Inc. c/o Gary Greene
Complainant, Greene, d/b/a Greene Personnel, brought a
UDRP claim against Respondent, Greene Resources, Inc., for the <greenepersonnel.com>
and <greenepersonnel.net> domain names. Complainant contends
Respondent was using its GREENE PERSONNEL mark to advertise competing
personnel services in the same geographic market of North Carolina, USA.
The Panel found that Complainant had established common law rights in its
GREENE PERSONNEL mark, and that the disputed domain names were identical to
that mark under Policy ¶ 4(a)(i). The Panel also found that Respondent’s
use of the disputed domain names was in direct competition with
Complainant’s personnel services and thus Respondent lacked rights and
legitimate interests in the disputed domain names pursuant to Policy ¶
4(a)(ii). Finally, the Panel found, based upon the diversionary use of the
disputed domain names and the high probability that Respondent intended to
profit from Complainant’s goodwill associated with its GREENE PERSONNEL
mark, that Respondent had acted in bad faith pursuant to Policy ¶ 4(b)(iii)
& (iv). Therefore, the Panel transferred the disputed domain name to
Complainant.
Greene v. Greene Resources, FA 120322 (Nat. Arb. Forum Aug. 4,
2008).
Hershey Chocolate and Confectionery Corporation v.
Milk Duds are ?
Complainant, brought a UDRP claim against Respondent,
Milk Duds are ?, for the <milkduds.com> domain name. Respondent
contended that the disputed domain name was comprised of two words, “milk,”
the common product of a cow, specifically a Jersey cow, and “duds,” a
commonly used term for clothing. The Panel found that Complainant had
rights in the mark, and that the <milkduds.com> domain name was
identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i). The <milkduds.com>
domain name had resolved to various websites over the past ten years,
ranging from “under construction” websites, to websites purporting to offer
“cow clothing” in the future. The Panel found that these uses did not
confer rights or legitimate interests in the disputed domain name pursuant
to Policy ¶ 4(a)(ii). The Panel then found that Respondent engaged in bad
faith registration and use under Policy ¶ 4(b)(iii) because the disputed
domain name was registered to divert Internet traffic from Complainant to
Respondent’s website. The Panel transferred the disputed domain name to
Complainant.
Hershey Chocolate & Confectionery Corp. v. Milk Duds are ?, FA
1213355 (Nat. Arb. Forum Aug. 5, 2008).
E-PRACTICE
Internet Users Will Face Increased Charges for Bandwidth
Use
Most Internet users currently browse the Internet
visiting websites, watching videos, uploading pictures, and sending emails
all without having to worry about the amount of “bandwidth” that they are
using.
Bandwidth is the amount of information or data that can be sent through
a network or modem connection; it can be compared to “a highway with cars
traveling on it. The highway is the network connection and the cars are the
data. The wider the highway, the more cars can travel on it at one time.”
Comcast,
a leading provider for 14 million Internet subscribers, announced last
week that beginning on October 1, 2008 “residential
Internet customers [will] have a maximum bandwidth usage of 250 gigabytes.”
According to Comcast, less than 1 percent of Internet users will be affected
by this cap.
Comcast is defining Internet users using over 250GB/month as excessive
users and asserting that these excessive users “could negatively impact the
online service for other customers.” However, Comcast is unwilling to
release what individual Internet users have for usage in a month stating
that on average users are only at 2-3 GB/month. Instead, Comcast claims
that it will notify excessive users once they reach the cap. If an
excessive user exceeds 250 GB/month more than once in a six month period,
their service will be subject to termination for up to one year.
Currently, there are tools available online to measure the amount of
bandwidth used over time, called bandwidth meters, which can be
downloaded to each computer in a residence. However,
some critics are upset that without a universally adopted bandwidth
monitor to provide reliably consistent readings for both ISPs and customers,
disputes may arise over the amount of bandwidth actually used.
According to
some opponents of the “bandwidth cap,” Internet providers like Comcast
and AT&T are only trying to make a profit from Internet users seeking
materials that are currently available for free, while hiding behind the
proposition that “[Internet providers] are going to be butting up against
the physical capacity of the Internet by 2010.” According to others,
Internet providers may be justified in being worried about the
35-50% increase in traffic each year, but caution that this has been the
same growth rate for the previous few years.
While it seems that Comcast’s bandwidth limit would
only affect about 140,000 people, bandwidth caps by other providers would
most likely affect a greater percentage of their customers.
Time Warner Cable’s trial program caps user bandwidth at 40GB/month.
Wireless providers are even getting in on the act. AT&T and Verizon
Wireless
already cap bandwidth at 5GB/month and
Sprint seems to be following suit, by capping its users’ bandwidth at
5GB/month as well. What some have deemed even more troubling is that
new high-speed devices like Apple’s 3G iPhone potentially cannot be used to
their full capability. Orange, a French wireless provider,
admits to limiting iPhone users to a snail-like 384KB bandwidth, but has
promised to increase its network speed to 1MB in the coming months.
With the increasing number of providers limiting usage,
it looks as though the practice of capping bandwidth is here to stay. But
in the end, most users would have to greatly increase their usage to exceed
a limit of 250GB/month like Comcast’s, and are therefore probably not going
to be affected by such a limit.
In The News
Facebook Removes Popular Internet Game after Copyright
Complaint
Siliconvalley.com, August 25, 2008: In early August,
developers of the Facebook application game Scrabulous removed the popular
Internet game from Facebook in North America, after Hasbro filed a Federal
suit in New York. Hasbro owns rights to Scrabble and claimed that the
Internet game Scrabulous infringed on the rights of their game. Now, before
other suits could be filed around the world, Facebook has decided to pull
the game completely. In response to the complaints, the developers of
Scrabulous have changed its name to Wordscraper and have changed the
Scrabble-like square tiles into circles.
Link to Full Story
Google Disregards “No Trespassing Signs”
C|net.com, August 24, 2008: Google’s Street View
service, which gives Internet users a first-hand driver’s perspective of
streets around the country, is raising concern over privacy issues. In a
story posted by the Santa Rosa Press-Democrat, a Street View driver
drove past two “No Trespassing” signs to collect images which were 1,200
feet from a public road. Apparently, this isn’t the first time that the
Google Street View has obtained images by disregarding the privacy of
private streets. In June, North Oaks, a private community of 4,500
residents in St. Paul, Minnesota sent a letter to Google demanding that the
images that had been taken of the streets in their private community be
taken off, which Google quickly did. Other images from more than 100
private roads can be viewed on Google’s Street View service. In response to
the claims of privacy encroachment, Google stated that they have the right
to photograph private roads, but they try to avoid it.
Link to Full Story
Internet Traffic Continues to Grow, But at Slower
Rate
Washingtonpost.com, September 3, 2008: TeleGeography
Research’s new study shows that Internet traffic grew 53 percent from
mid-2007 to mid-2008. This rate is down from 61 percent growth in traffic
in the previous year. U.S. Internet service providers claim that they are
struggling with the rapid expansion of online traffic and have the need to
imposing monthly download limits on heavy Internet users. However,
TeleGeography noted that Internet traffic now uses just 29 percent of the
available bandwidth, leaving a large amount of room to grow.
Link to Full Story
Political Campaigns Navigate Treacherous Waters in
Search of Treasured Domain Names
Domain Name News, August 24, 2008: With so much Internet attention paid to
U.S. Presidential campaigns, both the campaigns and outside parties put a
premium on acquiring the rights to domain names that incorporate the names
of the candidates. Some of these names inadvertently draw much of this
traffic; for instance, the <Obama.com> domain name resolves to a Japanese
landing page. Others may unfortunately coincide with existing domain names
and their owners – <KerryEdwards.com> was and still is owned by a man named
Kerry Edwards. At least one state, California, has passed the Political
Cyberfraud Abatement Act, designed to prevent people from registering
political candidate domains.
Link to Full Story
Upcoming events
| October 23-25,
2008 |
AIPLA Annual Meeting
Washington, D.C.
|
| November 2-7, 2008 |
ICANN
Meeting
Cairo, Egypt
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Let the National Arbitration
Forum know of your upcoming events for listing in Domain
News. Send event listing information to:
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