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Anti-Cybersquatting Law Applies to Re-Registered Domain Names
Posted by Steven Wu on Wednesday, February 12 @ 03:11:55 EST Governance
According to this article at Law.com,
"A federal appeals court has ruled that although the Anti-Cybersquatting Consumer Protection Act is not to be applied retroactively, the re-registration of an Internet domain name brings the site within the law's reach."
A cleaner online copy of the Act is here. The Third Circuit's decision can be found here [PDF].

Brief case discussion inside.

The case is Schmidheiny v. Weber. Defendant Weber registered schmidheiny.com on February 28, 1999; the Act took effect on November 19, 1999. In June 2000, Weber re-registered schmidheiny.com, at which point plaintiff Schmidheiny (who, incidentally, is pretty rich) brought suit.

While the Act admittedly does not cover Weber's initial registration, the question in the case is whether the Act applies to Weber's re-registration in June 2000.

The relevant portion of the Act is 15 U.S.C. Sec. 1129, or Sec. 3002(b)(1)(A):

"Any person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person's consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person."
Later, the Act says:
"This subsection shall apply to domain names registered on or after the date of the enactment of this Act."
Weber's argument was that there is no talk of "re-registration" in the Act; hence, it does not apply to re-registered domain names. The court disagreed, proposing a statutory construction of the Act quite different from the district court's.

The district court had said, "[T]he plain meaning of the word 'registration' as used by Congress imparts to us no other meaning but the initial registration of the domain name" (emphasis added). The appeals court counters with two arguments:

First, "[t]he words 'initial' and 'creation' appear nowhere" in the Act.

Second, "when Congress provides exceptions in a statute, a court should infer that Congress considered the issue of exceptions and limited the exceptions to the ones [explicitly] set forth [in the statute]" (emphasis added). In this case, the Act does contain a lengthy exceptions clause; nowhere in that clause is "re-registration" excepted from the Act's application.

If these counter-arguments seem a little iffy, a clue as to what the appeals court was really concerned about comes near the end of the opinion:

"To conclude otherwise would permit the domain names of living persons to be sold and purchased without the living persons' consent, ad infinitum, so long as the name was first registered before the effective date of the Act."
Oh, the horror. Except, of course, that such a thing would be entirely possible if there was an initial registration scheme that merely required annual maintenance fees, rather than re-registration (sort of the way most web-hosting companies work: you don't re-submit an application every two years, you just pay a fee every month). It would also be possible if one of the domain-name companies changed their practices so you don't really have to "re-register," per se: just update your personal information, and send in another check.

I don't know what the status of domain-name maintenance is like now, but it can't possibly be too long before such a case comes up in court.

 
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Re: Anti-Cybersquatting Law Applies to Re-Registered Domain Names (Score: 0)
by Anonymous on Friday, February 14 @ 20:48:24 EST
It's worth reading this decision carefully ... it doesn't really say that renewal of an existing domain name is per se equivalent to registration. What it really says is that a change of registrant will be deemed equivalent to a new registration. That's consistent with the UDRP, which refers to a domain name being "registered" or "acquired."


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