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        A Home-Based Business Online
        True story of the real cost of losing an expired domain name. Find out how to stop it.

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        It Could Happen To You

        © 2021 Elena Fawkner

        No, I'm not talking about the warm and fuzzy movie that was
        on cable the other night with Nicholas Cage and Brigitte Fonda.
        I'm talking about another type of experience altogether - one of
        the decidedly cold and nasty variety.




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        You know what cybersquatting is, right?  It's when someone
        registers a domain name that heretofore has been someone
        else's trademark, with the intent to hold the name for ransom.
        Sometimes these people identify trademarks in the market place
        and snap up the domain name figuring that, sooner or later, the
        owner of the trademark is going to want to register the domain
        name and may even be prepared to pay handsomely for the
        privilege. 

        Other times, and this may even be worse, these trolls seize
        domain names that have lapsed due to their owners failing to
        renew them in time.  When the former owner tries to renew they
        soon learn to their horror that someone else has gazzumped
        them and are demanding several hundreds or thousands of
        dollars to return their property to them.  As reprehensible as
        this practice is, there's nothing new about it and the courts are
        chock-full of cases brought by the outraged victims.

        But put *yourself* in the shoes of the poor person who has
        unwittingly allowed her domain name registration to lapse only
        to find that "Dave Web" is now the rightful owner and wants
        $550 from you to give it back. 

        Now put yourself into these size elevens ... not only has Dave
        Web kidnapped your domain name, the very one that used to
        point to the site containing all of your hard work for the past
        three years, the domain name that is synonymous with your
        hard-earned reputation, not only that ... it now points somewhere
        else. 

        To a porn site.

        We have now graduated from "mere" cybersquatting to criminal
        extortion.  Not to mention criminal defamation.

        This, believe it or not, is what happened to Jan Tallent-Dandridge
        just this week.  Many of you will know Jan as the publisher of Rim
        Digest (http://www.rimdigest.com).  You may also be familiar with
        her other websites, http://www.marketingwarrioress.com and
        http://www.jtdbizopps.com, although if you tried to visit the latter site
        today, you'd get a rather unpleasant surprise.  This is the domain
        name hijacked by Dave Web.

        To give you the background to this sorry tale, I asked Jan's
        permission to reprint her email to me

        "... I had a domain name, jtdbizopps.com, for over two years but did
        not renew it. Instead I set up marketingwarrioress.com as a mirror
        and quit running ads, swaps, etc. for the old name.

        "When it came up for renewal, I was going to renew it just to keep it
        from being used for a year or so as I still had ads and link swaps out
        there I could not track down.

        "Network solutions would not release the name to me without my
        paying them $70 for 2 years and THEN transferring it somewhere
        else. I felt this was ridiculous since namebargain.com, etc. are only
        $10 or so a year.

        "I did not renew in time and when I did try, about a week after the
        cancellation date, it was "in purge", to quote NS, and I would have
        to wait 30 days or so for it to become available again.

        "During this time an individual bought it somehow and offered it back
        to me for $550.00.

        "Needless to say, I declined, number one, I did not want to USE the
        name anyway and number two, that was ransom!

        "Well, tonight I found out that this company is parking a PORN site at
        that domain name and once again offered to sell it back to me for
        $550.00.   I feel this is obvious blackmail but not only do I not have
        the money, I would not pay that ridiculous amount even if I could.

        "My eBook had a "live" link that was accidentally left as
        jtdbizopps.com instead of marketingwarrioress.com though both
        my compiler and I thought they had all been changed.

        "I was told off by a new subscriber who eagerly downloaded my
        eBook and then clicked the link that went straight to the porn
        site.  I have spent the past 3 years working myself half to death,
        as I know YOU know about, and now my credibility and NAME
        are in danger due to this "person" using my ex-domain for this
        purpose.

        "I know there is no way to get the name back without paying for it
        and/or stopping this "person" from using it for this or any other
        business, but I am hoping there is some damage control I can do
        to maybe make it worth his/her/ITS while to discontinue using a
        domain I can prove I had been using for over 2 years in this way
        if it hurts my business or name in any way.

        "Sorry for rambling, but once I quit crying, screaming, throwing
        up, crying and screaming some more I am now down to
        incoherent stuttering.

        Jan T-D
        Marketing Warrioress and Publisher
        (Rim Digest)
        charter iCop member"

        My primary motivation in writing this article is to help get the word
        out about what has happened to Jan so that, hopefully, those who
        do not know her will realize that she is, in fact, an innocent victim in
        all of this and not some nefarious person who gets her kicks from
        enticing people to visit a porn site when they thought they were
        visiting an internet marketing site.

        That said, what lessons can we all learn from Jan's experience?
        Well, there are a few ...

        1.  KNOW WHEN YOUR DOMAIN NAMES EXPIRE AND RENEW
        THEM BEFORE THEY LAPSE

        First and foremost, know when your domain names expire and
        take steps to renew them before they lapse.  As Jan's experience
        illustrates only too well, there are vultures out there just waiting
        to swoop if you make even one false move.  There are no second
        chances in this business and, until the law catches up with the
        reality of doing business online, it's every man and woman for
        themselves.

        2.  SOME THINGS COST MORE THAN MONEY

        The second point to note is that Jan allowed her registration to
        lapse because she wanted to spend $10 rather than $35 (per year)
        to renew the name.  That decision cost her a whole lot more than
        $25.  Once your good name and reputation are cast into doubt, no
        amount of money can get them back.

        I know Network Solutions cop a lot of flak and possibly deservedly
        so, if some of the stories I've heard are true.  All I know is that my
        domain names are registered and renewed with them and I haven't
        had any problems (touch wood). 

        Bottom line, make sure your names are registered, stay registered
        and that you use a reputable domain registrar.

        3.  KNOW YOUR RIGHTS

        => Domain Name Registrations Generally

        As a general rule, you can register any domain name that is not
        already registered (subject to trademark considerations discussed
        below).  If your domain name is sufficiently distinctive, for example,
        jtdbizopps.com, the bit before the .com may also be a common law
        trademark (unless, of course, it抯 registered and then it抯 a registered
        trademark).  If you DO have a distinctive domain name, then the
        discussion in the next section applies to you.

        If you don抰 have a distinctive domain name, however, and by this
        I mean a name that is 揹escriptive?or in general usage, for example,
        揾ome-business.com? then this name will be neither a common law
        trademark nor a registrable trademark.

        In this case, once you抳e lost your domain name registration,
        you are, not to put too fine a point on it, screwed.  You don抰 have
        much in the way of recourse other than for the 揼eneric?legal
        avenues which may well be too expensive for you to pursue.
        These avenues are discussed below.

        => Domain Names and Trademarks

        On the other hand, if you have a distinctive domain name (i.e.,
        one that is not in common usage), then that name is also
        likely to be a common law trademark (unless, as stated above,
        you抳e registered it, in which case it抯 a registered trademark.
        And, if you do have a common law trademark, I would recommend
        that you register it.  Registration can only strengthen your
        position.)

        The law generally sides with the pre-existing trademark owner
        over the domain name holder.  In addition, the U.S. has
        enacted the federal Anti-Cybersquatting Consumer Protection
        Act (the 揂ct?.  Under the Act, you can sue a cybersquatter to
        get back your domain name and sometimes damages to boot.

        So, what抯 actionable under the Act?  Here抯 an extract from
        the Act itself:

        揂 person shall be liable in a civil action by the owner of a mark,
        including a personal name which is protected as a mark ... if,
        without regard to the goods or services of the parties, that person ?br>
        (i) has a bad faith intent to profit from that mark ...; and
        (ii) registers, traffics in, or uses a domain name that ?br>
        (I) in the case of a mark that is distinctive at the time of registration
        of the domain name, is identical or confusingly similar to that mark;
        (II) in the case of a famous mark that is famous at the time of
        registration of the domain name, is identical or confusingly similar
        to or dilutive of that mark; or
        (III) is a [registered] trademark ...?br>
        In terms of what constitutes 揵ad faith? the Act provides that the
        court may consider factors (among others) such as:

        揟he person抯 [i.e., the alleged cybersquatter抯] intent to divert
        customers from the mark owner抯 online location to a site
        accessible under the domain name that could harm the goodwill
        represented by the mark, either for commercial gain or with the
        intent to disparage the mark, by creating a likelihood of confusion
        as to the source, sponsorship, affiliation, or endorsement of the
        site; and

        搕he person抯 offer to transfer, sell, or otherwise assign the domain
        name to the mark owner or any third party for financial gain without
        having used, or having an intent to use, the domain name in the
        bona fide offering of any goods or services, or the person抯 prior
        conduct indicating a pattern of such conduct.?br>
        A common problem is identifying the culprit.  In Jan Tallent-
        Dandridge抯 case, for example, the only information about the
        perpetrator is:

        offers@NameRegister.com
        Registrant:
        Dave Web (JTDBIZOPPS-COM-DOM)
        Buy This Domain
        5 Tpagrichnery St ., # 33
        Yerevan, Armenia 375010
        AM
        208.978.3555
        208.978.3555
        offers@NameRegister.com

        Call me skeptical, but somehow I doubt that抯 a real name and
        address.  Fortunately, the Act has anticipated this problem:

        揟he owner of a mark may file an in rem civil action against
        a domain name [an 搃n rem?proceeding is an action against the
        thing rather than against a defendant - in this context, it means
        that the court can make an order in relation to the domain name
        itself rather than against Dave Web personally such as ordering
        him to surrender the domain name] ... ?

        And as for remedies, assuming you are able to identify your
        particular scumbag, these include injunctions and damages
        (either actual or, in a case where your individual name is at
        issue, statutory damages of between $1,000 and $100,000
        per domain name).

        => Generic Legal Avenues

        Whether or not you can pursue an action under the Act, there
        are a number of legal avenues open to anyone in Jan抯
        situation (and by that, I mean, someone who is using the
        domain name to point to a site that damages your reputation).

        First off, let抯 recognize this practice for what it is.  Extortion.
        Pure and simple.  It抯 a crime.  So is criminal defamation. 

        Write a strongly worded cease and desist letter to the offender,
        threatening to report them to the District Attorney and/or the
        police and the Federal Trade Commission as well as instituting
        a civil suit.  You are more likely to get a result if the letter comes
        from your attorney.

        If the offender doesn抰 comply, report them.  As for what action
        will be taken, your guess is as good as mine but at least you抳e
        done what you can.

        If you have the resources to do so, you can also bring civil
        proceedings against the offender on the same grounds.  The
        conduct in question is egregious enough that you may well get
        punitive damages awarded in your favor.

        Finally, and I HATE to even suggest this, the most cost-effective
        option of all may be to pay what is demanded.  That at least gets
        the domain name back under YOUR control where it belongs. 
        And there抯 nothing to stop you turning around and reporting the
        individual in question to the DA, police, FTC etc..  In fact, paying
        over the money may be your best chance of identifying the
        perpetrator so you can initiate a criminal prosecution.

        Of course, all of this is damage control which is a VERY poor
        substitute for prevention.  So go back to Item 1. and calendar
        your domain name due dates to avoid getting into this mess
        in the first place.

        _________________________

        Elena Fawkner is editor of A Home-Based Business Online ... practical ideas, resources and strategies for your home-based or online business. http://www.shelteredturtle.com

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