Cybersquatting and the Nuclear Option: What the Protect IP Act and Stop Online Piracy Act (SOPA) Means to Domainers

Cybersquatting law addresses trademark infringement under the Uniform Domain Name Dispute Resolution Policy (UDRP Policy) and the Anticybersquatting Consumer Protection Act (ACPA).   But a new law which will directly affect domainers is gaining traction in Washington, D.C..  The Protect IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011) and the Stop Online Piracy Act (SOPA) are working their way through Congress and appear to have enough traction to lead to the conclusion that some variation of these bills may eventually pass Congress.  The Protect IP Act seeks to kill websites (i.e. domain names) which engage in copyright and trademark infringement when those websites/domain names are “dedicated to infringing activities.”  Essentially, The Protect IP Act works at the DNS level.  A website is taken down by pulling the domain name from domain name servers which serve up results in the United States.  Essentially, the domain name is blacklisted from the Internet if it is determined that the primary activity of that website is to engage in trademark infringement or copyright infringement.  Of course, trademark infringement on the Internet is primarily expressed by cybersquatting.

So what if you are the domain name registrant of a generic or descriptive domain name which displays a parking page?  And what if that parking page is serving up advertisements which gravitate towards known or unknown trademark uses (as the software is essentially designed to do)?

For domainers, the Protect IP Act could be used by trademark owners as an alternative to the Anticybersquatting Consumer Protection Act (ACPA) and/or Uniform Domain Name Dispute Resolution Policy (UDRP Policy) by simply having the allegedly infringing domain name itself removed from the Internet.  This means that there would be no direct navigation revenue for those domain names.  Essentially, a finding that a parked page on an allegedly infringing domain name could render that domain name asset to zero.  And if that domain name lives on a server controlled by the domain registrant which contains a large number of domain names which are the same or similar to U.S. registered trademarks, one has to wonder whether or not an entire domain portfolio might easily be wiped from the face of the Internet.

There is still a lot of discussion, editing and commentary concerning both the Protect IP Act and the Stop Online Piracy Act.  But domainers should be aware that these Acts could directly affect their domain portfolios, especially if they are using parking pages to drive revenue.  It is unclear to me, at least, whether a domain name can revive itself within the DNS after an adverse finding that it is primarily dedicated to infringing activities, trademark infringement or copyright infringement.  Every domainer should keep their eye on the ball here and understand what these new United State Statutes say and how they will work at the domain dame server (DNS) level.  

If you need to speak with an Internet lawyer who specializes in cybersquatting, domain name disputes and technology company representation, feel free to contact one of our attorneys for a consultation.   Click here for more information on the Protect IP Act.  Click here for more information on the Stop Online Piracy Act.