A common concern among trademark holders has finally hit the mainstream press this week. Wired reports that Harvard University Business School professor Ben Edelman, one of the giants of the academic study of Internet architecture, has released a report stating that Google profits extensively from its use of pay-per-click ads on parked and typosquatted domain names.
Of note is Edelman’s contention that legitimate domain owners often pay for the referrals that come to their sites through the typosquatted domain names. Legitimate owners of domain names who purchase ads to direct traffic to their sites often end up, through no choice of their own, displaying ads on the typosquatted domains because of Google’s contextual ad serving. These ads then redirect confused surfers to the legitimate owner’s site, which makes the legitimate owner an indirect beneficiary of the typosquatter’s efforts.
Edelman states that the majority of typosquatted websites serve Google ads, which contribute up to 99% Google’s $1.5 billon net income in this quarter alone. Edelman and other attorneys have filed a lawsuit against Google’s Ad Sense for Domains program, contending that the program infringes the rights of trademark holders. Google contends that its removal policy insulates it from liability for contributory infringement of trademarks, a sort of implied shield from liability much like the DMCA’s safe harbor provisions. But Edelman does not buy that argument:
The law simply says, "do not typo-squat. Do not register, traffic in or use infringing domain names or confusingly similar names of trademarks," Edelman says, referring to the Anti-cybersquatting Çonsumer Protection Act of 1999.
It will be interesting to see how this one comes out because this a major issue underpinning the longstanding debate over legitimate white hat domainers vs. trademark infringers. If you find that your business’s goodwill has been hijacked by a typosquatter, or if you are a domainer who believes that your use of a parked domain page was in good faith, contact an attorney with experience in this area.