Your Source for Domain Dispute News and Information

June 2010, Vol. 11 No. 04

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 four ICANN-approved providers. We invite you to visit our website at domains.adrforum.com.

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ANNOUNCEMENT: Due to oversight on our part, we neglected to send you an issue of Domain News in May 2010. We therefore offer a "double issue" to help you get caught up on domain name related news. Please accept our apologies.

IN THIS ISSUE

American Laser Centers v. Kresch Legal Services c/o Scott Steele

Social Networks and Subpoenas

Do We Have Enough IP Addresses Left?

The New Phishing Scheme: Tabnapping

National Arbitration Forum Procedural Updates


RECENT DECISIONS

AM General LLC v. CDC

Complainant, AM General LLC, brought this UDRP action in relation to its HUMVEE mark against Respondent, CDC, for the <xhumvee.com> domain name. Respondent was using the disputed domain name to sell used Humvee vehicles that Respondent modified and made available to the general public. Complainant argued that Respondent was using its HUMVEE mark in violation of the ICANN Policy without authorization from Complainant. Respondent argued that there was no bad faith in its registration of the disputed domain name because Internet users would not be confused as to the sponsorship or affiliation of Respondent's website. The Panel found that Respondent's disputed domain name was registered in bad faith where it had actual knowledge of Complainant's mark and therefore chose to transfer the disputed domain name to Complainant. AM Gen. LLC v. CDC, FA 1316858 (Nat. Arb. Forum May 14, 2010).

CNRV, Inc. v. Vertical Axis Inc.

Complainant, CNRV, Inc., brought a UDRP claim against Respondent, Vertical Axis Inc., for the <adventurerv.com> domain name. Respondent asserted a claim of reverse domain name hijacking and requested a three member panel. One Panelist held that Complainant was aware that it was putting forth a claim for an inherently weak common law trademark confined to only one part of a state and that the name was commonly used elsewhere in the United States. That Panelist also found that Complainant's disparaging allegations against Respondent were made without evidence or argument to justify them and indicates harrassment in bringing this claim. The other Panelists also considered the inherent unlikeliness that Respondent could have known of Complainant when it registered the domain name given Complainant's limited geographic use of the domain name. Thus, the Panel declined to transfer the disputed domain name and found that the Complaint was brought in bad faith in an attempt at reverse domain name hijacking and constituted an abuse of the administrative proceeding. CNRV, Inc. v. Vertical Axis Inc., FA 1300901 (Nat. Arb. Forum May 3, 2010).

Honeywell International Inc. v. Ademco Online

Complainant, Honeywell International Inc., brought this UDRP action in reference to Respondent's <ademcoonline.com> domain name. Complainant owns the rights to the ADEMCO trademark in relation to burglar and fire alarm equipment and contended that Respondent was using the disputed domain name without authorization and for profit. Respondent argued that it was merely explaining to customers how to install ADEMCO products and that its use of the disputed domain name and advertisements contained on the resolving website was actually beneficial to Complainant. The Panel found that the advertisements contained on Respondent's website created a competing interest with Complainant's business. Therefore, the Panel chose to transfer the disputed domain name to Complainant. Honeywell Int'l, Inc. v. Ademco Online, FA 1318454 (Nat. Arb. Forum April 28, 2010).

Forex Club International Limited v. INO.com, Inc.

Complainant, Forex Club International Limited, brought a UDRP claim against Respondent, INO.com, Inc., for the <forexclub.com> domain name. The Panel found no bad faith under Policy 4(b)(i) where Complainant was the first to bring up the sale of the disputed domain name and where Respondent did not regsister the disputed domain name for the purpose of selling the disputed domain name to Complainant. Complainant is in the investment service business and offers foreign exchange financial services while Respondent's disputed domain name displays links to Respondent's investment information services. The Panel found that Respondent's information services do not compete with Complainant's actual services and therefore the disputed domain name does not compete with or disrupt Complainant's business. Therefore, because the Panel found that Complainant failed to prove the element of bad faith registration and use, the Panel declined to transfer the disputed domain name. Forex Club Int'l Ltd. v. INO.com, Inc., FA 1316362 (Nat. Arb. Forum May 17, 2010).

American Infrastructure, Inc. v. Jeffrey W. Rode

Complainant, American Infrastructure, Inc., brought this UDRP action for the <americaninfrastructureinc.com> and <americaninf.com> domain names that were registered by Respondent, Jeffrey Rode. Respondent was a former employee of Complainant and had registered the disputed domain names with Complainant's authorization through his own account. Respondent consented to the transfer of the <americaninfrastructureinc.com> domain name, but did not do the same for the <americaninf.com> domain name so the Panel reviewed the evidence on the record to make its decision. The Panel found that this type of matter is outside the scope of the Policy because the case was more a question of credibility, corporate management and the business relationship between the parties. Therefore, the Panel transferred the <americaninfrastructureinc.com> domain name and dismissed the Complainant for the <americaninf.com> domain name. Am. Infrastructure, Inc. v. Rode, FA 1311550 (Nat. Arb. Forum April 16, 2010).

Ammar Jarrous, MD v. Amarillo Cardiovascular & Thoracic Surgery

Complainant, Ammar Jarrous, MD, brought a UDRP claim against Respondent, Amarillo Cardiovascular & Thoracic Surgery, for the <amarilloveins.com> domain name. Complainant and Respondent in this case are competitors who both offer surgical services which include treatment of varicose veins and both operate in the city of Amarillo. Complainant and Respondent had been associated in the past, but parted on unfriendly terms. The Panel found, and evidence supported, the fact that Respondent is using the disputed domain name in conjunction with his medical practice. The Panel also found that use of the disputed domain name preceded the instant dispute and thus found that Respondent had made a bona fide offering of goods or services under Policy 4(c)(i). The Panel further found that because Respondent had rights or legitimate interests in the disputed domain name, it did not register or use the disputed domain name in bad faith pursuant to the Policy. Therefore, the Panel declined to transfer the disputed domain name from Respondent to Complainant. Ammar Jarrous, MD v. Amarillo Cardiovascular & Thoracic Surgery, FA 1306970 (Nat. Arb. Forum May 5, 2010).

Richard Dawkins v. J. Gabriel

Complainant, Richard Dawkins, brought this UDRP action in reference to the <richarddawkins.com> domain name that was registered and used by Respondent, J. Gabriel. Complainant asserted that he had developed secondary meaning in his personal name through his teachings, postings, and book writing about evolution and atheism. Complainant contended that Respondent was not using the disputed domain name as a fan site, as Respondent asserted, but as a portal of hyperlinks for Respondent's commercial gain. Respondent denied these allegations, instead claiming that it had become a fan of Complainant after reading some of Complainant's books, and further asserted that Respondent's resistance to selling the disputed domain name indicated a lack of bad faith. The Panel found that Complainant had common law rights in his personal name, and that Respondent had registered and used the disputed domain name in bad faith by redirecting Internet users to websites unrelated to or in competition with Complainant. Therefore, the Panel decided to transfer the disputed domain name to Complainant. Dawkins v. Gabriel, FA 1317157 (Nat. Arb. Forum May 21, 2010).

American Laser Centers v. Kresch Legal Services c/o Scott Steele

Complainant, American Laser Centers, brought this action for the <americanlasercentersclassaction.com>, <americanlasercenterclassaction.com>, <americanlasercenters.org>, and <americanlasercenter.org> domain names that Respondent, Kresch Legal Services c/o Scott Steele, registered. Respondent contended that Complainant did not own a service or trademark for its business name and that Complainant did not prove that it had acquired secondary meaning among consumers. Further, Respondent argued that it was using the disputed domain names legitimately because Respondent was seeking former customers of Complainant, who had been harmed by Complainant, who might be searching for information on how to bring a lawsuit against Complainant. The Panel found that Complainant did have rights in its AMERICAN LASER CENTERS mark through its continous and extensive use of its name in advertising and at Complainant's more than 200 locations nationwide, and that Respondent was not using the disputed domain names for a legitimate purpose. Therefore, the Panel decided to transfer the disputed domain names to Complainant. Am. Laser Ctrs. v. Kresch Legal Servs., FA 1317314 (Nat. Arb. Forum May 26, 2010).

Joseph L. Carpenter v. Foresight.com and Andy Booth

Complainant, Joseph L. Carpenter, owns a trademark for its MYSCHOOL mark in connection with online information and advertisements in the education field. Complainant brought this UDRP action for the <myschool.com> domain name that was purchased by Respondent, Foresight.com and Andy Booth, and is being used for advertisements to educational institutions and services. Respondent argued that the domain name was made from generic terms and that its use of the domain name was legitimate. The Panel found that the disputed domain name was comprised of generic terms and was being used to advertise products related to those words, and therefore Respondent had rights and legitimate interests in the disputed domain name. Further, the Panel found that Complainant did not sustain its burden of proof of bad faith registration. Therefore, the Panel declined to transfer the disputed domain name. Carpenter v. Foresight.com, FA 1319483 (Nat. Arb. Forum June 2, 2010).

The Office of the Kings County District Attorney v. Dom Altam

Complainant, The Office of the Kings County District Attorney, successfully brought this UDRP action against Respondent, Dom Altam, for the <brooklynda.com> domain name. Complainant argued that it was commonly and extensively known by the BROOKLYN DA mark as reference to the Brooklyn District Attorney's Office. Complainant argued that Respondent was using the disputed domain name to provide narrative about the structure of the Brooklyn District Attorney's Office and ultimately contained adult-oriented and indecent images. Respondent alleged that the disputed domain name was being used as a criticism or commentary website, and that no Internet user would be confused as to the websites affiliation. The Panel found that Complainant did have rights in its BROOKLYN DA mark, and that Respondent did not have rights or legitimate interests in the disputed domain name. The Panel further found that Respondent's use of the disputed domain name to offer opinion and satirical information about Complainant as well as adult-oriented content was evidence of registration and use in bad faith. Therefore, the Panel transferred the disputed domain name to Complainant. Office of the Kings County Dist. Attorney v. Altam, FA 1313554 (Nat. Arb. Forum Apr. 30, 2010).

Insight Health Corp. d/b/a Insight Imaging v. Jerry Grigoropoulos

Complainant, Insight Health Corp. d/b/a Insight Imaging, brought this UDRP action regarding Respondent's, Jerry Grigoropoulous's, registration and use of the <insightimaging.com> domain name. Complainant is a provider of diagnostic imaging and radiology services and alleged that Respondent was a competing provider of those same services. Complainant asserted that it had rights in its INSIGHT mark dating back to September 2001 and rights in its INSIGHT IMAGING mark dating back to December 2006. Respondent registered the disputed domain name in September 2006. The Panel held that the disputed domain name was comprised of entirely common and generic terms and could not be found to be confusingly similar to Complainant's mark. The Panel additionally found that the addition of the term "imaging" sufficiently mitigated any confusing similarity between Respondent's disputed domain name and Complainant's INSIGHT mark. Therefore, the Panel declined to transfer the disputed domain name to Complainant. Insight Imaging v. Grigoropoulos, FA 1318563 (Nat. Arb. Forum June 2, 2010).

Steinway, Inc. v. Carey Simon

Complainant, Steinway, Inc., brought a UDRP claim against Respondent, Carey Simon, for the <american-steinway.com> domain name. Respondent asserted that its business partner had been in the business of buying, restoring, and reselling Steinway pianos for more than 35 years and that the disputed domain name was used in connection with the offering of those services. Respondent claimed that neither Respondent nor his business partner ever had any affiliation with Complainant and displayed a disclaimer stating such on the resolving website. The Panel found that Respondent and its business partner were making a bona fide offering of goods and services because of its offering of restored Steinway pianos through the disputed domain name. The Panel further found that as a reseller of goods, Respondent had a right to incorporate a manufacturer's mark in an offering of goods and services where Respondent acutally offered the services, Respondent only used the site to offer those services, Respondent's website accurately revealed the the lack of affiliation with Complainant, and Respondent was not trying to corner the market on all relevant domain names to deprive Complainant of use of its mark. Therefore, the Panel declined to transfer the disputed domain name to Complainant. Steinway v. Simon, FA 1318229 (Nat. Arb. Forum June 2, 2010).

Parfums Christian Dior S.A. v. Spa Dior

Complainant, Parfums Christian Dior S.A., brought a UDRP claim against Respondent, Spa Dior, with regard to the <spadior.com> and <spa-dior.com> domain names. Respondent asserted that prior to its registration of the disputed domain names, Respondent operated spa services under the name "Spa Di'Or." In the UDRP proceeding, Complainant conceded that, after lengthy settlement negotiations between the parties, Respondent was still entitled to use and conduct spa operations under the business name "Spa Di'Oro." Respondent contended that the apostrophe in its business name could not be duplicated in a domain name. The Panel found that an apostrophe also does not affect pronunciation of the business name itself. Thus, the Panel found that Respondent was using the disputed domain names in furtherance of legitimate spa offerings prior to these proceedings. Therefore, the Panel declined to transfer the disputed domain name from Respondent to Complainant. Dior v. Spa Dior FA 1316366 (Nat. Arb. Forum May 20, 2010).


E-PRACTICE

Clouds Across the Web

To the non-tech-savvy, a cloud is a visible mass of water droplets that drift across the sky. This term takes on a whole new meaning to the tech-savvy, however, and is becoming part of technology businesses' every day vocabulary. Online "clouds" have been around for years, offering an online storage space so that files can be accessed from anywhere and from any computer. At its first conception, cloud storage was limited to file and data storage, accessible by computers with internet access. A decade or more later, clouds now encompass more than just storage. For example, Box.net began with both file storage and file sharing, helping small businesses create a virtual office; today it offers the same services combined with online collaboration. Microsoft's Live Mesh started out as purely online storage and today offers syncing and sharing, with access from both computers and smart phones. Apple's MobileMe offers real-time syncing beyond file storage; it syncs files, email, calendar, contacts, and photos between computers, smart phones, and other Apple gadgets. Dropbox is another example of an online file storage service that now offers synchronization and sharing across platforms and devices. Cost of this convenience varies from company to company and also depends on access levels: some services are free, some are free for a specified amount of storage before charging for additional storage; full-service cloud systems (such as MobileMe) are charged as a yearly package. As clouds begin to move out of the tech-savvy world and into the everyday world, prices are dropping; rumors abound that even Apple may stop charging fees in order to compete with Google.

Although individuals have been quick to utilize the various cloud services, businesses have traditionally kept to network drives and VPN/remote log-ins. Many large companies are anxious about data failures and slow delivery of data over a network. Alternatively, government agencies have moved many data operations to clouds, but by creating their own clouds rather than purchasing space from commercial providers. The CIA believes the cloud approach makes IT environments more flexible and secure, but maintains tight security by building an internal cloud. The Pentagon offers its online cloud computing platform, Rapid Access Computing Environment (RACE), to military personnel, where the focus of the service is security with mobility. On the other hand, NASA is utilizing commercial cloud providers with its Jet Propulsion Lab experiments; it uses three providers (Amazon, Microsoft, and Google) to avoid committing to a single company.

Cloud technology has expanded, and today's businesses across the United States and around the world are looking into the concept of "private clouds," which allow individual companies to create specialized online data centers. While individuals should be cautious with what public cloud they utilize and what information they put into the cloud, private and semi-private clouds offer security parameters and service guarantees. In the world of small business, a two owner boutique can sign up for a cloud service and save the cost of hiring an IT staff; it cuts the cost of purchasing hardware and cuts future costs of increasing hard drive space and updating systems. The ability for cloud computing technology to "link billions of computers and cell phones into seamless information networks" is attractive to companies facing budget reductions in the economic downturn, allowing cuts to data center operating costs.

As more businesses see the benefit to utilizing cloud computing in both production and cost, providers are elbowing each other to be at the top of the business-provider list. Amazon, Google, AT&T, Apple, and Microsoft are big names fighting to offer both user-friendly and cost-effective tools to large corporations and small businesses, with smaller providers such as Rackspace and Terremark vying for market space. A provider that doesn't get household name recognition but regularly appears in Forbes magazine, EMC Corporation, is preparing to launch the latest component of its private cloud services which allow a company to store large amounts of information at multiple data centers, but manage them as a single information warehouse. This service will allow multiple physical devices at multiple addresses to act as one system, which is attractive to large companies with multiple existing data centers.

The change from traditional data centers to cloud computing is easier (and often more obvious) for new companies; for companies that already have a traditional system the change will likely be a longer process. Even so, it appears to be a matter of time rather than preference before even the non-tech-savvy know the other definition of a cloud.

Virtual Tug-of-War

Online social networking sites, such as Facebook and Twitter, may seem benign to the average Internet user. However, users of social networking sites have begun to experience how the online information located on the websites can have real-world legal impact. In Kalamazoo, Michigan, one Facebook user was sued by a local business after he created a group to express displeasure with the business. Other examples include subpoenas on Facebook and MySpace account information going back over two years and a subpoena of Twitter information in a sentencing hearing. Corporations, insurance companies, and parties in divorces or employment disputes are making use of subpoenas to access details of user's online activities. Since the account information is stored on an online "cloud" consisting of the company's servers, the company owns the data and, therefore, the right to share it.

Many individuals and groups have continued to ask Congress to change laws that would affect online privacy. In December 2009, nearly a dozen privacy groups joined to file a Federal Trade Commission complaint against Facebook's privacy changes, stating that the changes violated federal consumer protection law. The executive director of Privacy Activism is concerned that Facebook's privacy changes are made without thinking through to the repercussions. Microsoft is taking a different tact, calling for Congress to update the Electronic Communications Privacy Act and the 1986 Computer Fraud and Abuse Act. Representative Rich Boucher (D - VA) released a draft privacy bill in May that will require "opt-in access to sensitive online data, an expectation of privacy regarding third-party apps, and easily accessible privacy practices."

In contrast, some online service sites are taking a different approach. Rather than claim it is not providing user data to advertisers, Mint.com is offering a trade of data to the consumer. When the site users reveal their personal financial data to the site, Mint.com in return offers discounts from third-parties based on where the user is spending their money (for instance, buying a new swimsuit might lead to a discount offer for sunglasses from an advertiser). Unlike the consumer outcry over Facebook privacy settings and information sharing, Mint.com users enjoy the transparency that the site provides (advertisements state if the site is getting a referral fee from the third-party). WeShop, a site that lets consumers track and share their shopping history with other users, then allows retailers to target offers to the site's users (similar to Mint.com, it could send offers for formal dresses to a user that recently purchased a prom related item).

Less than a century ago, protecting personal privacy started with the simple steps of locking the file cabinet or desk drawer and drawing the living room curtains at night. In today's high-speed World Wide Web, protecting personal privacy is a far cry from "simple." As the dust begins to settle, the virtual tug-of-war over online privacy seems to be more and more about consumer control over who gets what information, rather than a desire to keep personal information private across the board.


IN THE NEWS

Arabic Domain Names: The First Non-Latin Internet Domain Names

On May 6, 2010, domain names in Arabic were activated for Egypt, Saudi Arabia, and the United Arab Emirates. This is the first time domain names using entirely non-Latin characters have been available. Websites previously had to end with ".com" or another generic top-level domain that used Latin characters. Registration for websites containing the new Arabic domain names will begin soon. Link to full story

ICANN Hires Cryptographer

The Internet Corporation for Assigned Names and Numbers ("ICANN") hired noted cryptographer Whitfield 'Whit' Diffie to serve as its vice president for information security and cryptography. Diffie will advise ICANN on security matters and supervise the "design, development and implementation of security methods for ICANN-managed networks." Diffie is a co-inventor of the Diffie-Hellman key exchange. Link to full story

Are We Running Out of IP Addresses?

While in recent years the Internet has seemed to grow exponentially, within 18 months the number of available IP addresses that allow Internet access for PCs, smart phones, and even cars and gaming systems will begin to seriously decline. This limit on the number of available IP addresses will not affect the functioning of the Internet but will limit entry of new devices. The Internet currently uses Internet Protocol Addressing Scheme version 4 (IPv4), which initially provided four billion addresses. When the last large group of IP addresses is issued in September 2011, no more IP addresses will be available until the transition is made to IPv4's replacement, IPv6. IPv6 is the solution to the Internet crunch problem but slow technology adaptation could prevent IPv6 from being the solution it is ready to be. Big Internet companies like Google and YouTube are ready for the transition, but for smaller business that are moving more slowly toward the change, the eventual adaption to IPv6 will prove to be more costly. Link to full story

The New Phishing Scheme: Tabnapping

A new phishing technique called "tabnapping" or "tabjacking" uses morphing browser tabs to deceive Internet users into providing their private login information. The attack capitalizes on users' inattention while surfing the Web and works when an Internet user switches from one browser tab to another. According to the researcher who published proof-of-concept code for this new technique, "tabnapping" works in Firefox, Internet Explorer, and Google Chrome. Link to full story

New Changes for Firefox 4.0

Although Mozilla had planned for the next Firefox update to be version 3.7, the company announced it will continue to improve the browser and release it as version 4.0 instead. Mozilla, having already released details about Firefox 4.0, publicizes its software plans more than many other software developers in an effort to hear from consumers and generate support for Firefox's future release. Among the improvements in version 4.0 are a simpler default theme, fewer navigation controls, improved speed as a result of fewer pixels on each page, the option to store passwords and settings for frequently visited websites, greater personalization and developer tools, stronger security, and the ability to install add-ons without a required restart. Firefox 4.0 will be built for HTML5, the emerging future language for web coding. Although Mozilla plans to release version 4.0 in October or November of 2010, the date is primarily a milestone target: Firefox 4.0 will not be released until it is completely ready. Link to full story

Soldiers Threatened By Credit Union Scam

During the last half of 2009, the Anti-Phishing Working Group found over 126,000 phishing scams. One of the latest phishing scams to be discovered involves fake websites passing themselves off as two credit unions catering to servicemen and their families: the USAA (an insurance and financial services firm) and the Navy Federal Credit Union. The phishing sites steal users' personal and banking information when the websites prompt users to enter the data to unlock log-in errors. After the data has been collected, the users are redirected to the credit unions' actual websites. In an effort to alert soldiers banking with these institutions to the potential security risk, U.S. Strategic Command officials have partnered with security software companies to publicize and correct the situation. Link to full story


PROCEDURAL UPDATES

The National Arbitration Forum is making some minor updates to its Supplemental Rules. Check out the updated Supplemental Rules, which will be effective July 1, 2010, on our website.


UPCOMING EVENTS

June 20-25, 2010

ICANN
Brussels, Belgium

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DOMAIN NAME DISPUTE INFORMATION

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Note: The information found in this newsletter is designed to provide accurate and authoritative information regarding the subject covered, but is not intended as legal advice.