WIPO: Willful Blindness Of Automated Domain Registrations IS Bad Faith

Emerging policy of WIPO to deal with computerized bulk domain registrations

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Snippet from ManagingIP.com [managingip.com] online magazine, referencing a source from INTA.org:

Wilbers also mentioned that the Center is close to releasing a new version of its bible for panelists: the Overview of WIPO Panel Views on Selected UDRP Questions. The new "2.0" version will include topics that have emerged in recent years, such as whether domainers who design computer programs to register domains automatically are guilty of bad faith registration and use—a key part of the Policy. "The answer is yes they are guilty," said Wilbers. "It is a form of willful blindness." The new Overview is likely to be published within the next few months.

To a degree this policy arrives "a little late to the game" since the practice of domain tasting, i.e., automated registration at its worst has, to my understanding/observation, been cut back significantly.

I have often thought that similar logic ought to apply to the practice of certain domain parking companies who, for years, routinely allowed, monetized and profited from the parking of trademark infringing domains.

The parking company's rationale for allowing the practice to persist? It goes/went something like this: ~"We must use software to detect infringing domains because we just can't be expected to visually scan or otherwise assess these long lists of domains being added to our system." (Probably, long lists generated by . . machine registrations . . )

No, of course not. Having to pay intelligent humans to scan the lists of submitted domains would . . eat into profits . . .

Hat tip to Mike Berkens of TheDomains.com for bringing this news/info to my attention.

[jmccormac]

To a degree this policy arrives "a little late to the game" since the practice of domain tasting, i.e., automated registration at its worst has, to my understanding/observation, been cut back significantly.

It has. The extreme oscillations of 2007 or so in com and net have been smoothed out now and the pattern effectively collapsed with ICANN's action against tasting.

I have often thought that similar logic ought to apply to the practice of certain domain parking companies who, for years, routinely allowed, monetized and profited from the parking of trademark infringing domains.

What worries me about this is that it is almost introducing an element of due diligence testing by stealth. Perhaps this guy wants to impose such a requirement on a registrant to determine if there are any existing rights or trademarks that could affect their registrations.

The parking company's rationale for allowing the practice to persist? It goes/went something like this: ~"We must use software to detect infringing domains because we just can't be expected to visually scan or otherwise assess these long lists of domains being added to our system." (Probably, long lists generated by . . machine registrations . . )

It would involve checking the domains against a database of trademarks and rights. It is not exactly impossible to do but it is just that it is so completely hairbrained because the jurisdictions have not been defined. The flakey deposit type trademarks used in the .eu Sunrise fiasco is a classic example of what can go wrong with such a general solution.

Just on the stats I do at the beginning of each month, only 35,521 domains had the same name registered across com net org biz info mobi asia tel. The figure for com net org biz info was 649,933. The big global brands tend to register domains across TLDs and the nameservers for these domains are identical.

In my opinion (not as a lawyer), he has a poor understanding of domain tasting and the automated processes that are (were) used to register domains. One of the clear patterns in domain tasting was the similarity of tasted domains to existing trademark type domains. The Dell case was a good example of this targeting aspect of domain tasting. This is quite a difference from the 'willful blindness' argument in that it showed a very clear intent to profit from infringing these rights. The problem was at its peak in 2007 and the 2010 market is a completely different one.

Regards...jmcc

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It would involve checking the domains against a database of trademarks

Not so. For years I've seen an endless supply freshly minted famous mark squatting registrations - ones than any adult U.S. citizen (who isn't cave-bound) could EASILY "flag" on sight - pointed to a certain parking company's servers. Usually such "squats" were registered in bulk, making the task of picking them out from the daily lists even easier. Since no one has a "right to park domains" all it would require would be for the parking company to say "Sorry, but we're not interested in these" . . . before allowing them to ever go live.

I'm still waiting for some industrious law firm to drive a spike into the craven heart of parking firms who contributed to giving domaining a bad name by allowing the monetization of cybersquatted famous mark domains. Since there's a 6 year statute of limitations for economic wrongs in some States there's still time . .