Domain name ownership disputes can be fascinating or even humorous for the casual observer and thoroughly aggravating, not to mention costly, for the victims involved. Despite what you might think (because you rarely hear or read about them) domain name ownership disputes are far more common than you might think. So the more you know, the better prepared you’ll be when it happens to you. There are several ways you can try to avoid getting caught up in a domain ownership dispute, and most of them work to some degree. But no matter what you do to avoid it, you will eventually find yourself rechecking your website asking, “When did I authorize the upload of that content?” Or you may find yourself rereading a legal letter on expensive paper from a lawyer explaining how you’re going to put their kids through college…starting with a good private prep school.

We’re going to cover this topic starting with the initial question “What is a domain name?” Then we’ll move to the more advanced “Should I litigate or arbitrate?” And well end with probably the most relevant question, “How do I get my website back up before I lose all of my customers!?” In fact, there are so many different ways for domain disputes to arise that it would take a book to do more than just scratch the surface. But we’ll definitely hit the high points over the next few editions, and hopefully some of you will find time to write me about your own experiences and possibly get recognized for your own creative thinking. After all, isn’t creative thinking is what got us into this industry in the first place? How many domainers do you know that are willing to stand in line?

So what is a domain name anyway? This continues to be a hot topic in the state and federal courts because there still isn’t a federal statute or universal, binding policy classifying domain names. Technology is a sprinter and the law is a marathoner. Anyone not convinced should do a little research on how states collect sales tax on Internet sales. Lacking any guidance from Congress or the state legislatures, the federal courts have had a little fun with this question and, depending on what state you live in, your domain names are equivalent to stock certificates, trademarks, telephone numbers or possibly even a service with no corresponding ownership rights. This last one may be the reason some domain registrars claim, in their terms of service agreement, to own all domains registered through them. But despite the fact that people have “owned” domain names since the last century and some of them routinely sell for millions of dollars, the legal status of a domain name is still not definitively resolve, in fact we aren’t even close to an answer. The reason is simple. Ever since ICANN came out with the Uniform Dispute Resolution Process in December 1999, the courts stopped getting most of these cases.

Today, instead of having the courts busy fully developing and deciding the various nagging questions of domain ownership, most of these disputes go to arbitration. Arbitration is almost as novel a concept as the Internet itself, which leads to another new development—i.e., the blind leading the biased. And by this I mean that arbitrators have traditionally (and I use that term lightly) been retired judges and experts in their filed. But today we have respected and other personages deciding issues and answering questions relating to an industry that is so new that the arbitrator can’t refer to their past trials or case law. So instead they do just about whatever they want, which usually means what makes the most money. This free hand has led to disgruntled accusations such as the claim that the UDRP process was only set up to help trademark holders get domains more easily and cheaply. I haven’t done a study, but complainants do get to pick the forum and they may be more likely to file their expensive case with an organization they believe favors trademark holders. But despite being paranoid by profession, I am convinced that the UDRP process was created by people with good intentions. They simply lacked the trial and administrative law experience needed to realize that arbitrators don’t make legal precedent and, without a solid body past case law to refer to, the market forces in the arbitration industry are naturally going to result in forum shopping by factions willing to pay more for better odds.

This all means that for almost a decade the law regarding domain names has developed at a snail’s pace while international arbitration bodies (and to be fair law firms, too) have come up with ever more creative ways to draw in as much of the domain dispute resolution business as their dockets and schedules can hold. As anyone could predict, market competition controls or at least influences everything from prices and speed of service to the statistical likelihood that one faction will prevail over the other. This last tendency gives rise to what is commonly referred to as “forum shopping,” which is very much frowned upon by the courts but a driving force in the for-profit arbitration industry. Of course, anyone about to pay $1,000 or more to register a domain dispute with an arbitration organization and another $2,000 or more for their attorney to handle the case would be foolish not to calculate which of the various arbitration organization authorized by ICANN are going to give them the best odds. In fact, trademark holders have become so brazen that we now have the term reverse domain hijacking.  But any business person would make the same calculations before they invest their money, whether they’re simply fending off a challenge for a domain or trying to recover one. To be fair, administrative forums do lend themselves to the same gamesmanship found in the courts. And more than one claim has been brought as an attempt to entice the other party to bring a claim in the same forum, instead of in a forum that would give them better odds.

Finally, there is a bright side. Both the oldest and the newest major players in the industry are working diligently to make the industry predictable (knowledge = power = money, or in other words predicting industry developments = more control over the industry = happy shareholders). And in order to have predictability you eventually do have to get some questions answer. So there are some things that we do know about domain names. For example, we know that ICANN requires domain registries and registrars to treat a domain’s WHOIS registrant as the domain’s owner. This means that ICANN considers the registrant to have civil liability for use of the domain, but you can not trust that a domain’s registrant really owns that domain. You can also find out how the courts of your or your registrar’s state classify a domain name, and you only have to read your registrar’s Terms of Service (once you find them) to know if they are protecting your property rights or consider your domain to be a service provided by their system, which they solely own. We know that it only costs one year’s registration to move your domain to a registrar that believes your domain is something you own, regardless of what it is. We also know that there are numerous, varied services available online to make almost every aspect of domain ownership safer, whether you’re buying, selling, licensing, developing, safeguarding, recording, lustrating or recovering a domain name.