It finally happened; your site is down and all your valuable traffic is going to a parking page or worse…the competition. Or maybe your loyal and new customers are reading the musings of your (now former) webmaster, partner, or some unidentified person listed in the Whois registry as residing in China, Russia, Idaho, or across town. Now what? Well if you’ve been reading this column since August 2007, you already know that you’re probably in a tight spot. If you have a few months or more to wait and several thousand dollars handy, then no troubles; your attorney will eventually get things under control. Otherwise, you’re going to need a resourceful law firm and luck to limit the long-term damage to your business.

             Once your unprotected domain is snatched, your options fall into three general categories: slow administrative litigation, probably slow court litigation or any informal avenues allowed by your specific facts. Anyone with (or even without) a claim can file a lawsuit and any trademark holder can file a UDRP. But your particular, alternative options come down to utilizing domestic and foreign assets to apply direct and indirect pressure to every relevant party you can identify.  Here is where experience, connections, reputation, creativity, resources and hard work make the difference.

            UDRP litigation is the single most commonly used method for recovering domains. Everyone knows it will take several months, at a minimum, to get a decision from the arbitrator, but that may not be a problem if you’re dealing with noncritical domains. Critical domains are more appropriately recovered by recourse to the other two options: court litigation and alternative, legal means. I’ve seen some very creative lawyers utilize state and federal law in both court systems to recover a domain very in a matter of days or weeks instead of months. But, given the right facts, one phone call to the right person with the right message can get a website up the same day. Not many experienced business people make the mistake of representing themselves in litigation, but many still fail to recognize that they rarely further their cause and more often hinder it when they act on their own to recover a hijacked domain name. For example, few people realize that threatening criminal prosecution is a crime itself.

            If you’ve been a domainer for any appreciable amount of time, you’ve certainly noticed the thriving UDRP legal market. Civil litigation over domains is much more limited, and I haven’t seen many ads vaunting the ability to recover hijacked domains quickly and cheaply. Obvious market forces are definitely at work here. Most attorneys prefer a simple administrative approach to a case, especially when the number of attorneys with high-tech litigation experience is still very limited and few of those have substantive trial experience. So clients expect that they will have to pay someone very well to litigate a domain dispute through the civil courts. But it is probably the tendency of clients to initially think they can eventually find their own resolution to a domain dispute that makes it so hard for attorneys to become involved early enough to take advantage of opportunities to force a fast resolution. We certainly know that clients would pay reasonably well to avoid each day of down time; the trick is to get the client to contact us early enough.   

            Of course, most litigation is brought to recover a domain or stop alleged mark infringement. But the flip side of all this is that a sharp lawyer can also help a domainer fight anyone trying to force the transfer of a domain. Instances of abuse are common and the natural tendency when dealing with intellectual property. As with real property, the law places primary responsibility for protecting intellectual property on the holder. Plenty of landowners build their fence on their neighbor’s land; so why expect different behavior for incorporeal property? Nevertheless, many domainers fall victim to improper threats from mark holders, particularly where the mark holder has a strong lobby. There is also a tendency for domainers to think that the ease of the Internet should carry over to other aspects of doing business; so they don’t take advantage of the legal assistance available to them, even after they start making a tidy profit.

            The current prevalence of varied and often half-baked approaches to maintaining control of domains while avoiding liability stemming from a domain portfolio demonstrates that there still aren’t enough knowledgeable and experienced attorneys being used to protect domainers. Probably most attorneys with domain experience have some ideas for limiting portfolio liability. But short of involving a law firm, I don’t know of a single approach that addresses all of the current risks to domainers. However, there are several different tested and novel approaches that can be combined to address most risks. The main distinguishing factor among them is the significance of legitimacy.  While the trend has been to go for the fast cash and not think about tomorrow, the good news is that this industry doesn’t stand still; so get your patents in now because innovation is inevitable.