CYBERSQUATTERS ARE GETTING SMARTER

4 April 2008

Brand pirates focusing more on less visible directory tactics


The "Catchusifyoucan.com" cyber crooks have devised new techniques to avoid brand defence actions, reports the Las Vegas Business Press in an interesting article on brand piracy this week.

Intellectual property lawyer David LeGrand summed up the state of online disputes by saying that cybersquatters were getting smarter and more difficult to detect. But lawsuits over domain names are increasing, he said, although like the Internet itself, the infringers are evolving and becoming more sophisticated.

Another specialist in the field, Greenberg Traurig attorney Ron Green has been busy pursuing typosquatters, companies that own domain names that are misspellings of famous websites.

He revealed that deliberate misspellings, or name variations, are becoming more common as available domain names vanish. And while many cybersquatters are still setting up typical online casino web sites, an increasing number are now using their controversial domain names for less-visible "directories."

Money, not public service, is driving these information-driven sites, plaintiff's lawyers charge. The revenue stream for directory sites is harder to trace, and the site's purpose is not so blatantly commercial, explained John Krieger, a lawyer with the Las Vegas office of Lewis and Roca.

A directory site usually derives "click-through revenue," which is based on users clicking on linked sites and ads. "There are a lot of them," he said of directory site cases.

The passage in 1999 of the Anti-Cybersquatting Consumer Protection Act stemmed the tide of overall domain name infringements for a short time, lawyers say. However, "....it seems like in the past two years, it has been picking up again," Krieger said.

Directory websites are likely to be the next big thing in domain name disputes, said Andy Mayfield, a St. Louis-based intellectual property attorney with the law firm Armstrong Teasdale. "That really is a developing area," Mayfield said. Key to the popularity of directories is the difficulty of proving such sites are profitable, which is a needed element in proving bad faith intent.

"Is it a commercial (use) case or not?" he said. "I think it is because the revenue is based on the number of hits placed through the site."

Plaintiffs' lawyers' opinions don't always carry the day in court, however, Mayfield added. "Is it harder to prove cut-and-dried competition? Yes."

David LeGrand, a director with the Fennemore Craig law firm in Las Vegas, said he now sees fewer domain-name disputes involving pornographic and online gambling websites. "There are some of those left ... but that kind of case has been chewed through," he said.

The stragglers are more unfinished business, usually involving a plaintiff selling their business or finally obtaining the financial resources to sue, the lawyer explained. "The directory sites are a lot more challenging," LeGrand added.

Constitutional issues also come into play with directory sites, explained Mark Tratos, an intellectual property lawyer and instructor at UNLV's William S. Boyd School of Law.

"The ability to get any relief under the law is reduced because of the First Amendment, freedom of speech," he admitted.

An emerging trend in cyberlegal battles is "typosquatting," which is also generating lawsuits.

The practice of diverting traffic to websites by slightly changing the spelling of a more famous domain name has mostly gone under the radar, LV Business Press reports. Typosquatting is typically a civil matter, but was made a crime under the Protect Act in 2000, which is more commonly known as the "Amber Alert" legislation. Typosquatting was included in that law because pornographers often changed the spelling of common domain names to divert traffic to their sites.

Tracking down all the typosquatters isn't easy, said Ron Green, an attorney with Greenberg Traurig.

"With as many domain names (as) there are registered daily, it is hard to police all of them," he said. "I think typosquatting is a big problem for anybody who has been in business for a number of years."

Domain name fights don't show any sign of going away, he said. "As long as there is money to be made on the Internet, people will take the risk."

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