CYBERSQUATTING CHECKLIST:

Congress has recently passed a law called the Anti-cyber squatting Consumer Protection Act. How can and will this affect the Webmaster in his everyday business. Well we have all heard of where an enterprising Webmaster will register a well-known name or variation of such name and either place it for sale or use it to drive traffic to other sites. A well-known and infamous case is www.whitehouse.com. Now personally I think it was pretty ingenious and kind of humorous that this was registered and used as an adult site. I am sure that our former president logged on a time or two just for grins. Well we all know that corporations, big businesses and celebrities do not have senses of humor and do not take lightly to a Webmaster taking a name that they hold near and dear.

So soon after the cries of big business went through the halls of congress a law was soon to be passed. Our congress has come up with this Consumer protection act for anti-cyber squatting and it has many effects on the Webmaster.

Damages under the act are as follows:

In a case involving a violation of section 43(d)(1), the plaintiff may elect, at any time before final judgment is rendered by the trial court, to recover, instead of actual damages and profits, an award of statutory damages in the amount of not less than $100,000 and not more than $100,000 per domain name, as the court considers just.

The court may remit statutory damages in any case in which the court finds that an infringer believed and had reasonable grounds to believe that use of the domain name by the infringer was a fair or otherwise lawful use.''.

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The anti-cyber squatting consumer protection act amends the Trademark act of 1946 by adding an additional section to deal with these cyber pirates. The new provision in the act allows a trademark holder to sue persons who with “bad faith intent” to profit from a mark, registers, traffics in, or uses a domain name that, in the case of the domain name registration, is identical or confusingly similar to the registered mark. The act defines domain name and gives a definition to the term Internet.

Again the act provides guidance and defines the term bad faith and gives nine factors to be considered: If you do any of the following you may be in bad-faith (other factors not listed may apply) If you registered the name with the intent to do any of the following you may be subject to damages:

Bad Faith Checklist:	YES	NO
The trademark or other intellectual property rights of the person, if any, in the domain name
The extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person
The person's prior lawful use, if any, of the domain name in connection with the bona fide offering of any goods or services
The person's lawful noncommercial or fair use of the mark in a site
The person's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site
The person's offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services;
The person's provision of material and misleading false contact information when applying for the registration of the domain name or the person's intentional failure to maintain accurate contact information
The person's registration or acquisition of multiple domain names Which the person knows are identical or confusingly similar to trademarks or service marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous trademarks or service marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of such persons
The person's history of offering to transfer, sell, or otherwise assign domain names incorporating marks of others to the mark owners or any third party for consideration without having used, or having an intent to use, the domain names in the bona fide offering of any goods and services
The person's history of providing material and misleading false contact information when applying for the registration of other domain names which incorporate marks, or the person's history of using aliases in the registration of domain names which incorporate marks of others
The extent to which the trademark or service mark incorporated in the person's domain name registration is distinctive and famous within the meaning of subsection (c)(1) of section 43 of the Trademark Act of 1946 (15 U.S.C. 1125).

So if you have your mind set that you are to cyber-squat. You decide that you are going to register www.MaccDonalds.com or www.brittanyspeers.com and send all of that traffic to your top adult site or sell the name for big bucks you better slow down. If you have registered a great name here are some suggestion on how to keep the name:

Checklist:	YES	NO
Check if name is trademark or other intellectual property rights of the person
Do not use the legal name of another person unless is common or has common meaning
Are you bona fide offering of any goods or services not in violation of the trademark
The person's lawful noncommercial or fair use of the mark in a site
Do not register domain name misspellings of trademarked names with the sole intent to divert consumers from the mark owner's online location, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site. [Hard one to get around on misspelling]
Do not offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain
Do not use misleading false contact information when applying for the registration or maintance of the domain name
Do not register which you know are identical or confusingly similar to trademarks, service marks or celebrity names
If you have sold names or offered to in the past without having used the domain names in the bona fide offering of any goods and services…watch out