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Dell Inc. is pursuing a major cybersquatting lawsuit against
several alleged defendants claiming that the alleged used numerous domain names
made up of slight misspellings of well-known trademarks. This method, known as
typosquatting, sees domainers register domains that surfers are likely to hit
if they misspell a common web site name. Users that misspell the address they
intended to load are then taken to non-affiliated sites filled with advertising
that generates pay-per-click commissions for the domain holders.
In addition to the cybersquatting allegations, Dell alleges
that there has been a cyclical practice of “tasting” domains, where the
domainers move a particular domain from registrar to registrar during an ICANN
sanctioned trial period. By moving the domains from registrar to registrar the
alleged infringers avoid ever having to pay for the domains.
Dell alleges that the domainers are infringing on their
trademarks and seeks relief under federal cybersquatting statutes. Dell also
seeks relief under several Florida
state statutes that deal with falsity and deception. More interestingly, Dell
is alleging that the practices violate an anti-counterfeiting statute, 15 USC
1114, and seeks statutory damages of up to $1 million per violation under 15
USC 1117.
The anti-counterfeiting claim is one that is not typically
alleged in cybersquatting cases. However, it is a unique claim that has a
serious chance of success. 15 USC 1114 prohibits:
use in commerce any reproduction, counterfeit, copy, or
colorable imitation of a registered mark in connection with the sale, offering
for sale, distribution, or advertising of any goods or services on or in
connection with which such use is likely to cause confusion, or to cause
mistake, or to deceive;
Dell’s allegations as to the defendants seem to comfortably
fall within the purview of the statute Dell maintains that the various domains
would not have been registered but for the use of its name, which is designed
to lure consumers seeking Dell products and services to the misspelled domain
name. Of course, any domain name that did not contain a Dell trademark would be
equally exempt from the statute.
Dell’s attempts to apply anti-counterfeiting laws to domain
name disputes may be a new idea, but it is an idea that has some teeth. If the
court agrees with Dell that the statutes should apply, it would be a
substantial boon to trademark holders and a serious blow to domain name prospectors.
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