Legal protection of a domain name in the USA

As organizations continue to increase their online presence in the USA, so too grows the importance of legal protection of their respective domain names. Often made up of an organization’s name, product, or service, domain names are an important gateway for traffic. The main regulators in charge of overseeing the use of the internet’s domain names is the Internet Corporation for Assigned Names and Numbers (ICANN) (HG.org, n.d.). While there are numerous domain name registrars, those who hold the rights to provide domain names must ultimately be connected with the ICANN.

As the internet has grown, so too have the legal frameworks surrounding it and domain name protection. While there were some frameworks in the early 1990s, it was not until the enacting of the Anticybersquatting Consumer Protection Act (ACPA) in 1999 that entities had strong legal recourse for those holding domain names ransom. With the passing of the ACPA and the dispute resolution frameworks of the ICANN, internet users have enjoyed increasing protections over time.

Today, these protections have continued developing with the Truth in Domains Act (TDNA) of 2003 and the Combating Online Infringement and Counterfeits Act of 2010 (Wikipedia, 2016 Domain Name).

How Domain Names Work

Before considering the various legal protections for domain names, it’s crucial to understand how domain names actually work and their history. Not only is it important to realize who actually controls how domain names are distributed (the ICANN), but the mechanisms for checking domains and leasing ownership (HG.org, n.d.).

A Brief History of Domain Names

The first domain name to be used by a commercial entity was by a computer systems company on 15 March 1985. This was also the first time that the .com, indicating the domain was for commercial purposes, domain registry was used. Thirty years later, the use of the com domain ballooned to 294 million registered domains. As of the end of March 2019, there were 351.8 million domain registrations across all top-level domains (TLDs). Average year on year growth in domain names is approximately 18 million, a 5.4% growth per year. The two most common domain names remain .com and .net, with the former reaching a total number of registered domains in March 2019 of 141.0 million, and the latter 13.8 million (VeriSign 2019).

Breaking Down Domain Names

Once boiled down, domain names are very basic. Any domain is split into two parts: the secondary level domain (SLD) and the top-level domain (TLD). The SLD is anything after the www or the http:// but before the com or any other suffix you may be using. The TLD is the other major part of the domain name, the com, org, net, etc. So, if you take http://www.example.com, then “example” is the SLD and the “.com” is the TLD. Though from a legal standpoint the SLD will be much more important, the TLD is still extremely important (American Bar Association).

Since the com TLD is currently one of the most popular and highly desired, trying to combine it with a particular SLD can be a challenge. In such cases, the best recourse is to use the WHOIS protocol. WHOIS is the largest source for identifying domain name registrars. So, if you’re looking to purchase a domain name or want to see if it is already taken, WHOIS will already provide you with the domain registrar name, the expiry date, and possible alternatives using various SLDs and TLDs. In this sense, if domain names were real estate property, then WHOIS would be the trip to the town hall to check the deed of ownership (WHOIS).

Legal Parties of Domain Names

Though in most cases, domain registrars are the true owners of domain names, and most organizations only lease or license the name, there are still legal protections to keep these names safe. This means that there are several relationships and aspects of domain name ownership that need to be considered in the legal protection of domains. These include the relationship of the domain registrar and the licensee (domain “owner”) and the domain owner and those looking to infringe upon or purposefully use similar domain names. Nonetheless, there are numerous mechanisms in the United States that form the framework for protecting domain names including the Federal Trademark Dilution Act (FTDA) of 1995, ACPA, the Truth in Domain Names Act, and the Special 301 Report.

Who Owns a Domain

A fundamental aspect of law concerns ownership and identity, and this is no different with domain names. Though many organizations maintain an exclusive right over the use of a domain name, this is usually only ever leased by a domain registrar. This is the first area where legal protections of domain names become important. The parties involved in this transaction are:

• Contact or domain name registrant, this is usually divided into Administrative, Billing, and Technical Contacts. This is the person or entity that leases the right of owning a domain name
• Domain registrar, which is the body selling the rights to a domain name
• ICANN, who are responsible for accrediting domain registrars. Accredited registrars and domain registration information can be checked with the InterNIC website (Wikipedia 2016 Domain; HG.org).

These major parties are usually the most involved in domain ownership and registration, but there is also a large domain aftermarket, which can add extra layers between these different parties.

Can Someone Else Take My Domain?

It is all too easy to find that someone on the internet has either already taken or is using a domain name that is purposefully similar to yours. It is not possible for someone to steal your SLD and TLD domain name, unless the domain registrar has not been paid. Often, this situation takes the form of someone using a variation of your domain, using alternative TLDs such as net instead of com, or even using various typos or misspellings. There’s even a name for people who do this, which is “typosquatting” or “cyberpiracy” (Wikipedia 2016 Domain). In this situation, there are two options, dispute settlement via the ICANN or legal action.