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Mishkoff Does Not Fit the Profile of a Cybersquatter

I intend to testify that Henry Mishkoff does not conform to the pattern of a cybersquatter. I am, alas, an expert on cybersquatting. In the course of preparing our database for the Markle Foundation-supported UDRP Tracking Project, I was forced to read, analyze and classify literally thousands of domain name trademark disputes. It was not a pleasant experience. My experience as a domain name dispute arbitrator for the World Intellectual Property Organization has also contributed to this experience. I know who the world's top cybersquatters are, which trademarks are most commonly targeted by them, and can identify the three or four basic methods and strategies they use. I know what arguments and tactics they use in cases, and the techniques they use to try to conceal or disguise their intent. I know who makes money at it and who does not, and why.

Henry Mishkoff does not fit a recognizable profile of a cybersquatter. To begin with, your garden-variety cybersquatter does not develop an elaborate web site. In almost all cases, they register the name only and do nothing with it. In a few cases, in a feeble attempt to gain legitimacy after being challenged, they may throw up a one-page web site. This approach is the economically rational thing for a pure domain name speculator to do. If your plan is to make money by trading on the domain, it makes no sense whatsoever to waste resources developing and hosting content. The most common pattern is simply to register the name, sit on it, and then either contact the trademark holder or wait for the trademark holder to contact you. This type of cybersquatter usually registers hundreds if not thousands of domain names, many of them corresponding to trademarks. When contact occurs, a negotiation over the price ensues.

Mishkoff deviated from the pattern in a number of ways. He did not register large quantities of domain names. He did develop his own content. When contacted, he did not immediately express an interest in selling the name. Cybersquatters often use false contact information in their WHOIS record of domain name registration, in order to conceal their identity and place of residence from lawyers and law enforcement. Mishkoff did not do this. Mishkoff registered only a few domains, all of them generic (such as <evenday.com>, <multiweb.com> and <familyonline.com>) and related to his own business ideas. It is an undisputed fact that the <shopsatwillowbend.com> domain is the only trademark-related domain he registered before becoming irate and registering the "sucks" domains. The plaintiff's portrayal of him as a cybersquatter rests on extremely thin ice.

There are some types of cybersquatters who do develop content. These fall into two categories: 1) those who link trademarked names to porn sites in order to blackmail and extort the trademark owner, and 2) typo-squatters, that is, those who register domain names that are only a few characters different from famous trademarks to catch sloppy Internet typers and subject them to a parade of advertisements. These ads generate revenue for the typosquatter on a click-through basis. Mishkoff does not fit either pattern. While his site contained a link to his own home page and an unpaid ad for his girlfriend's activities, he was not in the business of selling web-based advertising to third parties. Nor did he get compensated for generating hits to other websites. Moreover, for misdirection to be a profitable business method, the typosquatter must register and use lots of domain names. An isolated domain name simply won't attract enough traffic, and a purely local brand is not the domain of choice. The famous typosquatter John Zuccarini, for example, registered hundreds of domain names, all of them slight misspellings of globally famous trademarks. Moreover, since the plaintiff itself clearly prefers the much shorter and easier to type <shopwillowbend.com> over the cumbersome and infrequently used (no longer functional?) <theshopsatwillowbend.com>, the alleged similarity between the offending domain and the plaintiff's domain is not so great.

I am amused by the plaintiff's suggestion that Mishkoff's acceptance of the proposed settlement sum of $1,000 constitutes evidence of domain name speculation and cybersquatting. If all the world's cybersquatters spent as much time developing and hosting web content as Mishkoff and then relinquished their domains for a mere $1,000, the world would be a better place - because cybersquatters would lose money and cease their practice. In assessing Mishkoff's costs, it is patently wrong to look only at the $70 he spent on registering the name. An active website must be name served (anywhere from $30/year and much more if he bought and configured his own DNS server and software) and hosted ($250 a year or so, and again more if he used his own equipment and bandwidth). If Mishkoff spent only eight hours designing, writing, loading and modifying the content, then, at the $100/hour he commands as a consultant, his costs after only a year of publishing the web site would easily exceed the $1,000 sum. There is no return on investment here. This in my judgment constitutes strong circumstantial evidence that acceptance of the settlement offer was motivated by a desire to recoup costs and end the dispute. Whatever Mishkoff's motives, it does not correspond to the typical patterns of commercial cybersquatting.

Next: Terms of Service as Expert in This Case

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