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Sex, ICANN, and Your Domain Name
|It's your domain, or so you say. One morning, you wake up to find that it's registered in someone else's name.
Can you prove it's yours? Can you get it back?
The sex.com story
One morning, Gary Kremen woke up to find that the domain name sex.com, which he'd registered in 1994, had changed hands and was registered to ex-convict Stephen Michael Cohen. In 1995, Cohen had allegedly written a fake letter with a forged signature to Network Solutions, the registrar. He stated in that letter that control of sex.com was to be turned over to him.
In 2000, the court found the letter to be fraudulent and ruled that sex.com was to be returned to Kremen. Cohen was ordered to pay $65 million in punitive damages and for lost revenue. He never paid it, however, fleeing the US instead.
The story continued with charges against Network Solutions for mismanagement of sex.com. A lower court ruled in 2000 that Network Solutions was not accountable for its negligence in handling the domain. A domain name was not tangible property, according to the judge. In 2003, the US Appeals Court ruled that Kremen did have property rights to the domain. The following year, Kremen reached a settlement with VeriSign, the owner of Network Solutions. While the amount was undisclosed, it was rumored to be over $15 million.
Domains and ICANN
It's doubtful that any other domain has the value of sex.com. Our domains are valuable to us, though, and we want them to be protected. If they are stolen, we don't want to spend years fighting to get them back.
ICANN (Internet Corporation for Assigned Names and Numbers) was created in 1998 to help manage domain names, among other responsibilities. At the ICANN website, we read that ICANN "…is dedicated to preserving the operational stability of the Internet…and to developing policy appropriate to its mission…."
Developed in 2004, ICANN's Registrar Transfer Dispute Resolution Policy (TDRP) provides detailed steps for registrars to follow if a domain transfer is disputed. Registrars aren't obligated to follow this policy, and it doesn't guarantee resolution to domain transfer disputes. However, it provides a suggested policy for registrars to help reach resolutions when domain disputes arise.
Domain theft and ICANN
What should you do if you discover that someone has hijacked your domain name?
First, contact the registrar where you had the domain registered. With evidence that you didn't authorize the domain to be transferred to another person, that registrar should take the necessary steps to try to return the domain to you.
Unfortunately, some registrars aren't inclined to make the effort to do this, particularly (but not necessarily) those with a lower profit margin per domain.
If the registrar for your domain won't take action on your behalf, go to the gaining registrar with your case. This registrar; the one where your domain is now registered; may or may not want to look into the situation, but you can try your luck with it.
According to ICANN's TDRP, registrars should "… first of all attempt to resolve the problem among the Registrars involved in the dispute…." If they aren't successful, they should then file a dispute with ICANN.
In this ICANN April 2005 report, the suggestion was made (on page 5) to make the dispute resolution process accessible to registrants. At this time, though, if neither registrar will work to help you or will take the issue to ICANN, the ICANN dispute resolution process isn't available to you.
Although ICANN's Uniform Domain Name Dispute Resolution Policy is intended for disputes over trademarked domains, some registrants have used it to try to get hijacked domains back. You can file a complaint via one of ICANN's Approved Providers for Uniform Domain Name Dispute Resolution Policy.
Domains and the courts
The legal route that sex.com registrant Gary Kremen took is open to you as well. Look for a lawyer in the country of the domain registrar who has experience handling domain name disputes.
At this point, you need to weigh the value of your domain with the costs involved in getting it back. The value of sex.com made the legal battle financially worthwhile for Kremen, but many of us would have to stop at this point.
Protecting your domain
Nothing you can do can guarantee that your domain won't be hijacked. However, you can take a number of precautions to greatly reduce the chances of it happening. For tips on protecting your domain, see the article Information Highwaymen and Your Domain here: http://articles.websitesource.com/information_highwaymen.shtml .
About the author:
Lois S. is a Technical Executive Writer for http://www.websitesource.com with experience in the website hosting industry.
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