Harvard Business School professor Benjamin Edelman has filed a class action lawsuit to fight the widespread trademark infringement called “typosquatting.” Typosquatting is the practice of registering domains that are very similar to the domain name of popular businesses, often purchasing domains that are common misspellings of the proper website. For example, a typosquatter may buy the domain www.freeecreditreport.com (with an extra “e” in the name) hoping that Internet users looking for www.freecreditreport.com will misspell the URL and end up at the squatter’s site instead of the intended website. The typosquatter’s website typically has several advertisements, often including an advertisement and link to the proper Free Credit Report website. The typosquatter profits if the user clicks on any links (i.e. advertisements) through his illegal website. This includes profiting from a user who clicks on the link to the proper Free Credit Report website, where the user intended to go all along. Free Credit Report must then pay the typosquatter for directing the Internet user to the website he or she requested by name.
Edelman has been studying typosquatting for several years and recently published a study with McAfee in which they found more than 80,000 domains typosquatting on the top 2,000 websites. The top ten websites targeted by typosquatters were freecreditreport.com, cartoonnetwork.com, youtube.com, craigslist.org, blogspot.com, clubpenguin.com, wikipedia.com, runescape.com, miniclip.com, and bankofamerica.com. Typosquatters often register domains with common misspellings of popular websites, they omit the period between “www” and the domain name, or they add “http” prefixes to catch users’ errors and to profit from those errors.
Typosquatting is illegal in the United States under the 1999 Anti-cybersquatting Consumer Protection Act, 15 U.S.C. sec. 1125(d) which, among other things, prohibits registering or using domain names that are confusingly similar to a trademark or famous name. So why would companies pay these typosquatters to redirect users to their proper websites? Typosquatters work with ad networks like Google who recruit advertisers such as Free Credit Report. Then when someone clicks on a Google-supplied ad on a typosquatting site, Google and the typosquatter split the payment from the advertiser. Typically, companies like Free Credit Report do not realize that they are indirectly paying illegal typosquatters. And so Edelman has targeted large networks like Google in his class action lawsuit to stop the illegal practice of typosquatting by holding Google liable for their part in this illegal practice. He hopes that by threatening to tarnish Google’s reputation, he will take away the financial motives for typosquatters and put them out of business. Edelman says the lawsuit represents any American trademark holder whose websites have been targeted by typosquatters.
Several large typosquatting companies have also been named as defendants in the lawsuit against Google, but Edelman has not sought to hold domain name registry services liable for facilitating typosquatters in registering illegal domain names. I think Edelman has missed a valuable opportunity by letting domain registry services off the hook. All parties involved in violating the Anti-cybersquatting Consumer Protection Act should be held accountable.
On the other hand, are typosquatters providing Internet users with a valuable service? As Alex Tajirian of CircleID Internet Infrastructure points out, “[y]ou would not be happy if you typed a domain name into your browser and wound up in nowhere land because of a simple misspelling.” He suggests ending typosquatting by legitimating the third party who arranges for the redirecting of traffic from the typo-domain to the proper domain. But this does not seem fair; why should a company pay for traffic to its website when the Internet user already knew the company and website he or she wanted to visit? One of Tajirian’s readers, Brian Hall, suggests that “[t]hreat letters, negotiation, the UDRP, and even ACPA litigation continue to dominate as the means of redressing typosquatting.” And another suggests that a business buy all of the typo-variants of their website’s name to avoid costly proceedings through the Uniform Domain-Name Dispute Resolution Policy (UDRP). Again, this does not seem fair to businesses.
I appreciate Edelman’s approach, and I believe the class action lawsuit is brilliantly bold, but not quite complete. If he had included all parties benefitting from typosquatting his lawsuit would be more powerful and therefore more likely to punish all at fault and end the problem for good.
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