When Robert Hughes decided it was time to get his business on the Web, he figured the domain name ought to simply reflect the name of his business: HughesWoodService.com.

When Angelica Clemmer opened her store in Rehoboth Beach, she had the same straightforward instinct, and decided on RehobothBeachSurfShop.com.

But when they went to register the names, both business owners found they had been beaten to the punch -- by their rivals.

In the speed-of-light world of modern commerce, businesses that hesitate to stake out a Web presence are finding that they're very likely to be outmaneuvered. The never-ending battle for Google-search prominence has created a valuable incentive for competitors to snatch up domain names by the dozen, even if there's no intention of using them.

Called "cybersquatting," it's a practice that can be viewed as illegal, unethical -- or even perfectly legitimate -- depending on the specifics of the case and the perspectives of the people involved. And while there are multiple means of stopping someone from illegal cybersquatting, resolving these domain name disputes can become an expensive and uncertain process.

In the end, experts say, the best protection is a pre-emptive one. Prior to opening a business -- or even telling someone what it will be called -- register its domain name before someone else does, they advise.
Understand the urgency

For Hughes, there seemed to be no rush in registering his Rehoboth Beach business's name. After all, how many Hughes Wood Services could there be? Who else could want it?

As it turned out, someone did.

Sussex Tree, a Seaford-based rival with a presence across the county, had already registered HughesWoodService.com by the time Hughes acted, and was using it to redirect traffic to their home website, SussexTreeInc.com.

That simply has to be illegal, Hughes thought. At the very least, he says, it seems shady.

The folks over at Sussex Tree say there was no ill will involved.

"There was no intention of undercutting anyone or cutting anyone's throat in the process," said Ritchie Thurman, the company's director of operations. "It was done on a whim and there was probably not enough thought put into it. But we didn't do it vindictively or maliciously."

Thurman says the company is willing to sell the domain name to Hughes, but hasn't been approached about a deal. Hughes believes he shouldn't have to buy it -- after all, it's his name, and his company.

Hughes could register the company under a .biz or .net suffix, but doesn't believe it's a true solution.

"It isn't stopping me entirely, but I would prefer to have the more common 'dot.com,'" he said. "And frankly, I don't want them redirecting traffic to their site."
Don't let it get messy

Since the dispute hit local talk radio, Sussex Tree has shut down HughesWoodService.com, but hasn't decided what step to take next. "We don't feel it's our responsibility to go to him and give him something that we've paid for," Thurman said.

In Hughes' case, trademark attorneys say, there are several options at this point.

He could take his case to court, and sue under the federal Anticybersquatting Consumer Protection Act of 1999, which was established to make it easier to bring action against squattters, but puts burden of proof on the plaintiff to show the name was taken in "bad faith."

It's an expensive process, and a slow one, trademark experts say.

"I don't have the opportunity, and frankly I don't have the resources, to pursue it a whole lot," said Hughes, whose tree-trimming business opened in the 1980s. "I've got trees to cut down."

A second, less-costly option is having the case put into arbitration under the Uniform Domain Name Dispute Resolution Policy, a process used by all accredited domain-name registrars.

To resolve these disputes, both courts and arbitrators will look at whether the plaintiff has established a trademark, either registered or unregistered. The trademark owner also will be expected to show that the party that registered the domain name has no legitimate right or interest in it, and that it was registered and used in bad faith, according to Daniel A. Tysver, a Minnesota patent attorney who authors BitLaw.com, a website focusing on intellectual property law.

"It's all built on very, very old laws ... that are there to help the consumer from being swindled and being confused," said Jason Hayden, a brand protection specialist with Corporation Services Company in Wilmington.

In Hughes' case, there seems to be evidence that the business name is protected, Tysver said. While the name doesn't have to be registered to be trademarked, it does have to be readily identifiable in the community with Hughes' company.

"If you've been using it for years ... then almost certainly he's used it long enough to use those [trademark] rights," Tysver said.

There seems to be less evidence that Sussex Tree has a legitimate need for using the name, said Nicole McLaughlin, an attorney who specializes in trademark law with the Duane Morris firm in Philadelphia.

"There's no legitimate reason for him to be doing that other than he's trying to trade off the goodwill of Hughes Wood Service," she said.
'Like a big shark'

In the case of Rehoboth Beach Surf Shop, the circumstances seem less clear-cut, experts said.

Clemmer believes that the owner of the rival East of Maui surf shop, which has locations in Lewes and Dewey Beach, nabbed her startup's name after hearing she planned to open her store. Speaking out on Clemmer's blog, Maui's owner counters that he registered RehobothBeachSurfShop.com, DeweyBeachSurfShop.com and many other similar sites in an effort to capture Internet surfers, not to undercut Clemmer's surf business.

A name like RehobothBeachSurfShop.com -- partly because it has a city name in the address -- is simply too generic to gain immediate trademark protection, attorneys say. It's possible that it could become a legitimate trademark over time, as people begin to associate it with Clemmer's shop, but it was just opened last spring, and has been closed for the winter.

So Clemmer has been forced to make something of an end-around, registering TheRealRehobothBeachSurfShop.com as her site.

"Financially, I can't fight him," Clemmer said of East of Maui's owner, who could not be reached for comment. "I just hope he doesn't do anything else. He's like a big shark and we're like a tiny little fish in the world of businesses."

[Via - Delmarvanow.Com]

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