The Growing Problem Of Domain Name Tasting And Spying

by Roberta Jacobs-Meadway and Richard E. Peirce

While neither practice is new, domain name tasting and spying appear to be on the rise. As website click revenue business grows and becomes more popular, those involved in the business are increasingly resorting to these tactics in their attempts to seize upon profitable domain names.

"Tasting" Defined

Domain name "tasting" is the practice of registering a domain name in order to "test-drive" it during the five (5) day add-grace period following registration when the domain name can be deleted for a refund. The purpose of the "test-drive" is to see how much Internet traffic and/or click revenue is generated through the website at that address. In other words, the domain taster wants to gauge how many people access the site through the domain name and how many click on one or more of the links at the site—-acts that generate revenue for the domain name owner.

Many times, the domain name at issue consists of a misspelled version of trademark, such as Xeroxx (referred to as "typosquatting") or some other common variation meant to lure Internet users by deception to the website. The "tasted" domain name is usually configured to point to a sponsored links website with the hope that Internet users who are exposed to the content will click on one or more of the links, thereby generating "click" revenue for the domain name registrant. If the registrant is pleased with the performance of the domain name in generating click revenue during the add-grace period, the registrant will likely keep the registration. If the click performance is disappointing, the registrant can cancel the registration for a refund before the end of the add-grace period. In some instances, a taster will register and drop the same domain name multiple times before the end of each add-grace period, getting the benefits of ownership without ever having paid for the registration (commonly known as "domain name kiting").

What is "Spying"

Domain name “spying” is the technique by which a person monitors or “spies” on whois/ownership searches for domain names.  The “spy”, who many times is involved in the domain name/website click revenue business, engages in this behavior to learn about domain names that are of interest to a searching party.  The spy will move in and register a domain name that was searched but not yet registered by the searcher. The spy can then use the domain name tasting process described above to evaluate the performance and value of the newly acquired domain name.   

Consider the following situation:  As a business prepares to launch a new product/service and corresponding new trademark (for example, the mark “SUPERSWIMMINGPOOLS”), it checks the availability of certain key domain names as part of its trademark clearance process.  The business then makes a decision on the mark (perhaps in part because of the availability of www.superswimmingpools.com or www.superswimmingpools.us) and moves forward with registering the domain names.  If a domain name spy was watching the original domain name searches, the business may discover that these domain names have already been registered—to the spy.

Some Helpful Tips

If a desired domain name is already registered, the registration date should be checked.  If the domain name was registered within the last five days, and a tasting situation is suspected, the domain name should be manually monitored through a reputable whois or other search service to see if the domain name is dropped before the end of the add-grace period.  If it is dropped, the business should move quickly to register it.  In our experience, back-order services have been ineffective in tasting situations since the domain names are not dropped or made available through a normal domain name expiration cycle.  Where a tasting situation is suspected, effort should be made to avoid accessing the corresponding website.  If access is unavoidable, it is important to avoid clicking on any of the web links, since web traffic and click activity may encourage the taster to keep the domain name after the add-grace period.
   
Who to Contact  

For more information about domain name tasting and spying, and how Ballard’s Intellectual Property group can help you and your organization identify, protect or leverage the full value of your intellectual property, please contact Jamie Bischoff, partner in charge, Intellectual Property Group, at 215.864.8207, Roberta Jacobs-Meadway at 215.864.8201, or Richard E. Peirce at 215.864.8134.