Typosquatting

Such a Pain


Royal Pains is a television show on USA about Hank Lawson, a “concierge doctor” working in the Hamptons.  During a recent episode, in addition to dealing with the usual gamut of medical maladies, the characters were also confronted with a case of typosquatting.

In the opening scene, Hank's brother (and CFO of their company, HankMed) Evan leaves a voicemail furiously explaining that when he accidentally mistyped “HankMed.com” as “YankMed.com” in his Internet browser, he was directed to the site of a rival concierge doctor, Emily Peck.  As the scene goes on, he points out that the rival doctor also owns “HankMe.com,” “HankMes.com” and “HunkMed.com.”  Take a look at the clip:

 

Emily assures Evan that she’s not doing anything illegal. But we all know HankMed could sue her under the Anticybersquatting Consumer Protection Act (ACPA), assuming the fictional business had registered the “HankMed” trademark or could otherwise prove that Hank had developed a reputation under that name (and fans of the show know that he definitely has).  Unfortunately, Hank seems entirely unfazed by Emily’s actions...probably because they’re romantically involved.  At least Evan seems to understand the gravity of the situation.  Clearly typosquatting makes for high drama.   

Numbers – Typosquatting Study Variables


FairWinds recently released a study that calculated the cost of typosquatting for the brands behind the 250 most highly trafficked websites.  The total included costs from visitor acquisitions, lost sales and impressions and also recovery of typosquatted domain names, and came out to $327 million per year.

A major source of losses for brand owners is pay-per-click (PPC) sites; when a company invests in paid search, its ads appear on PPC and other websites in addition to the search engine’s results pages.  When an Internet user clicks on the sponsored link, either on the search engine site or another site, the company pays a click fee.  When an Internet user makes a typo or keystroke error while trying to reach a brand’s website and lands on a typosquatted domain site that is leveraging PPC to monetize traffic, we have found there is an 18% chance he or she will click on the targeted brand’s link (meaning the brand suffers a loss in the form of a click fee for gaining the visitor) and a 7% chance he or she will click on a competitor’s link (meaning the brand suffers a loss in the form of diversion while another advertiser pays the cost-per-click (CPC) and picks up the visitor).  The formulas that we used to calculate those losses are as follows:

For users who click on the targeted brand’s link:
18% x (Annual traffic per domain) x (Average CPC) = Advertising costs for the target brand

For users who click on a competitor’s link:
7% x (Annual traffic per domain) x (Average CPC) = Advertising costs for the target brand’s competitor

Originally in our calculations, we used an average CPC of $2.74 for each formula.  Given that we could calculate the CPC for the specific keywords in this study of 250 sites, we leveraged today’s Google estimates for each keyword CPC rather than looking at an historical average for a broad range of keywords.  Because there was a range of CPC and traffic values that could have created bias, we then extracted the weighted average CPC across the dataset.  We determined that $2.03 was the weighted average CPC for all the sites included in our study and therefore, $2.03 is the actual cost the site owners incur when a visitor lands on a typosquatted parked page and clicks on their link. Ultimately, this is the amount of money paid by the advertiser and shared by the contextual Internet advertising provider and the owner of the domain (and sometimes an intermediate party such as a domain parking company).

Obviously, this reconsideration alters our final calculation somewhat.  With the new average CPC, the total cost from ad clicks on typosquatted PPC sites in our study is $187,288,458 per year.  When added to the costs of lost sales and impressions, plus domain recovery costs, the re-calculated total cost of typosquatting is $364,276,874 per year.

If it’s not already apparent in the scope of this study, this figure applies to the 250 sites that we studied, and is not a comprehensive measure of all typosquatting (that figure would obviously be much greater).  To read the updated paper with an in-depth discussion of the damage that typosquatting inflicts on the 250 most trafficked websites, visit the FairWinds site for the entire paper, or the revised section for a discussion of how we calculated the sample set CPC.

Disorder in the Court


Southern Company (Southern), a Fortune 500 company that provides energy related services in the South, filed for an injunction against Dauben, Inc, a corporation that owns over 600,000 domain names, to suspend its use of the domains sotherncompany.com and southerncopany.com. Southern, which is a Fortune 500 gas & electric utility, had filed a lawsuit against Dauben over the registration and use of sotherncompany.com and southercopany.com—Southern claimed that Dauben was engaged in typosquatting and was therefore in violation of the Anti-Cybersquatting Consumer Protection Act (ACPA).  The district court found that Southern was likely to prevail in its lawsuit and awarded the injunction to prevent any further damage to the company until the matter was officially resolved.  
 
An appeal filed by Dauben, however, vacated the injunction. The appellate court found that the district court was too quick to assume the likelihood of Southern prevailing in its lawsuit against Dauben. Looking to ACPA, the appellate court determined that Dauben may succeed in its defense using the Act’s “fair use” clause and that the district court did not adequately consider how Dauben’s use of the domains caused “irreparable injury” to Southern.
 
I’m not a trademark lawyer, but in reading the decision, the language that particularly struck me centered around the appellate court’s dismissal of the “irreparable injury” claim. The appellate court stated that the district court inaccurately assessed the confusing similarity of the typo domain names to southerncompany.com and determined that “the likelihood of confusion test in trademark infringement law is different, and more comprehensive, than the test for ‘confusingly similar’ under ACPA.”
 
CADNA has been pushing for a more comprehensive ACPA for years now. In order for ACPA to be an effective piece of legislation—in other words, a piece of legislation that creates a deterrent against cybersquatting, which is what it was intended to do when it was passed a decade ago—it needs to be brought up to date. Cybersquatting techniques have evolved and continue to evolve; we need ACPA to evolve along with them or else cybersquatters will continue to find loopholes to avoid accountability.