Moreover, amicus in
this case, the Internet Commerce Association (“ICA”), points
out that when
Smith and Weber were decided, “the presentexpired domain name market barely existed,” and that today’s
conditions were “unanticipated only a few years ago.”
[15]
Here CFIT’s complaint alleges that every word in theEnglish language is already registered as a domain name, and
that desirable domain names can be difficult to come by. On
appeal, our understanding of the distinct role and value of
expiring domain names has also been significantly aided by
the explanation provided by the ICA. As cogently explained
by ICA, expiring domain names often carry with them a history
of established web traffic and advertising support; when
such names do expire, they “still maintain much of [their]
prior inbound traffic,” making them more valuable than
domain names that have never before been registered. The
district court, of course, did not have the benefit of briefing
by amicus. With the benefit of this aid to our understanding,
we are not prepared to affirm the district court’s ruling that no
separate market exists. We therefore reverse and remand for
further proceedings.
Philip S. Corwin
Partner
Butera & Andrews
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC
20004
202-347-6875 (office)
202-347-6876 (fax)
202-255-6172 (cell)
"Luck is the residue of design." -- Branch Rickey