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February 07, 2017

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Here's the The Lowdown from DN Journal,
updated daily
to fill you in on the latest buzz going around the domain name industry. 

The Lowdown is compiled by DN Journal Editor & Publisher Ron Jackson.

Somebody Bullied the Wrong Grandma - How Heidi Powell Became a Key Figure in the Fight for Domain Owner Rights  

For as long as there has been a domain business, domain owners have had to deal with people trying to steal their assets through frivolous UDRP filings or lawsuits. Predators quickly learned that instead of paying the rightful owner for it, they could get their hands on a domain name much cheaper the underhanded way because there was rarely a price to pay if they got busted. 

In the case of UDRPs, even if the usurper is found guilty of a Reverse Domain Hijacking attempt, there is no penalty for that. In the case of lawsuits, a lot of domain owners have had no choice but to forfeit their domain rather than face the sky high cost and aggravation of a protracted legal battle against opponents with far larger bankrolls. 

It has gotten a little better over the years but serious problems still remain 

Image from Bigstock

because, for the most part, it was only domain owner's oxen that were getting gored - and no one had much interest in domain owners unless they happened to own a name that someone thought they should have instead.

Yet, all of the sudden, there is a domain owner that a lot of people care about - a grandmother from Washington State named Heidi Powell whose plight has captured widespread media attention, attention extending beyond the domain world. The injustice in her situation even caught the eye of USA Today.   

Joseph Peterson posted an in depth account of Heidi's story at the NamePros Forum that has now been supplemented by dozens of posts from others, including most notably one of the world's leading domain attorneys, John Berryhill, that further illuminates the complicated situation. I highly recommend reading all of it, but if you are pressed for time I'll attempt to give you the Cliff's Notes version here.

In 2005 Heidi's husband Kent registered the HeidiPowell.com domain name and gave it to Heidi as an anniversary gift. She has used it ever since - initially 

Heidi Powell
The owner of HeidiPowell.com
since 2005.

for email and more recently for her own business. That should have been the end of the story. But years later, another woman, whose name also became Heidi Powell after a 2010 marriage, came along and decided the grandmother should give up her name because Heidi #2 was a "celebrity" of some sort (she apparently appeared as a fitness trainer on an ABC-TV show called Extreme Weight Loss). This even though Heidi #2 already had a perfectly respectable domain name in HeidiPowell.net (for the record Bruce Springsteen is at BruceSpringsteen.net so its not like someone who is less well known than the Boss's roadies should feel the extension is "beneath" them).

Attorney David Weslow

The original Heidi declined the new Heidi's offers to buy the name, so Heidi #2 sued her in an attempt to take something that clearly was not hers to take. Since the original Heidi and Kent had gone through a bankruptcy in 2012 they probably looked like easy targets as they would have little money to mount a defense. However, Heidi #2 did not plan on domain attorney David Weslow (WileyRein.com) getting wind of all this and deciding he couldn't let it pass. Weslow took on the original Heidi's case pro bono and most expect that case will go in the original Heidi's favor once the verdict comes down. Meanwhile, the Internet Commerce Association (who works to protect domain owner rights) has already recognized Weslow for his selflessness by awarding him the ICA's first Lonnie Borck Memorial Award

But wait! Heidi #2 was not done yet!

Even with the original case still to be resolved, Heidi #2 had a trick play up her sleeve. She filed a new suit asking the judge in the original Heidi's bankruptcy case to re-open it, claiming the real Heidi did not list her domain name among her assets of value (never mind that at the time - and even now - the name has no value to anyone not named Heidi Powell). Again Heidi #2 found she had picked the wrong grandma to bully. Even though the original Heidi would have to foot the bills this time, she counter-sued Heidi #2 for damages and expenses that could run into six figures. All of the sudden Heidi #2 apparently realized she had stepped in a big pile of...well, I hate to say it but...#2. According to the commentary in the NamePros thread she withdrew her bankruptcy case lawsuit - but now it is the original Heidi who is not done yet. Her counter-suit will continue and Heidi #2 cannot withdraw from that.

So, while Heidi #2 now finds herself in a world of hurt, Heidi #1 had landed in an unexpected new role as a champion of domain owner's rights. As John Berryhill noted in his NamePros commentary, "Ending it with a bang, particularly given that a celebrity of sorts is involved, could have the beneficial effect of sending a message to others similarly situated that going into a court or UDRP on a flimsy trademark claim, and walking out with a domain name to which someone else is properly entitled, is not always as easy as it seems."

Berryhill added, "It really spins some folk's heads around when, during the course of a domain dispute the trademark claimant makes an offer, and gets a response to the effect of, "No, we're going to sue you for more than that and KEEP the domain name. Opposing counsel didn't used to take those sorts of statements seriously until a handful of domain registrants began seeking, and obtaining, damage awards for Reverse Domain Name Hijacking. Those sorts 

Attorney John Berryhill

of decisions have made it easier to deter frivolous claims, and I imagine that this one will add to the impact of counter-threats in domain disputes. That's a good thing."

Even though going to war in the right thing to do, it's not something the real Heidi can afford to do alone. After dozens of people asked how they could help she opened a GoFundMe page where anyone can contribute toward the $7,000 goal to help meet the legal expenses.  There have been lots of donations ranging from $10 to $100 and Heidi said every dollar will go toward the cause - with any money left after legal costs being donated to the Internet Commerce Association who has helped spread this story far and wide.

While I have given you a summary of this situation I want to close with something more powerful - Heidi's own story, told in her own words in this 3-minute YouTube clip:

(Posted February 6, 2017) 

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