Orkut, Whorkut, Whorkut.com

Using Orkut a year ago, I was simultaneously impressed and dismayed by various ways people would try to game the system for self-promotion. I wanted to put up a satirical critique of these practices, so I coined the term "whorkut" and registered the domain name whorkut.com.

I didn't immediately develop the site, and then Orkut became ridiculously slow and unstable. Poking fun at such a crippled site just wasn't sporting, and I lost interest in the satire project.

Then I received an email from Google that demanded I transfer the domain to them. This annoyed me at the time.

The matter has since been resolved amicably, and I see no reason to make a fuss. I'm putting the email history on the Web so that, should there later turn out to be a persistent pattern and practice of trying to intimidate domain owners, people can be aware of at least this one prior incident.

(Note: In the following emails, I've used square brackets to anonymize individuals' names and email addresses. For readability, I've cut quoted emails from the bottom of reply emails.)

The first email:

From: tmenforcer@google.com
To: neil@neilvandyke.org
Subject: Infringement of the ORKUT mark - whorkut.com
Date: Fri, 11 Mar 2005 17:00:23 -0800

Dear Administrators:

Google Inc., through its related company Orkut.com, LLC, is the owner of the ORKUT trademark. This mark is used in connection with a social networking service. This service received a great deal of press immediately upon its launch. Therefore, the mark quickly became extremely well-known.

It has come to our attention that you have registered and are using the domain name whorkut.com which is very similar to the ORKUT trademark. Your use of this domain name constitutes trademark infringement, cybersquatting and unfair competition. Due to the similarities, internet users are likely to believe that your site is an official Google site or sponsored or endorsed by Google.

We cannot allow such confusion to continue. Accordingly, we must insist that you take the following steps within 7 days:
1. Cease and desist use of the domain name whorkut.com and any other domain name or trademark that is similar to ORKUT;
2. Transfer the domain name whorkut.com to Google;
3. Identify any other domain names you own that are similar to ORKUT or any other Google trademark and agree to transfer these domain names to Google.

We look forward to your prompt response and cooperation.

Sincerely,

The Google Trademark Enforcement Team

I replied:

From: "Neil W. Van Dyke" <neil@neilvandyke.org>
To: tmenforcer@google.com
CC: neil@neilvandyke.org
Subject: Re: Infringement of the ORKUT mark - whorkut.com
Date: Fri, 11 Mar 2005 21:43:34 -0500

Dear "Google Trademark Enforcement Team",

I have received your communication timestamped just after close of business, Wes Coast time, on a Friday.

At first glance, the objections you raise to my use of the whorkut.com domain name do not seem legitimate to me, and the tone of your letter strikes me as unnecessarily brusque in this case.

However, since I'd already lost interest in that satire project, I've taken down the site while I consider your letter and what should be my further response.

Please be advised that, had you only asked nicely (e.g., "We'd rather that the Whorkut.com satire site wasn't out there, even though we see where you were going with the joke"), I probably would've just transferred the domain to Google, just to be nice in return. Now your ill-considered boilerplate has just made more work for both of us, and left a bad taste in my mouth. Since when is Google ungracious?

Could you please give me the name of a specific person to whom I may address further communication on this matter?

Neil Van Dyke

I didn't hear back, and I decided that Google might as well have the domain. But first I thought it'd be good if whoever at Google was being a little evil had to ask Mr. Don't Be Evil for the domain, so I initiated a transfer to Sergey Brin, and wrote back:

From: "Neil W. Van Dyke" <neil@neilvandyke.org>
To: tmenforcer@google.com
CC: neil@neilvandyke.org
Subject: Re: Infringement of the ORKUT mark - whorkut.com
Date: Mon, 28 Mar 2005 12:04:40 -0500

Dear "Google Trademark Enforcement Team",

I have not received a response from you in over two weeks.

I decided I didn't want to hassle with renewing the domain, but I also didn't want it to wind up in the hands of a squatter or other shady character.

Therefore, a few days ago I initiated and approved a transfer of the domain to Sergey Brin, who seems like a well-intentioned enough steward.

Hopefully he will check his Stanford email today, so that he can accept the transfer before the domain goes into limbo or I have to renew it.

Cheers,

Neil Van Dyke

So then the pseudonymous Google Trademark Enforcement Team attempted to bypass Sergey Brin and transfer the domain direct to Google:

From: tmenforcer@google.com
To: neil@neilvandyke.org
Cc: google@alldomains.com
Subject: Transfer of domain name whorkut.com
Date: Mon, 28 Mar 2005 12:00:13 -0800

Dear Administrator:

Thank you for your agreement to transfer the domain name whorkut.com to Google. I am copying our domain name registrar, MarkMonitor, and ask that they initiate the transfer. They will let you know if any action on your part is required.

Thank you again for your cooperation in this matter.

Sincerely,
The Google Trademark Enforcement Team

Someone at MarkMonitor working for Google then mailed me because I had a registrar lock on the domain:

From: [[name]] <[[...]]@markmonitor.com>
To: <tmenforcer@google.com>, <neil@neilvandyke.org>
Cc: "alldomains google" <google@alldomains.com>
Subject: RE: Transfer of domain name whorkut.com
Date: Mon, 28 Mar 2005 13:17:08 -0700

Hi,

In order to submit this domain for transfer, we need the registrar lock removed by Joker.com. Please have the lock removed, and confirm when this is completed.

Thanks for your help, and let me know if you have any questions.

[[name]]
Client Services Manager
MarkMonitor, Inc.
391 N. Ancestor Place
Boise, ID 83704
Ph: +1 208 685 [[...]]
Fx: +1 208 389 [[...]]
[[...]]@markmonitor.com

I clarified that I am not willing to transfer the domain to Google, (copying a Google PR address, since I was briefly annoyed):

From: "Neil W. Van Dyke" <neil@neilvandyke.org>
To: [[...]]@markmonitor.com
CC: tmenforcer@google.com, google@alldomains.com, press@google.com
Subject: RE: Transfer of domain name whorkut.com
Date: Mon, 28 Mar 2005 20:23:17 -0500

Hi, [[first]].

I'm afraid your time has been wasted.

The short answer is... I have NOT agreed to transfer the domain name "whorkut.com" to Google, and I will NOT remove the registrar lock.

Additionally, to the best of my knowledge, Google has no legal claim to "whorkut.com" that would entitle them to forcibly transfer the domain from me, nor to cause my registration to be canceled.

The long answer...

The source of this latest confusion might be that I voluntarily already initiated a transfer of the domain to the private individual Sergey Brin. I did this after "Google Trademark Enforcement Team" both annoyed me with inaccurate assertions and hamfisted demands, and then declined to provide me with the name of a person there with whom I could speak.

Since I believe Sergey Brin is affiliated with Google, I think he might be willing to transfer the domain to Google, after he's accepted transfer of the domain to himself. I leave that to his discretion.

I imagine that Sergey might ask Mr./Ms. "Google Trademark Enforcement Team" to explain why s/he risked damaging Google's public image by being a little evil.

Now it appears that "Google Trademark Enforcement Team" has screwed up once more, by attempting what could be interpreted as a fraudulent transfer of the domain to Google. Rather than talking with Sergey?

I mostly like Google, and I'd prefer not to make enemies there, which is part of why I'd decided not to mention this incident in public forums such as Slashdot. But I hope that Google will revisit the policies and procedures of "Google Trademark Enforcement Team", since I think something's a little out of whack there. Google is too important to be getting sloppy. Sloppiness also makes for bad PR.

Neil Van Dyke

A Google legal person finally emails me (the first time I've been given the name of a person at Google):

From: [[name]] <[[...]]@google.com>
To: neil@neilvandyke.org
Subject: DN Transfer - Whorkut.com
Date: Tue, 29 Mar 2005 13:11:41 -0800

Hi Neil,

I work at Google's Legal department, and have received some of your correspondence. We assumed that your agreement to transfer to Sergey meant that you would be willing to transfer to Google, so perhaps that is where the misunderstanding arose. Rather than require our founder to become involved in a domain name transfer, we'd prefer that you transfer it directly to Google.

Please note that your registration and use of this domain name does in fact constitute trademark infringement, dilution, a violation of the ACPA, and bad faith registration under the UDRP. Google has prevailed in similar matters and has been awarded damages and costs.

We greatly appreciate your cooperation in this matter. Thank you in advance.

Best Regards,
[[first]]
--
[[name]]
Legal Department, Google Inc.

I respond back, outlining my layperson's understanding of the legitimacy, and suggesting options for Google:

From: "Neil W. Van Dyke" <neil@neilvandyke.org>
To: [[name]] <[[...]]@google.com>
Cc: neil@neilvandyke.org
Subject: Re: DN Transfer - Whorkut.com
Date: Tue, 29 Mar 2005 18:37:12 -0500

[[first]],

Thanks for your polite note.

I'm not a lawyer, but I have to say that your assessment of the legitimacy of the domain name is counterintuitive to me, for the following reasons:

1. I believe my registration and use of the domain name was protected as satire (if not academic inquiry and communication).

2. I'd be quite surprised if anyone ever mistook "whorkut.com" for a brand of Google.

3. I have not used the domain name in competition with Google.

Due to the earlier crude anonymous email from Google, and my opinion that Google would be overstepping in going after legitimate satire sites, I'm disinclined to transfer the domain to Google.

Three possibilities I see at this point:

1. The domain name registration expires in approximately two weeks (at "2005-04-15 19:53:39 UTC," according to "whois"). I have no intention of renewing the registration. So, I imagine Google Inc. could just snap up the domain a bit over two weeks from now.

2. If Google Legal mails me a statement within 7 days that they believe my registration of the domain name to be legitimate, and that they have no claims otherwise -- then I would feel better about this incident, and I would be happy to promptly transfer the domain to Google as a gesture. (Assuming Sergey Brin doesn't accept the transfer to him, which I believe my registrar said expires 5 days after initiated.)

3. If Google were to attempt to challenge my rights to the domain name in the interim (such as through ICANN mechanisms), then I expect that I would have renewed interest in satire sites. I also expect I would feel obligated to fight Google's action, from an Internet governance public-interest perspective.

Neil Van Dyke
[[address]]
Cambridge, MA 02139

Google legal person replied:

From: [[name]] <[[...]]@google.com>
To: "Neil W. Van Dyke" <neil@neilvandyke.org>
Subject: Re: DN Transfer - Whorkut.com
Date: Tue, 29 Mar 2005 16:15:35 -0800

Hi Neil,

Thanks for your reply, and for the additional information. Since the domain name registration is expiring so soon, that sounds like a good option, and we will plan to pursue it.

I'm glad we can resolve this matter. Please let me know if you have additional questions or concerns.

Best Regards,
[[first]]

At time of this writing (2005-04-18), the domain has expired, but does not appear to have yet been registered to anyone new.