UDRP DRLL.com loses a UDRP to DELL.com

[MapleDots]

Read this on Domain Gang


The domain DRLL.com was registered in 1998, and now Dell has claimed it via the UDRP process.

Visually, the two domains DRLL.com and DELL.com are 75% identical, but what’s more important is how Drll.com was used as a parked domain, taking advantage of the proximity of letters “E” and “R” on the keyboard.

Apparently, Drll.com forwarded to an Amazon affiliate page extracting results for Dell products. That seems to have triggered the wrath of the computer manufacturing giant.

https://domaingang.com/domain-law/d...65234c87ef2af077639f9ad6a8d358#comment-138408

 

[Bob Hawkes]

While the DomainGang post had most of the decision, for those who wish to read it in the format submitted by panel, it is in its entirety here.
https://www.adrforum.com/DomainDecisions/1865104.htm

 

[Recons.Com]

I don't know how these things work - at least for recent years it seems he had it pointed to use Bodis parking, at least some of the time with no-click ads it seems. Would that still have showed up as Alexa traffic?
Thanks,
Bob

Alexa tracks visits via its own browser extension, if someone has installed it. So, it would register a visit even if the name forwards, parks, doesn't have tracker etc. Then it basically extrapolates that data into global/country rankings.

While it is not precise and 100K ranked site (or domain without site even) might actually have less traffic than 200K ranked, it gives you idea of ranges. If a site gets around 100-200 visitors per day, for example, it should rank 3 million to 10 million etc. It ranks around 25 million domains and the rest are considered too low traffic to rank, so they would show "unranked".

 

[Recons.Com]

'R' is next to 'E' on the keyboard
Pretty sure the previous owner made a bucketload of money

Mistypes were more important before google introduced address bar autocomplete, suggestions based on popularity or previous type. If you are a repeat visitor typing in, you put "D" in ant will suggest "dell" for you. Try typing "namepros" and watch.

And all that happened many years ago, maybe 10+, hence the decline in mistype traffic probably 10+ times.

 

[Hypersot]

Mistypes were more important before google introduced address bar autocomplete, suggestions based on popularity or previous type. If you are a repeat visitor typing in, you put "D" in ant will suggest "dell" for you. Try typing "namepros" and watch.

And all that happened many years ago, maybe 10+, hence the decline in mistype traffic probably 10+ times.

decline or not still the money is good. That domain is gold as a typo domain imo

 

[Recons.Com]

decline or not still the money is good. That domain is gold as a typo domain imo

and how do you know this? you have any data? why is it unranked by Alexa?

 

[usamam]

He should have hired a better lawyer to represent his case

 

[Bob Hawkes]

He should have hired a better lawyer to represent his case

He apparently did not have legal representation as far as we know and did not respond at all to the UDRP. Only the complainant side was presented.

 

[MapleDots]

So curiosity.....

I am the owner of drll.com

I am starting bids at $100
BIN to be announced

Who would have bid on namrpros and for how much.

What would the wholesale value with no end user have been?

Be realistic, don't exaggerate your mock bid.

 

[usamam]

So curiosity.....

I am the owner of drll.com

I am starting bids at $100
BIN to be announced

Who would have bid on namrpros and for how much.

What would the wholesale value with no end user have been?

Be realistic, don't exaggerate your mock bid.

Did you lose the name against dell?

 

[Bob Hawkes]

Interesting thought exercise @MapleDots. Personally, I would not bid because it is not type of name I invest in, but I would see it as a worthwhile name for those who do.

If permitted, I would like to add a hypothetical additional question. In bidding on name would typographical similarity to Dell and potential UDRP be something you would have worried about for this name? For a long registered 4L that could mean many things, I would not have thought it was problematic. And of course it probably would not have been except for monetization choices. But like to know how many would have been UDRP worried re this name.

Bob

 

[MapleDots]

Did you lose the name against dell?

It's hypothetical

 

[MapleDots]

If permitted, I would like to add a hypothetical additional question. In bidding on name would typographical similarity to Dell and potential UDRP be something you would have worried about for this name?

Quite honestly I don't think the majority of bidders would have put it together with dell because it looks more like...

Dr LL than DELL

I think only the computer buffs would have put the DELL connection together and even then more than half of the potential purchasers on namepros would probably have had the common sense not to load dell or competing dell ads.

 

[Bob Hawkes]

Quite honestly I don't think the majority of bidders would have put it together with dell because it looks more like...

Dr LL than DELL

Yes I agree. The first thing I see in the word actually is drill but without the i. That is why the part in the judgement about it being confusingly similar on a visual comparison basis as explained in the judgement concerns me. I know they also had to prove the other elements of the UDRP, that was made easy by the owner in this case, but still if any 4 letter domain name that has 1 character different is confusingly similar it is problematic. I know they made the case that e and r are vaguely similar (but o and a and c are also similar) and the keyboard closeness, still I see concern.

Bob

 

[xynames]

He lost because he didn’t fight it. He had little or no control over the parking ads. I’ve seen situations where the ads are being paid for by the very company that sent the “Cease and Desist!” A simple PPC landing page isn’t enough by itself to show bad faith use of the domain. Most of you are making the wrong conclusion from the result, a posteriori.

But, if this result makes you fearful of creating landing pages for your domains with or without PPC that just leaves less competition for those of us that aren’t afraid.

 

[Michael Ehrhardt]

WTF

 

[aliweb]

This doesn't make any sense. If I own ThisIsMyDomain.com which goes to Amazon affiliate page extracting results for Dell products and in this case I am in the clear BUT when I own DRLL.com I am not?

It's not dell.net or dell.org or dell.cc it's drll.com. DELL has no claim/copyright whatsoever on these words DRLL. What if my domain means Direct and Relational Landing Leads which goes to Amazon affiliate page extracting results for Dell products, then what? May be add a mix of HP products too.

 

[vikki88]

thanks for sharing

 

[Recons.Com]

So, does it mean that Dell can claim infringement to the owners of sell.com well.com rell.com delk.com delp.com delo.com etc? Does BA.com infringe on BP.com or is it vise versa? How about EA.com and AA.com?

 

[Bob Hawkes]

I said this earlier, but just to express my opinion re precedent-setting a bit more fully. This decision says that the domain name drll is confusingly similar to the TM Dell. To support this they invoke the visual test of writing the two side by side and note a single precedent case, that of the domain name OmahaStecks with the TM OmahaSteaks.

To me this is a huge broadening of the interpretation, saying that precedent from 2015 (also in an uncontested UDRP with no response from the domain owner) establishes the grounds is highly concerning. Yes they each involve a single letter change but in one case a long two-word domain name with a very specific non-generic half compared to this 4L case that could be a creative spelling or an acronym for many things.

While there are always many precedents, but each time a UDRP panel or panelist widens the interpretation we should, as domain investors be concerned. This tends to happen in cases when no response is made. Now as part of the record, a future UDRP panel will be able to cite the decision that DRLL is confusingly similar to DELL.

"Respondent’s <drll.com> Domain Name is confusingly similar to Complainant’s DELL mark. It incorporates a misspelled version of Complainant’s mark, merely substituting the letter “e” with an “r” and adding the gTLD “.com.” These changes do not distinguish the Domain Name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (“The domain name differs from the mark only in that the domain name substitutes the letter ‘a’ in the word ‘steak’ with the letter ‘c’ and adds the generic Top Level Domain (‘gTLD’) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). The WIPO Overview 3.0 at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Name, and this establishes its confusing similarity to Complainant’s mark."
​

Links:
The DRLL decision
The OmahaStecks decision

 

[BaileyUK]

But Bob, This alone would have NOT resulted in a judgement in favor of the Plaintiff. This was not the 'Be all' of the judgement. It was only one of the 'three' elements proved. And would not have held the weight you seem to assign to it on it's own. You seem to have latched onto the ' similar' element. However it was judged to be Confusingly similar with Intent and intended Gain. A whole different ball-game

I appreciate (Well lets just say, I can see) what your trying to bring to the fore in your repeated posts. Let me do a little amusing Analogy to your posts.

Man gets convicted of Murder - Prosecution stated, "he had the victims blood on his hands". Now you come along and say 'Perhaps' we can't help victims of any crime because this man was convicted because he had blood on his hands.

But, The prosecution also stated the accused DNA was also found on the knife siting by the roadside also with the blood of the victim on it. Secondly, we also have video footage of him 'lunging' at the victim before he collapsed and died.

I'm a little bit lost on why you keep focusing on one element of the judgement Was you planning on creating a Blog thread on the challenges of holding similar domains and looking for ammunition ?

 

[BaileyUK]

I will add, I acknowledge your four-letter element concern. But what are the panelists supposed to do, ignore four letter domains, Make three letters strictly out of bounds also. Why not push it to five letters. I think your loosing sight of what a 'Reasonable' person may well have similarly concluded given all the circumstances. Sure the panelists have to give a written judgement satisfying at least 'three elements' perhaps they would've done better being more wordy on the other elements, But the bedrock was the typo element (ASCII Layout) alongside the Judged intent.

Lets not forget the defendant pretty much put forward a Plea of 'No defense' by not even submitting a written statement. He/she may have just had second thoughts about Dell going for a pursuing action, if they were so inclined. Sure some factual figures would've been required but they wouldn't have been too hard to unearth. I'm sure Amazon would've played ball

 

[Bob Hawkes]

What if my domain means Direct and Relational Landing Leads

I am not a legal expert, obviously , but my reading of the part of judgement re that element is if you indeed operated a company with that name and which used the DRLL abbreviation for your business the UDRP would have failed.

The judgement points out that there is no obvious relationship to name or nickname or company name of respondent (who did not provide response). I suspect a clever lawyer could argue that it meant DrLL with LL having some meaning like you propose, if they had any evidence even of informal use of that name.

Had there been legitimate use of name, even though the panel considered DRLL and Dell confusingly similar (in over-reaching error in my opinion), the UDRP would have failed.

As @xynames points out, an important point is that the domain owner did not respond, and therefore none of the points challenged.

Bob

 

[Yuri Kt]

So curiosity.....


Who would have bid on namrpros and for how much.

LOL

 

[Nahdism]

I may be wrong on this. But, when it was pointing to Dell products in the Amazon marketplace, it was increasing Dell's popularity and presence, and who might know, many people might have bought Dell's products through Amazon using his link, which means good business to Dell. And he was getting his share on affiliate sales. All the 3 parties involved should be happy. I don't understand what made Dell be so upset about it.

 

[MapleDots]

I may be wrong on this. But, when it was pointing to Dell products in the Amazon marketplace, it was increasing Dell's popularity and presence, and who might know, many people might have bought Dell's products through Amazon using his link, which means good business to Dell. And he was getting his share on affiliate sales. All the 3 parties involved should be happy. I don't understand what made Dell be so upset about it.

It also showed competing products, that is why dell won the case.