600 + Domains and my First Dispute

[Spade]

It was bound to happen. I suppose you cant be a "real" domainer until you get some letter of dispute. Although this letter was written well, I dont believe the owner has a case.

The domain name was acquired through SnapNames as an expired domain. The domain has kept its age due to the relationship of NetworkSolutions and Snap. I just acquired the domain earlier this week.

I had not parked the domain name as of yet either. I am now moving it to my hosting servers and going to put up a holding page of some kind

I recieved this letter late last night:

Attention Justin Allen:

According to recently updated Network Solutions records, you have become the recent Registrant/Admin on www.ExampleDomain.com. Please be advised that this fact and your right to such ownership is in dispute. ExampleDomain.com has been, since 1997, and continues to be the legal business name of a website promotion company owned by (Business Name which is completely different then domain name). Due to gross errors on the part of Network Solutions, this name incorrectly made its way to availability.

As this is an established business name, all rights for use will be sought and any infringement will prosecuted to the extent of the law. This is a pending case and until its settled, please refrain from all or any use of this company name.

Most Sincerely,
Owners Name

Now, with the facts above, your recommendations on how to proceed. I have yet to respond to the letter as I weigh the best possible responses.

Thanks,
Justin

 

[DNQuest.com]

First of all, no matter what you think, the ownership of the domain is the date you took control of the domain. There are exceptions when goodwill is transfered too, but this is clearly not the case. So the date of would be early this week, the age is not kept. And that is the date that would be used when establing alleged TM mark and your registration.

Next item would be, do you think they have a case for TM? either registered or common law? That could be pretty easy to find out. Now, is the domain descriptive or unique in nature? What are your plans for the domain? Would it be competing or for something completely out of the realm of what the alleged TM provides?

I know this is not what you want to hear, but you need to be objective and look at it from both sides.

 

[Spade]

First of all, no matter what you think, the ownership of the domain is the date you took control of the domain. There are exceptions when goodwill is transfered too, but this is clearly not the case. So the date of would be early this week, the age is not kept. And that is the date that would be used when establing alleged TM mark and your registration.

Next item would be, do you think they have a case for TM? either registered or common law? That could be pretty easy to find out. Now, is the domain descriptive or unique in nature? What are your plans for the domain? Would it be competing or for something completely out of the realm of what the alleged TM provides?

I know this is not what you want to hear, but you need to be objective and look at it from both sides.

I do agree with your last statement. Which is exactly why I posted in this forum. The name I consider to be relatively generic. I will PM on request, but not post it in the thread.

A similar example of a domain name would be - "GetTraffic.com" - although after consulting with another domainer, we believe this domain is even more generic.

The domain name was acquired to be resold. Plane and simple. Would it be used to compete in the nature of their business? Perhaps. But the name could be applied to either SEO / Traditional Marketing / or Travel.


UPDATE:

I had not noticed until pointed out by another domainer (thanks Sharon) this domain was used for forwarding and the site was actually built on another domain name.

 

[mhdoc]

I make it a policy not to respond to anything which doesn't have a judge's signature on it. Otherwise you are just providing the other party free documentation to use against you.

 

[texeyes]

Spade, please keep this thread updated. I am excited to hear the end result!

 

[Spade]

Spade, please keep this thread updated. I am excited to hear the end result!

I do intend to. As I know more I will update the thread and respond to questions or comments.

 

[Kate]

I like this one:

Due to gross errors on the part of Network Solutions, this name incorrectly made its way to availability.

 

[Spade]

I like this one:

LoL - my guess is he just forgot to renew. But its always easier to blame someone else.

 

[jberryhill]

although after consulting with another domainer, we believe this domain is even more generic.

Domainers are generally not the most reliable sources of legal opinions.

 

[verbster]

Though it may be legit, it almost sounds like a scammer who monitors trades and is looking for a cheap way to score domains. (The letter sounds familiar, like one has been posted here before?)

 

[SharonTucci]

Domainers are generally not the most reliable sources of legal opinions.

There was a little more to it than that.... There is no registered trademark in the US - it is a US company. They have not had a site at the domain in 4 years. For at least 2 of the 4 years they had it forwarded to a site that made no mention of the phrase used in the domain and actually REPLACED the term in the domain with a completely different one. Their company website does not make any reference to the term or the domain while it does make reference to the forwarded one. It is a very general term with almost 1 mil exact matches on Google. If you enter the company's name in google and this term, you get 4 hits - none of which have anything to do with the company or this domain. Incidentally, a similar search on three of my own company names have a match with this term and John Berryhill has 4 exact matches The term is a general Internet marketing one which makes me less inclined to see the possibility of offline use of it. Furthermore, the last version of the stand alone website for the domain does use the company's actual name and not the domain as a business name as is suggested in the email Spade received. The site says refers to the domain as being a service of... so trademark/servicemark established by use.

As far as my "domainer" knowledge goes, rights for an unregistered trademark begin with use and end when use is abandoned.

As an aside - the domain that the one in question has been pointed to had a renewal date just one day apart (original reg year was the same). The domain that it was pointed to was renewed just a few days before it would have been made available. The contact info was the same for both domains.

Perhaps there was a screw-up at Network Solutions. Hard to say without hearing more. But outside of that, what legitimate claim do they have to a domain it appears they just didn't renew?

 

[Spade]

Domainers are generally not the most reliable sources of legal opinions.

Perhaps not BUT... "this" domainer is quite knowledgeable and has been involved in similar issues. I do trust her views on the subject.

 

[groundctrl]

I make it a policy not to respond to anything which doesn't have a judge's signature on it. Otherwise you are just providing the other party free documentation to use against you.

i don't have a lot of experience, but this makes a lot of sense to me.

 

[Dave_Z]

If the party is going to sue in court (and some are crazy enough to do that),
get ready to retain Dr. Berryhill. :D

Or if he's unavailable, check the list in the legal section.

 

[Spade]

As it stands right now, I have moved the domain to point to a holding page, with a 403 error. I have responded to the all parties in the email asking Network Solutions for clarification on the issue. I await their response.

Justin

 

[PowerUp]

Due to gross errors on the part of Network Solutions, this name incorrectly made its way to availability.

I'd say it was probably due to negligence on their part, not Network Solutions. I wonder how NW is going to defend their reputation since this complainant is putting NW's competence on the line. Surely you have NW as an ally on your side =)

 

[Spade]

I'd say it was negligence on their part, not Network Solutions. I wonder how NW is going to defend their reputation since this complainant is putting NW's competence on the line. Surely you have NW as an ally on your side =)

Well, interestingly enough it was pointed out that there truely could have been an error on Network Solutions side. For example if the customer had paid for a renewal, but the system simply just did not renew it. However, I am sure there are some major legal issues if that is the case.

I am still awaiting Netsol's response. (although I don't expect it until next week at the earliest)

 

[Dave_Z]

Even if it turns out Network Solutions didn't process the renewal, chances are
they'll only refund the amount if it hasn't happened yet. Then it's good luck to
that party for trying to possibly secure a judgment against them, more so the
risk of getting sued by them for breach of contract.

 

[Smiler]

Hey guys. If this goes to court, would it be very expensive? How much do domainers are willing to pay just to keep a domain name especially a generic one? Any suggestions?

 

[Spade]

Hey guys. If this goes to court, would it be very expensive? How much do domainers are willing to pay just to keep a domain name especially a generic one? Any suggestions?

Perfect point. The issue is will I hire a lawyer in order to keep this domain name? Unlikely. Its a nice domain name, but were not talking about a highly prized generic with built in traffic. I paid about $120 for this domain name.

Now, on the flip side. Would it be smarter for the original owner to retain a lawyer, or just offer to buy the domain name from me? If He approached the situation right. I would sell for much less than it would cost him to retain a lawyer.

Hopefully in this situation common sense rules. However, Its going to be up to the original owner, not me. Again, as Soon as I hear more, I will update this thread.

Justin