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

 

[AdoptableDomains]

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)

If in fact it were a NSI error, that is not the fault of the buyer or snapnames who sold it. I believe if they had a case, it would be against NSI for negligence. Even if NSI was found negligent, you then have to look back at the contracts/TOS between NSI and Snapnames, NSI and the original owner, and snapnames and the new owner. If that doesn't call for reversal of the sale, then the option to the original owner would be damages which if won could be used to acquire the domain back or a similar replacement. My first guess is that it's not an NSI error, but more like a spam filter error or lack of verifying that a renewal actually was acknowledged. I've lost a couple domains myself because a renewal didn't process correctly, but I failed to verify the renewal and the failure notice was filtered as spam. In my case, I sucked it up and realized I should have followed through better in verification.

From what I've read so far, I think they are grasping at straws at this point by making threats. However, every action at this point is extremely important to think through carefully.

 

[gmansky]

I would wait for NSI response. It could just be a scare tactic by the other party. Or, it could be scammers. As far as I know, you are the rightful owner if the domain register accepted your registration. I coud be wrong.

 

[Dave_Z]

I believe if they had a case, it would be against NSI for negligence.

http://www.networksolutions.com/legal/static-service-agreement.jsp#domains

Network Solutions shall have no liability to you or any third party in connection with the renewal as described herein, including, but not limited to, any failure or errors in renewing the services.

And:

EXCLUSIVE REMEDY; TIME LIMITATION ON FILING ANY CLAIM. YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY NETWORK SOLUTIONS SERVICE(S) PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL NETWORK SOLUTIONS, ITS LICENSORS AND CONTRACTORS (INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES PROVIDING SERVICES AS PART OF THE SUBSCRIPTION SERVICE FOR WEBSITES FROM NETWORK SOLUTIONS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF NETWORK SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN NETWORK SOLUTIONS'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES.

Anyway, it's the other party's problem.

 

[jberryhill]

http://www.wipo.int/amc/en/domains/decisions/html/2002/d2002-1167.html

Whilst the Panel is sympathetic to the plight of Complainant in light of the evidence in the record indicating that the disputed domain name was made available for registration after Complainant’s renewal payment apparently was paid and after Complainant was informed that its registration had been renewed, Respondent is not shown to have been responsible for that conduct.

 

[PowerUp]

If it is Netsol's negligence, then Netsol should compensate the old owner an amount equal to the market value of the domain in dispute.

 

[jberryhill]

Netsol should compensate the old owner

Of all of the things that domainers read, it remains a constant that nobody reads their registrar service agreements.

 

[Spade]

Considering all of the suggestions, I am forced to simply wait for a response. I will follow up with Network Solutions again, If I dont hear back today.

 

[Domagon]

From what you've described, it appears the domain didn't go though a complete "drop" cycle ... thus it's quite possible you will lose the domain...

If it's a domain worth keeping, get professional legal assistance ASAP!

Otherwise, email Snapnames and indicate you wish to relinguish the domain for a complete refund your money due to the circumstances; unclear ownership. If Snapnames refuses to do so, then they too will potentially become a party to litigation, if the prior registrant chooses to fight it out.

In my view, if I were in such a situation, assuming the prior registrant had filed a complaint with their registrar / ICANN within 30 days or so of the transfer date (it was never truly deleted), I'd likely relinguish such a domain.

Bottom line, in my view, your situation is not a slamdunk, since the domain didn't go through a complete "drop" cycle; the timeline of events will matter ... ie. when was the prior registrant notified, how were they notified, did they pay renewal, do they have a receipt, etc.

Ron

 

[Spade]

Update

I had not heard anything today from anyone (Original registrant or NetSol) So I decided to call Network Solututions up to see if I could get in touch with their legal department.

I spoke with a supervisor and he sent a request to there review department and within a few hours I had recieved a response from NetSol:

Dear Justin Allen,

Thank you for contacting Network Solutions Quality Processing Department. We are committed to creating the best Customer experience possible and to handling your recent request quickly and efficiently.

Please be advised that the domain name DOMAINNAME.com went through the expiration and deletion cycle as set forth in our terms and conditions. If you have any further questions regarding the validity of your backorder, you will want to contact Snap Names directly. You can find their contact information by visiting their site on www.snapnames.com.

We hope this information has been helpful and apologize for any inconvenience this issue may have caused. If you have any additional questions, please don't hesitate to contact our Customer Service Department.

As a Network Solutions Customer, you are entitled to unlimited access, day or night, to technically skilled Customer service representatives who are dedicated to delivering any level of support you may need. To reach us, call 1-888-642-9675. If you are calling from outside the U.S. or Canada, please call 1-570-708-8788. Or, e-mail us at [email protected].

If you do need to contact us to discuss this issue further, please refer to Service Request # (Serial #)

Sincerely,

(Customer Service Reps Name)
Quality Processing Specialist
Network Solutions

So, I forwarded this email with the following message to the original owner:

Mr Last Name,

Since your email on Friday, I had moved the DNS of the DOMAINNAME.com domain name to an empty hosting space as a precaution. I responded to your email on Friday back to You, Network Solutions Legal Department, as well as ICANN. I had not heard back from any of them as of this morning. This afternoon I made an additional phone call where I eventually got hold of a Manager and explained the situation. He submitted the domain name for review from a special department and I just received the following response from that review below.

Sincerely,
Justin Allen
Delicious Domains LLC

So, later this afternoon I recieved the following response:

No, I don't think I'm going to win this one. I've had the domain name for the past decade and due to email changes over ten years and Network Solutions incompetence in completely dropping the renewal ball (and yet taking no responsibility for their errors), it looks like it may be lost to me. Quite honestly, it's a blow to my business which is legally registered as DOMAINNAME.com. Unless you are felling generous and want to sell/release it back, all I would ask that you do not use it as a website promotion site so that it does not infringe on my business.

Many thanks for your patience and understanding. I truly appreciate it.

Cheers!
First Name

So, it appears the situation has been defused. However, I will not likely offer the domain name back to the original owner as I would not want to leave the impression that I am extorting him. As I believe it is worth several thousand dollars.

I will update with my response to this email when I decide how to respond.

From what you've described, it appears the domain didn't go though a complete "drop" cycle ... thus it's quite possible you will lose the domain...

Ron,

The reason this occured was because Network Solutions has a partenership with Snap. Instead of allowing domain names to do a true drop, NetSol simply renews them if someone has them backordered at Snap. Technically they dont drop, however the cycle is completed in the same timeframe.

Justin

 

[Domagon]

Interesting ... appears you really lucked out on this one, since the prior registrant is basically acknowledging you as truly being the new registrant; admits their lack of diligence to keep their email updated, etc.

Based on that, in my view, definitely keep the domain, and not correspond anymore with the prior registrant ... however, if you have the urge to respond, then perhaps keep it to something like "Thank you. This matter is closed.".

Just because the "drop" took the same amount of time, doesn't make it a complete drop-cycle ... essentially NSI transferred the domain from the prior registrant to you via Snapnames. That can matter - I've read people losing domains in similar instances to yours, which is why I brought the drop-cycle issue up.

Ron

 

[PowerUp]

No, I don't think I'm going to win this one. I've had the domain name for the past decade and due to email changes over ten years and Network Solutions incompetence in completely dropping the renewal ball (and yet taking no responsibility for their errors), it looks like it may be lost to me. Quite honestly, it's a blow to my business which is legally registered as DOMAINNAME.com. Unless you are felling generous and want to sell/release it back, all I would ask that you do not use it as a website promotion site so that it does not infringe on my business.

Many thanks for your patience and understanding. I truly appreciate it.

Cheers!
First Name

What can you use it for if you cannot promote your website? Can you even park it?

 

[Spade]

What can you use it for if you cannot promote your website? Can you even park it?

Well... this is a request, nothing more and the truth is - its more than likely the domain will be used in a very similar type business, probable in SEO or even generic Marketing.

 

[Dave_Z]

Of all of the things that domainers read, it remains a constant that nobody reads their registrar service agreements.

To think I pointed out the specific provision in one of my posts here regarding
holding NSI liable for something like this. So much for that.

Good to know the situation appears diffused, Justin. Time to move along.

 

[Spade]

Good to know the situation appears diffused, Justin. Time to move along.

Agreed. Thanks

 

[DotWeekly]

Wow, this was a glorified situation. Think if this happened to even half of the drops per day. lol

Just like from the start Justin, with no TM for the generic term, use the domain as you wish.

 

[barcode]

Just saw this topic, and thought would put in my two cents!

If this name is generic, and you'd like to sell - you could put this for auction, and let Mr.Old Owner bid.

If the domain is important for him, he'd buy - and your 'conscience' remains clear - LOL

Great to hear that reasonable people exist to this date!

Good luck!

 

[liquidcherry]

Heya.....

Justin, If you would use the DN in a similar business and the former owner really registered this domain as business name and did business as domainname.com.....aren't you infringing then because of his long term usage and established TM through this usage?(please enlighten me, gods of the TM world) :hehe:

I am just asking because i am in a similar situation with my business name beeing my domain name (gotta go and renew for the next 10 years!!)

Cheers,

Frank

 

[Spade]

Frank,

In this case, the original owner, changed the name of his operating website to something different. I will create a similar set of domain names for this discussion.

Lets say back in 97 he started his business under the domain - GetVisitors.com and operated that way until 2003 when he changed the name to GetHits.com - he forwarded GetVisitors and all was well till 2007 when he failed to redeem GetVisitors.com

The term is generic, applies to a wide range of Business Marketing / Online marketing. And although I imagine he doenst want this to be parked or to a similar website, I believe the term is generic enough and hasnt truely been used as his business in years. Now, im not a lawyer, and perhaps i could be fought on this one, but the original registrant has not contacted me since his last email some time ago, and I am content moving past this.

Justin

 

[liquidcherry]

Hi,

Thx for the insight....and all what i can say is: Congrats!!

Time to move on then

Cheers,

Frank