Cease and Desist sent by email - valid?

[Azam.biz]

Cease and Desist sent by email - how to respond

Just received a Cease and Desist letter saying we have to stop using a .eu domain name (just a landing page at the moment - and gets about one visitor a month). Even though it is two generic words and the case is arguable, I haven't got the money or time to take onboard their nasty-sounding lawyers. Still, I think they are idiots for not bothering to apply for any .eu domains they feel they had rights over when the mechanisms were in place. I acquired the domain name in Landrush.

They are only agreeing to pay the transfer fee. There was so much competition for .eu domain names, I had to sweat so hard to get the ones I did. I only got about 0.1% of the domains I tried to register. Do you think it's worth asking them for something above and beyond the transfer fee?

I thought of doing this by telephoning them, so that they don't have any written documention which they can present and say we are CyberSquatters.

I am in no position to fight them in the arbitration court over control of the domain and realise I will lose it, but obviously want to make some money for the time and hassle.

If they take it to the Czech .eu arbitration court, it will cost them about €2,000 + fees for their lawyers.

Say I didn't agree to transfer the domain name to them for just the transfer fee and they took me to the Czech .eu arbitration court. Is it common for companies in this position to try to redeem their legal fees from the person they acquire the domain name from?

Thanks a million.

 

[Damion]

I would not call them if i where you since they could record the conversation.
It can also be a scare tactic from their side.

Could you perhaps PM me the domain in question Azam? This provides more insight of the legality of their claim.

 

[DNQuest.com]

I would not call them if i where you since they could record the conversation.
It can also be a scare tactic from their side.

QUOTE]

Recording phone calls is agaisnt the law.

Yes, email C+Ds are valid (I hope we don't get into this arguement again). Unfortunately, the vagueness of the domain will only get vague answers. You say 2 generic words, but do these two generic words have a specific meaning when put together (IE- windows explorer, apple records, apple computers)? Is it a company or product when you put these two words together?

The domain game is about risk/reward. Whether we like it or not, many names could have a TM on it. It is the usage of the domain that makes it illegal. Parking pages will not help you if challenged for 2 reasons 1 - Could have competitors links on the page. 2 - Does not establish your rights to the domain.

As far as asking for money, that could also be a sign of bad faith. I understand that you want to make money, but there are laws which we must abide by. If you break those laws, you do not deserve a thing. That is one thing domainers must realize. Do companies payoff squatters, yes. Is there a right way and a wrong way to approach these companies. Yes.

 

[ripley]

I would not call them if i where you since they could record the conversation.
It can also be a scare tactic from their side.

QUOTE]

Recording phone calls is agaisnt the law.

Depends. In the U.S., it depends on the state. In Texas, for instance, one person must know that the call is being recorded (obviously, the recorder). Other states require both people know. It just depends on the local laws where both are located. In the US, most state wiretapping laws are intended to protect the conversants from being recorded by a third party without their knowledge, not from preventing one of the conversants from recording a conversation in which he participated.

ripley.

 

[Damion]

I would not call them if i where you since they could record the conversation.
It can also be a scare tactic from their side.

QUOTE]

Recording phone calls is agaisnt the law.

I did not know this Phil, even though it may not be legal, the better safe then sorry approach would be the most appropriate route to take

 

[ripley]

I did not know this Phil, even though it may not be legal, the better safe then sorry approach would be the most appropriate route to take

Read my post above -- in most U.S. states anyway, recording phone calls (within certain limits, depending on the state) is NOT against the law.

ripley.

 

[Damion]

I understand Ripley but also in some states it is not

Once again better safe then sorry right?
I am not even sure how the law in the U.K. treats this type of practices since Azam is from the U.K. if i am not mistaken.

 

[ripley]

I understand Ripley but also in some states it is not

Once again better safe then sorry right?
I am not even sure how the law in the U.K. treats this type of practices since Azam is from the U.K. if i am not mistaken.

Yes, absolutely! Much better safe than sorry which was my point. I didn't want to see him calling somewhere thinking the law made him safe from having it recorded, when in fact it could well be exactly the opposite.

ripley.

 

[namethreads.com]

You can do a quick check at whois.net to see if it is a trademark.

You could then have a discussion with the company explaining that it was a lot of work for you to register the domain, you want to keep it and you don't want to give it to them for reg fee and see what they say.

 

[godinu]

DNQuest is right on point. If the 2 generic words put together are a trademark, and if you yourself have no real "claim" to the terms, you would have a hard time proving to ICANN why you deserve that name more than the other party. If that company had no claim to the name either -- for instance, if the name was "running shoes" -- that would be another story. But then they probably wouldn't have sent a cease and desist. They would have simply offered to buy the domain from you.

 

[dhscott]

Do they own the .com? If not, I would think it's someone trying to scare you into giving it to them

 

[fonzie_007]

The difficulty of email C&D's is that they are hard to prove that they were ever received. Sending via FedEx or certified mail would be preferrable. Notwithstanding this fact, you should take the situation seriously and protect yourself. I would encourage you to read and understand what the claimant needs to prove in order to win arbitration against you. Once you know what they have to prove, start picking out the weakest parts in their case and exploit them. I'd recommend that you don't transfer your domain (cyber flee) or engage in other behavior that may work against you if you go to arbitration.

 

[labrocca]

Even though it is two generic words and the case is arguable

Then argue with them. It seems the domain is fairly worthless to you but worth something to them. imho a personal phone call would be the most fruitful. See if the person on the other line is all business and can openly discuss a resolution to the matter. Be careful about your words. Say stuff like

"I don't feel you have a valid TM for this domain"
"I would consider any offers you have to resolve this matter to both our satisfaction"

Anyways....goodluck and don't just roll over. PM me the domain name if you get a chance.

 

[jkotinis]

Even not a lawyer, I would say that unless there is a TM ( an EU Community one, not US or others) or a well known brand behind that name , you could have many chances to win the ADR.

Check other extensions , especially in europe ( .de,.fr,.co.uk,.nl etc) and also try to find if this compination of names together can be found as a company or brand or product from different entities.

If for example is so specific all around globe for one corporation, then I think it's a lost case. But if there are at least more than 2,3 different entities with the same name in EU, then I think it's something you can fight for.

But as I learned in the recent past, for whatever reason, don't ask them for money. For any reason, you shouldn't show bad faith in registering the domain.

Also if they had a TM, they should have applied for this before the landrush.
If you did apply also with a TM , then at least try to avoid content or PPC from the obvious meaning of the word
If you got it in landrush, then it's their fault that didn't act early , but that doen't mean that you should own the domain either
There is always the reason of reverse hijacking you should be aware of...

And the most official answer for sure will come from a domain lawyer....

rgrds

 

[tricolorro]

QUOTE]Recording phone calls is agaisnt the law.[/QUOTE]


:hi:

Not necessarily.

Only 11 States require two party notification.

Here's a site that gives a pretty good rundown on Telephone Recording Laws.

http://snurl.com/CallRecording

Patrick

 

[DNQuest.com]

Pardon my ignorance, I live in Maryland and thought it was a federal law with both parties consenting. I guess I need to move to a better state

"The difficulty of email C&D's is that they are hard to prove that they were ever received."

I do get tired of hearing this. Lying about receiving an email and then proven you did will hurt (emails CAN be tracked).

 

[labrocca]

:hi:

Not necessarily.

Only 11 States require two party notification.

Here's a site that gives a pretty good rundown on Telephone Recording Laws.

http://snurl.com/CallRecording

Patrick

Great link rep added for that.

 

[AdoptableDomains]

It appears here that the registrant is in the UK, and the C&D writer is Czech. US law would have absolutely no bearing on recording of calls. Even UK law may have no bearing, depending on where the legal jurisdiction is located. Regardless of that, calling is not a good enough way to protect against the conversation being used against you.

My advice is to either decide you have enough of a case to defend the domain as generic and not under any circumstances agree to sell it to them, or decide you are going to lose and make the best of it.

If you decide to defend, be prepared to do some research on the genericness and reply that it is NOT for sale. Don't ask for payment if you want to keep it.

If you decide you would lose a disupute case, then it can't hurt to ask for your full costs, just keep them reasonable and under what it would cost them to file. I'd still try to defend your generic position, just as bargaining power. However, if they want to get a decision on principal or make an example of you, you may get absolutely nothing. Your confidence in your position will probably help you decide.

Good luck.

 

[identity_00]

Have them pay and file a complaint with ICANN - if they get that far (and your only getting a couple visitors a day) I would give it to them.

Other than that just refer them to ICANN. Its their job to handle that domain stuff anyways. Your the customer and you just purchased a domain that was available.

 

[AdoptableDomains]

Have them pay and file a complaint with ICANN - if they get that far (and your only getting a couple visitors a day) I would give it to them.

Other than that just refer them to ICANN. Its their job to handle that domain stuff anyways. Your the customer and you just purchased a domain that was available.

.eu is considered a ccTLD, and is not under the direct control of ICANN. Disputes are under control of the European Commission, and not handled the same as gTLD disputes as I understand.