Dictionary words

[aswinstanley]

I have an offer for fierce (eu) from a company in New Zealand. I was wondering if I should approach other companies with the word 'fierce' in their title to see if they would like the name. However would there be any legal issues regarding trademarks if I did this, even though it is a dictionary word that can be used in many situations?

Help very much appreciated.

Adam.

 

[evertonian7uk]

how is the offer you've already recieved??

i see the page is parked, has you researched this NZ company? do they have the word fierce in there sites etc....they could be using this to prove bad faith, they could just be looking to buy it, research them first, see what they do etc....

 

[aswinstanley]

they are software developers:

http://www.fierce.co.nz/Menu.htm

They do have the word in the name! Lots of other companies and organisations have the word in their name too, I have found:

http://www.fierceinc.com
http://www.thefutureisfierce.com
http://www.fiercewireless.com/
http://www.companyfierce.co.uk
http://fierce.com
http://www.fierceperformanceproductions.com

just a few from a google search.

They have offered me $150 for it. But maybe I could contact these others to see if they would bid at auction? I am just wary of trademark issues.

 

[akcampbell]

Provided you don't provide ad links to other software companies who they compete against or develop a site that competes against them, I don't think you will have a problem.

If they are a company, you could get $1,500 for it easily. Counter at $3,000 and see what they say.

If you are negotiating a domain sale, I wouldn't write the name on Namepros in full, write something like fierce (eu) in case this page gets indexed and the NZ company finds it. It might help them gauge what you would accept for the name.

 

[evertonian7uk]

this page doesnt get indexed at all.

how do you justify saying he could get $1500 easily? the name is worth what is worth nothing more, just because they are a company doesnt mean they'll pay over the odds, i would suggest if you do reply that you dont turn this into an auction, if one of the companies deem this as infringing on there TM you could lose the name all together, if you really want to sell it, work with the people who've made you an offer, why run the risk of a tm violation with one of them?

 

[aswinstanley]

mmmm pretty conflicting info. I already have contacted others to see if they are interested. I will just email the company and say that it is not for sale. I have removed it from parking so I cant see a TM dispute happening - its an adjective commonly used in many companies. At least I hope so!

 

[evertonian7uk]

just because you un-parked it doesnt mean they cant see that you did it, im not suggesting your in TM violation here, mearly pointing out that if you invite other compaines to bid on the name you could end up with one of them saying its there TM, you have an offer run with it and hopefully you get a good deal from it, my point was you shouldnt try to get comapines to bid against eachother, just incase.

 

[akcampbell]

Things are not worth what they are worth, they are worth what people will pay. iReport.com on paper wasn't worth $750,000 but that's what somebody paid for it. If a company in NZ called Fierce wants a generic domain Fierce.eu, presumably because they want a European website, I'd say the owner is in the driving seat. I picked $1,500 after looking at .eu historical sales on dnsaleprice.com, I also like that number because it's how much it costs to try to recover a domain through the UDRP even assuming you represent yourself legally. I'd still counter at $3,000 and see how that goes. When you are negotiating a sale and know the identity of the bidder, you can always go back and sell at the lower price so you might as well test the water. They might be prepared to pay twice your counteroffer and bite your fingers off.

 

[evertonian7uk]

maybe this comapny are testing him, perhaps there wanting him to come back with that high offer to show bad faith?

wouldnt it be more advisable to contact them back and say something along the lines of i have plans for the developement of this domain and wasnt looking to sell, but i would consider offers that meet my valuation and leave it at that.

i checked a few appraisals (all be it auto ones) and they all show around $150 mark, if your going to counter, be sure its not going to be used against you, think like the bad guy, give them nothing, ask them to make the moves as far as money is concerned.

 

[aswinstanley]

excellent advice, thanks. I will respond sensibly and let you know the response.

 

[akcampbell]

Normally, I would agree that it doesn't make sense to counterbid with a firm price but there are several issues here that would count in favour of the seller;

1) It will cost more to make a UDRP claim than the seller is likely to want for the name.
2) Fierce is a generic word used by many different companies.
3) Fierce is not a famous brand.
4) The bidder is actually called Fierce Systems, not Fierce on its own, so they wouldn't be able to prove a right to use.

 

[aswinstanley]

Ok unfortunately this took a turn for the worse:

I emailed the buyer saying:

Grant Lawrence,

I have had time for careful reflection and sought advice on the value of the fierce.eu which I now believe to be worth considerably more than your offer. I also have some plans for development of this domain so I would rather not sell. However I would consider offers that meet my revised valuation.

Regards,

Adam WInstanley.

He emailed me back saying:

Sorry Adam,



You have a binding contract for the sale of this domain. This is why I accepted your counter-offer.



I will take this up with domainparking.co.uk if you try to back out of this deal. Please note that if you try to do this, you will also have legal fees coming your way.



Regards



Grant Lawrence

FIERCE SYSTEMS LTD

It seems he is Fierce by nature and by name! Domainparking.co.uk is where the domain was parked and I didn't realise that I was going into a legal agreement by communicating with him this way. The original offer he accepted is $150. Do I now have to sell it? I think he obviously wants it bad. The rules in the parking site are as follows:

5. Buying a Domain Name.

When making an offer on a domain name using the domainparking.co.uk system, you are automatically entering into a legal binding contract to purchase the domain if your bid is accepted by the seller or if the seller responds with a counter offer to which you accept. Domainparking.co.uk (Domain Parking International LLP) will not be liable for any domain name purchased or sold via the domainparking.co.uk Site. Further note that all domain name sales / purchases made via the domainparking.co.uk Site are strictly between the buyer and seller, any legal matter will need to be resolved by the parties involved e.g. buyer or seller, and not that of Domainparking.co.uk (Domain Parking International LLP). The domainparking.co.uk policy requires the buyer to make payment for any domain they have committed to purchase. If the buyer refuses to complete the transaction accepted by the seller, then potentially they are liable to the seller for breach of contract to which both parties have agreed upon. We suggest you think very carefully when buying a domain as domainparking.co.uk will not be held liable.

6. Selling a Domain Name.

If you accept an offer which has been made on your domain name via the domainparking.co.uk system, you are automatically entering into a legal binding contract to sell the domain. Domainparking.co.uk (Domain Parking International LLP) will not be liable for any domain name purchased or sold via the domainparking.co.uk Site. Further note that all domain name sales / purchases made via the domainparking.co.uk Site are strictly between the buyer and seller, any legal matter will need to be resolved by the parties involved e.g. buyer or seller, and not that of Domainparking.co.uk (Domain Parking International LLP). The domainparking.co.uk policy requires the seller to complete the transaction. If the seller refuses to complete the transaction, then potentially they are liable to the buyer for breach of contract to which both parties have agreed upon. We suggest you think very carefully when selling a domain name as domainparking.co.uk will not be held liable.

It looks like I am in breach of contract if I don't sell it to him. I really hope someone can help! Otherwise I will have to give up the domain.

Cheers,

Adam.

 

[Name Trader]

Nowhere in this thread have you mentioned you had accepted their offer. Yep. you're in a binding contract. It's up to the buyer what they want to do about it. But if I were you, I'd sell them the domain at the agreed price.

 

[flamewalker]

Further note that all domain name sales / purchases made via the domainparking.co.uk Site are strictly between the buyer and seller, any legal matter will need to be resolved by the parties involved e.g. buyer or seller, and not that of Domainparking.co.uk (Domain Parking International LLP).
...
We suggest you think very carefully when selling a domain name as domainparking.co.uk will not be held liable.

Did YOU accept the offer? YOU have to accept the bid... doesn't mean you have to accept ANY offer no matter what... Also it is very difficult to enforce those rules and would be very costly for the parking company... unless you registered the domain there as well.

Also they state that any legal proceedings will be between you and the seller... not them at any point. They are simply providing a means to allow you to connect with a seller, and will not likely do or be able to do anything to enforce a sale. All they could do is close your account there.

In this case, Fierce Systems would have to sue you in court. They have no TM claims on the name (I haven't done any investigation so i could be wrong here), so likely won't win a UDRP (minimum $5k if they use a lawyer).

Basically it would cost them way more than the name is worth to be able to wrest it from you by legal means. And, if you have not accepted any offers, then they have no ground to stand on.

EDIT: He mentioned he accepted your counter offer... so did he offer, you countered, and he accepted? If so, then technically he is correct, however the parking site clearly says they will not be involved in any legal dispute, and he will have to come after you directly for the name or money (read: very expensive).

 

[Ronald Regging]

It sounds like they originally offered you $50 for it or somewhere around there and you countered with $150 and they accepted your offer. If that is the case, you should sell it for what you agreed upon. It's your responsibility to know the value of your names before you agree to a price. If you back out, it's more than likely just going to make them angry and if they are a big enough company, they might just sue you for the hell of it, because they can.

However, if you didn't already agree to a price, than they have no rights.

 

[flamewalker]

As far as the 'big enough' part... looking at their website, my initial guess would be 'no' :p

(of coarse a website doesn't mean how much they make but if they really are making money one would think they would have a professional website.)

 

[akcampbell]

The threat of legal bills coming your way is an empty one, these guys don't even have a proper business address. However, you entered into a legally binding contract by the sound of it so you should honour it.

 

[evertonian7uk]

wow you failed to mention in your OP that you had accepted an offer lol.

now it all depends on you, do the right thing and sell, or hold out for more cash, all depends on what you value the name at.

 

[aswinstanley]

Yes unfortunately I did accept the $150 offer he countered within the parking website. I was stupid! I'll have to put this down to a learning experience and let him have the domain at that price. Even though it is obviously worth more to him. I hadn't realized I was entering a legal agreement - the process was so basic and crude with no caveat's. Plus I was on holiday when I accepted it in an internet cafe in scorching hot sun - mental note - never do business on holiday.

Do you think I should just push the domain and use paypal or use escrow services?

Thank you all for the help - I am learning - but hey I have still made 75 times the reg fee I paid for it ($2). Not a bad return if I can do that more often.

 

[flamewalker]

Lol not a bad return at all.

Live and learn. I would use escrow if you care about reducing the chance of being ripped off. There would generally be less likelihood of that with a company but seeing as they don't seem very big... I would stick with escrow.

EDIT: DO NOT push first!

He has to pay the fees though... then if he says no and backs out, you are clear, and technically you could go after HIM for breach of contract lol... (not that you would).