Negotiation Disclaimer

[Kenny]

Hello Mods and Mems,

What I'd like to discuss here... have any of you used any type of a Negotiation Disclaimer?
I've seen them before but never took the time to actually copy one.

What I'm talking about is, (just an example) you have a 3LLL com. A company approaches you with an offer. You go back and forth, lots of documented convo, and BAM, they file on you

Now we have seen this turn into a reverse hijack situation in the past.
It's been suggested that with an upfront disclaimer, ie, "any convo cannot be used in a case, etc.",you're safe.

Anyone have any examples of these types of disclaimers?

Peace,
Cyberian

 

[todaygold]

I'm not a lawyer, but I'm pretty sure that just emailing them upfront that they aren't allowed to use what you say in the email has no real standing. So I don't see it really being effective.

 

[Kenny]

That is not what I'm talking about.

Peace,
Cyberian

 

[usernamex]

Would love to know also.

 

[TheWatcher]

It a simple letting you know first statement. You can write your own negotiation disclaimer according to your terms.

 

[Ted.T]

This is the disclaimer I'm using,

"CONFIDENTIALITY NOTICE:
The contents of this email message and any attachments are intended solely for the addressee(s) and may contain confidential and/or privileged information and may be legally protected from disclosure. If you are not the intended recipient of this message or their agent, or if this message has been addressed to you in error, please immediately alert the sender by reply email and then delete this message and any attachments. If you are not the intended recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its attachments is strictly prohibited."

I think it could fit your question, as the message is confidential and not intended to be shown to third parties.

 

[Kenny]

Thanks Ted T,

But what I'm talking about would include something along the lines of "just because we are talking about the sale of this domain does not give you the right to use this convo against me in some udrp, reverse hijack, or any other kind of BS legal case.... but, you know, in lawyer speak. Dig?

@TheWatcher What I said there ^^^^
If you or anyone has an example of what they have used, or seen that they wouldn't mind posting, that would be cool.

Peace,
Cy

 

[Kuffy]

If they approach you first, I'm not sure what grounds they will have for starting a case against you.

I had a situation a few years ago. It seems that a guy had let a name drop that belonged to his girl friend. I picked it up, and was approached by his hosting company to see if I would let the name go. They were quite pleasant and friendly, and I said he could have the name for $25 - it wasn't that special. A day later I got an abusive and threatening email from the previous owner. I told him to get stuffed, and that he would never own the name again.

As far as I know, letting a name drop is evidence that you no longer have an interest in the name.

 

[Kenny]

Thanks Kuffy,

Still not quite what I'm talking about.

Peace,
Cy

 

[.NJ]

I don't think a pre-made one exist yet.

I'm sure a lawyer can draft one up in a couple min.

I'm going to look into this one.

I like the concept.

Kevin

 

[Ted.T]

OK, let's try to modify this disclaimer...

"The contents of this email message and any attachments are intended solely for the addressee(s) and may contain confidential and/or privileged information, may be legally protected from disclosure and cannot be considered as binding agreement or be used as evidence in a judicial or administrative proceeding. If you are not the intended recipient of this message or their agent, or if this message has been addressed to you in error, please immediately alert the sender by reply email and then delete this message and any attachments. If you are not the intended recipient, you are hereby notified that any use, dissemination, copying, or storage of this message or its attachments is strictly prohibited."

Some quick changes... Will think about it more when I get the chance to work in peace...

 

[johname]

Here is your disclaimer parking with Voodoo.com Person inquiring has to check this agreement before starting negotiations. Someone in the past won a UDRP by using something similar, so now people use a version of this.

By submitting this information, I agree to the Terms of Service and confirm that neither I, nor my organization, claims a legal right to the registration of the domain listed above. If I am inquiring on behalf of another entity, I confirm that this entity does not claim a legal right to the registration of the domain listed above and that I am authorized by such entity to make this representation

 

[DomainVP]

The best way to thwart a UDRP is to be careful of the language you use during negotiations. IMO.

If you do that, then no disclaimer will be needed.

 

[Kenny]

Ted T and JN,

Yea, now we're getting closer.
Maybe some other members have ideas about this, or already have one made up.
DVP, You are right, being careful is always prudent, but sometimes big boy lawyers can twist just about anything you say, or maybe you aren't aware of the circumstances to begin with and having a disclaimer up front couldn't hurt.

I just want to see if something could be put together that the members might be able to use.
A basic layout that can be modified to suit each individual as needed.

Peace,
Cy

 

[moe]

I think the legal clause for any negotiations is: Pending Final Mutual Agreement. (safe for both parties).

 

[todaygold]

So again, I'm not a lawyer, so maybe I'm off-base here, but if adding such a disclaimer to your email has no standing in a legal sense, what good is it? You can add whatever you want in your signature, but if it carries no weight, how is that going to help you?

 

[Kenny]

I think the legal clause for any negotiations is: Pending Final Mutual Agreement. (safe for both parties).

Thanks moe,
This is somewhat different than that. This isnt about closing a deal, it's trying to not get your domain highjacked by tricky lawyers in the middle of what you thought was a deal.

So again, I'm not a lawyer, so maybe I'm off-base here, but if adding such a disclaimer to your email has no standing in a legal sense, what good is it? You can add whatever you want in your signature, but if it carries no weight, how is that going to help you?

Thanks todaygold,
I think because somewhere in there it says something like " by replying to or continuing this convo, you pinky swear not to file a udrp"... but again, in legal jargon.
Or maybe they have to virtually sign it, I don't know.
That's what I'm trying to get to here.

I do in fact know they exist.
How well they CYA, that would be something JB or maybe even @Dave_Z could answer..

Peace,
Cy

 

[Julio]

I had this on my mind for a while now. Just like when you call/or get a call from a business "This call is being recorded..." I want to add to emails "This email is being archive for future...".

I want to add a disclaimer like that in emails that I receive about my domain names.

 

[todaygold]

I had this on my mind for a while now. Just like when you call/or get a call from a business "This call is being recorded..." I want to add to emails "This email is being archive for future...".

I want to add a disclaimer like that in emails that I receive about my domain names.

I think that's kind of comparing apples to oranges. With phone calls, no one expects them to be recorded in general because they are a live form of communication, which is why many companies and even some state laws require notice about it. With emails, I would say most people know that the email is going to stay in the persons inbox for a long time, possibly forever...because it's not a live communication, a message has to be sent and stored for email to work, unlike with a phone call.

 

[jberryhill]

Anyone have any examples of these types of disclaimers?

This is a wheel which gets re-invented by domainers time and time again. Every now and then, someone comes up with the idea that there is some magic legal voodoo token which will ward off UDRP complaints.

Short answer - it's a waste of time.

Longer answer - UDRP panels have used this sort of thing to argue that the domain registrant was a cybersquatter, thus having the exact opposite effect from that intended.

This is like the dumb "legal notices" that are used in online prostitution advertising.... "By contacting me, you agree that you are not law enforcement, and that you are not soliciting prostitution." Yeah, right. The only thing that does is scream "This is a prostitution ad."

These things always remind me of how small children "hide" by putting their hands over their faces, thinking that if they can't see you, then you can't see them. It looks about as sophisticated as well.

So, let's say you follow the suggestion above, and put this in your emailed attempt to unilaterally impose some kind of binding condition on the other side, and say your communications:

"cannot be considered as binding agreement or be used as evidence in a judicial or administrative proceeding."

Okay, fine. Now they go and file a UDRP and include all the communications. What happens? Does lightning come down from the sky and strike them dead? No. There are no "UDRP Rules of Evidence". The same Panel which is going to decide whether to "consider" those communications is the same Panel which is going to rule on the case. It's not as if they are going to "unsee" the evidence, and it is not at all comparable to a court proceeding in which a judge decides whether the jury is going to see a piece of evidence or not.

If you have a name like, say, BudweiserBeers.tld, it's not going to make a smidgeon of difference to a panel whether or not you have some magic incantation in your emails or on your site.

Oh, incidentally, by reading this post, you hereby agree to pick me up some sandwiches and beer, and send over someone to give me a foot massage. That condition on this post is about as practically effective for your emails in the situation you are describing.

A much, much better approach is to build your defense into your reply in the first place. For example, you have the domain name MyCat.tld. You get an email asking about the name. You reply with a price, and then you find out that the inquirer was representing the Caterpillar equipment company and they file a UDRP.

You'd be much better off if your reply stated, upfront, "I think this is a great name for selling cat care products or other subjects having to do with cats..." and then go on to what you would want for it. By doing that, you've "built in" the defense to the UDRP and they aren't going to want to use your email as evidence. In fact, if they don't, then you get to point out that they left out the part where you were going on about why it's a valuable domain name.

You can see this sort of thing in action in this dispute:

http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2014-1057

In the present case, there had been correspondence between the parties before the Complaint was filed. The Complainant has relied on part of that correspondence – an offer for sale – to try and establish bad faith on the part of the Respondent. In this Panel’s view, that offer did not assist the Complainant because the disputed domain name has value independently of its significance as the Complainant’s trademark. That is, it has value because it is the name of a popular tourist destination and, as the Panel has found above, the Respondent did not register the disputed domain name in bad faith.


The Respondent points to a different part of that correspondence. On March 21, 2014, the Respondent (or its broker) sent an electronic message to the Complainant seeking to justify its position:


“I am sorry we were unable to come to agreement about this domain name. ‘Puket’ is a common spelling of a well-known resort island in Thailand, and the owner has used the domain name to advertise Thailand travel for a very long time. The owner does not believe use of the domain name as a common geographic indicator has anything to do with your claimed trademark, and looks forward to addressing your UDRP complaint if necessary.”

If you are concerned about your communications during a negotiation being used as evidence, then think about that for a moment. You are generating the evidence. You get to decide what is IN that evidence when you write it. Rather than engaging in a futile, pointless and ultimately counterproductive exercise to avoid the use of your communications as evidence, then what you should be doing is thinking about what you want that record to look like instead of how you intend to argue that the Panel shouldn't pay any attention to what's been put under their noses.

Finally, hurry up with those sandwiches.

 

[todaygold]

This is a wheel which gets re-invented by domainers time and time again. Every now and then, someone comes up with the idea that there is some magic legal voodoo token which will ward off UDRP complaints.

Short answer - it's a waste of time.

Longer answer - UDRP panels have used this sort of thing to argue that the domain registrant was a cybersquatter, thus having the exact opposite effect from that intended.

This is like the dumb "legal notices" that are used in online prostitution advertising.... "By contacting me, you agree that you are not law enforcement, and that you are not soliciting prostitution." Yeah, right. The only thing that does is scream "This is a prostitution ad."

These things always remind me of how small children "hide" by putting their hands over their faces, thinking that if they can't see you, then you can't see them. It looks about as sophisticated as well.

So, let's say you follow the suggestion above, and put this in your emailed attempt to unilaterally impose some kind of binding condition on the other side, and say your communications:

"cannot be considered as binding agreement or be used as evidence in a judicial or administrative proceeding."

Okay, fine. Now they go and file a UDRP and include all the communications. What happens? Does lightning come down from the sky and strike them dead? No. There are no "UDRP Rules of Evidence". The same Panel which is going to decide whether to "consider" those communications is the same Panel which is going to rule on the case. It's not as if they are going to "unsee" the evidence, and it is not at all comparable to a court proceeding in which a judge decides whether the jury is going to see a piece of evidence or not.

If you have a name like, say, BudweiserBeers.tld, it's not going to make a smidgeon of difference to a panel whether or not you have some magic incantation in your emails or on your site.

Oh, incidentally, by reading this post, you hereby agree to pick me up some sandwiches and beer, and send over someone to give me a foot massage. That condition on this post is about as practically effective for your emails in the situation you are describing.

A much, much better approach is to build your defense into your reply in the first place. For example, you have the domain name MyCat.tld. You get an email asking about the name. You reply with a price, and then you find out that the inquirer was representing the Caterpillar equipment company and they file a UDRP.

You'd be much better off if your reply stated, upfront, "I think this is a great name for selling cat care products or other subjects having to do with cats..." and then go on to what you would want for it. By doing that, you've "built in" the defense to the UDRP and they aren't going to want to use your email as evidence. In fact, if they don't, then you get to point out that they left out the part where you were going on about why it's a valuable domain name.

You can see this sort of thing in action in this dispute:



In the present case, there had been correspondence between the parties before the Complaint was filed. The Complainant has relied on part of that correspondence – an offer for sale – to try and establish bad faith on the part of the Respondent. In this Panel’s view, that offer did not assist the Complainant because the disputed domain name has value independently of its significance as the Complainant’s trademark. That is, it has value because it is the name of a popular tourist destination and, as the Panel has found above, the Respondent did not register the disputed domain name in bad faith.


The Respondent points to a different part of that correspondence. On March 21, 2014, the Respondent (or its broker) sent an electronic message to the Complainant seeking to justify its position:


“I am sorry we were unable to come to agreement about this domain name. ‘Puket’ is a common spelling of a well-known resort island in Thailand, and the owner has used the domain name to advertise Thailand travel for a very long time. The owner does not believe use of the domain name as a common geographic indicator has anything to do with your claimed trademark, and looks forward to addressing your UDRP complaint if necessary.”

If you are concerned about your communications during a negotiation being used as evidence, then think about that for a moment. You are generating the evidence. You get to decide what is IN that evidence when you write it. Rather than engaging in a futile, pointless and ultimately counterproductive exercise to avoid the use of your communications as evidence, then what you should be doing is thinking about what you want that record to look like instead of how you intend to argue that the Panel shouldn't pay any attention to what's been put under their noses.

Finally, hurry up with those sandwiches.

A bit long winded, but I agree 100%.

 

[biggie]

well put, Sir!

and

Thanks

imo...

 

[Kenny]

Thanks for stepping in Mr. Berryhill.
My question was geared more toward your MyCat example than the BudBeers example.
In any case, I, and the community as a whole, appreciate your time in giving such a detailed explanation.
So bottom line, don't bother. Gotcha.

Peace,
Cyberian

Oh yea, and the masseuse is on her way, with the sandwiches. Dill pickles, right?

 

[deez007]

How about something included in your existing email signature disclaimer with a line something along the lines of:

"The contents of this email can not under any circumstances be used to form part of a legal case or legal dispute of any nature against the sender or the company represented on this email"

Edit: My bad, I only say the detailed kick @ss response from My Berryhill now

 

[biggie]

i think a great defensive example was presented, should you feel the need to use one and if you have a domain that fits similar scenario:

where you're not really being defensive, but the statements of "generic usage" serve as... in a benign way, that position - to the aggressor... where it ( the email negotiation) cannot be presented as evidence of infringement.


at least that's what i got out of it for "incoming inquires".




imo....