Splitting Hairs with Flippa

[N-A]

Over the years, I’ve pointed out several instances where Flippa has allowed questionable domain names to be a part of their featured auctions; there is no need to scour their entire listing to point out the rest as it’s commonly known that the place is plagued with them already.

Though, to be fair on Flippa, many of the other marketplaces don’t do a very good job at vetting trademark domains as well (with the exception of Sedo's automatic system). However, unlike other marketplaces, Flippa charges a listing fee for any domain that is added. This can be anywhere from $9 to $326(+/-) with the use of upgrades.

I would expect with a listing fee, especially with an upgrade to include a picture in the listing, that Flippa would take the time to vet submissions to ensure a successful sale is possible to take place as they would also receive a commission on top of the listing fee.

If not for that reason mentioned, to prevent what I'm about to discuss.

There’s an auction running on Flippa now which just so happens to be Forbes.bio. Okay, we can argue left and right that it’s not a trademark and this and that it's not "because of what's right of the dot" (I've heard many times before). But, the fact of the matter is: It is a trademark, remarkably so when the seller uses Forbes’ logo in conjunction with their listing – an upgrade on its own.

With such a "proactive" Marketplace Integrity Team, one would think these types of listings wouldn't seep through the cracks. Though, it appears to be a frequent sighting these days. Have you given up, @FlippaDomains ?

More importantly, why should sellers continue to use a marketplace that, when it comes down to it, doesn't have their seller's best interest in mind?

 

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End users do NOT care that you have TiffanyJewels.com or iPhoneStuff.com - they care that you have the name that THEY want.

Perfectly valid opinion. In fact, as we both may already be aware, domainers dabble in TM names for type-in traffic and revenue. It's quite common in this industry.

The grey area here is when Flippa charges $9 to $350 for knowingly accepting a trademarked domain, along with the trademark holder's copyrighted logo as pointed out by @Kate, where things get messy for the buyer (or seller, but, that shouldn't be Flippa's main prerogative)

A TM holder is obligated to protect that TM and it's easy enough to send C&D letters.

Yes. Some TM holders do actively do this, and they do it by monitoring daily registrations and send out automated C&D emails. I've seen examples, so, take my word. The same companies also follow through with the C&D.

Now, imagine someone had bought and paid for the original post's example of Forbes.bio with its copyrighted logo which was represented to be the Forbes mark in the sales description itself for potential buyers to capitalise on.

Hold that thought for a moment and then tell me Flippa would not be responsible ethically (and maybe legally) for promoting that domain had the buyer gotten a C&D or had ultimately lost the domain in a UDRP.

Someone was behind the wheel in the decision to approve that domain to be featured with that logo as to add a logo, it must be emailed in for what I presume, visual inspection. So, it passed at two stages: a "manual" approval process of being listed and featured (without the logo first, as it takes time to add) followed by the manual addition of that image. It was big failure on Flippa's part.

But, Kevin seems to be in the process of remedying the TM situation at Flippa and it looks great so far. Without this being brought to attention, it'd keep going on and on. However, realtorsapps.com still remains (this is the 3rd or so mention of that)... @FlippaDomains ?

(Granted, I know that some may use the Realtor mark, but, this should be present in the pitch)

 

[DU]

Hold that thought for a moment and then tell me Flippa would not be responsible ethically (and maybe legally) for promoting that domain had the buyer gotten a C&D or had ultimately lost the domain in a UDRP.

It is commonly held here that capitalism is what matters. Capitalism and ethics simply don't align as a matter of course. A business can make them align but there's no presumption that they should and this is the desired state of a vast majority of people that call themselves domainers.

Bottom line: being ethical and legally accountable are two separate things.

Flippa's T&C explicity absolve them of any issue and places the burden solely on buyers and sellers (same as Sedo etc. they aren't an auctioneer or really a marketplace.. just a place to allow people to comem together). If they start becoming pro-active enforces then they entangle themselves and that's where their legal issues start. As stated the best approach is similar to NP and that is to respond to direct infringement when requested to do. This is similarwith YouTube and "safe harbor" rules. I'm not sure if these changed as their ability to detect has gotten better over the years - I know they silence certain sound tracks, for example. Still, most take downs appear to be requested.

For their personal image they could remove extremely obvious issues - such as using a Forbes logo. That said, they should limit it to the specific violation which is the the image itself and association. Also, by the terms and their zero tolerance policy the account should get bounced but they probably don't do that because they're profitability is dependent on a market place no matter how gray.

(Granted, I know that some may use the Realtor mark, but, this should be present in the pitch)

Some can and they are entitled to register it if they have the appropriate licensing and permission. Whether the buyer is allowed is irrelevant to the SELLER. The seller is not allowed to profit from the sale - remember this is a two sided transaction

 

[N-A]

Some can and they are entitled to register it if they have the appropriate licensing and permission. Whether the buyer is allowed is irrelevant to the SELLER. The seller is not allowed to profit from the sale - remember this is a two sided transaction

True, but, isn't the seller in this case also Flippa as they take 10% in commission? With that logic, Flippa is still at fault.

 

[DU]

True, but, isn't the seller in this case also Flippa as they take 10% in commission? With that logic, Flippa is still at fault.

Why is that relevant? They are getting commission for the sale based on success. Responsibility for the transaction still sits with Buyer and Seller - that's made very clear. The terms are specifically laid out to prevent Flippa being at fault and thus liable. If Flippa received sale proceeds that's different but that's not the case - they are getting success payment. When you file your taxes you don't file the income based on (sale - fees).

 

[N-A]

If Flippa received sale proceeds that's different but that's not the case - they are getting success payment.

In addition to a success fee, they also received upwards of $350 for their personal promotion of that domain name to sell. My take on that is by that point, they're very much involved in the sales process as a seller.

When you file your taxes you don't file the income based on (sale - fees).

I don't want to get too off track here, but, you somewhat do if you're smarter with your investments. If you had paid $400 total for purchasing, marketing, and listing a name on Flippa and it sold for $100, had you not incurred a capital loss? I'd report it...

 

[DU]

In addition to a success fee, they also received upwards of $350 for their personal promotion of that domain name to sell. My take on that is by that point, they're very much involved in the sales process as a seller.

Don't know what "promotion" means. If it's just raising it in the rankings through automagic means (i.e. systematoc) then it wouldn't likely matter. If promotion got a custom editorial review then that would change Flippa's role into personal advocation of the name which might change the arrangement somewhat. I am not going to read their T&C to see how that's covered but I'm guessing it's probably not.

I don't want to get too off track here, but, you somewhat do if you're smarter with your investments. If you had paid $400 total for purchasing, marketing, and listing a name on Flippa and it sold for $100, had you not incurred a capital loss? I'd report it...

I believe this depends if you're filing a schedule-c or schedule-d in the US. I'm presuming that a regular seller is accounting properly in which case the commission and fees should be a separate expense line item. It's off track and all I was saying was that the sales prices is the income you receive from buyer... you then separately pay the success fee. Or something like that

Let's agree to drop this subject

 

[N-A]

Don't know what "promotion" means. If it's just raising it in the rankings through automagic means (i.e. systematoc) then it wouldn't likely matter. If promotion got a custom editorial review then that would change Flippa's role into personal advocation of the name which might change the arrangement somewhat. I am not going to read their T&C to see how that's covered but I'm guessing it's probably not.

You're right there, and I think Kevin already clarified this. Promoted does not mean that Flippa stands behind their client's domains, just that they give them an additional boost. But, it's unethical to knowingly collect money for a TM name and rank it higher to help facilitate a sale without some type of visual warning that there could be future repercussions. Sure, we can argue that the seller must do this, but ultimately, I believe it falls in Flippa's hand to put something more stringent in place. Yes, I know, buyer beware. But, does it always have to be that way?

I suppose, for now, we just have to agree to disagree on the stance that it's a marketplace's fault for allowing TM's to be sold.

 

[DU]

I suppose, for now, we just have to agree to disagree on the stance that it's a marketplace's fault for allowing TM's to be sold.

But you are disagreeing with common market terms and conditions so I win!
Kidding, of course.

I understand the whys and need; however, the solution needs to be industry adoption of standards becauseshit rollls downhill. You can blame Flippa for harboring TM names but then what if they ask why a registrar let someone register a TM in the first place? Why should the secondary market police a market maker responsibility? And then the registrar will ask why the Registry allowed it in the first place?

Then everyone can blame ICANN for letting all their gTLD horses run free

 

[N-A]

But you are disagreeing with common market terms and conditions so I win!
Kidding, of course.

I understand the whys and need; however, the solution needs to be industry adoption of standards becausesh*t rollls downhill. You can blame Flippa for harboring TM names but then what if they ask why a registrar let someone register a TM in the first place? Why should the secondary market police a market market responsibility? And then the registrar will ask why the Registry allowed it in the first place?

Then everyone can blame ICANN for letting all their gTLD horses run free

Very true. That's why I've previously countered with other markets (providing examples, to include namePros) and people following suit as well (basically, the monkey-see-monkey-do theory you proposed). Maybe, the action Flippa is about to take will hopefully be a step in the right direction to set industry-wide precedence over the handling of TM's. Or, capitalism will always prevail. We'll see.

 

[Chris Wright]

ICANN does have a trademark clearing house in place for the new gtlds. It is the tm holders responsibility to register their tm words and phrases within that system. When someone goes to reg a domain that includes any of those, the system alerts them to the POTENTIAL issue. The system does not block the reg. Why? Because all tm uses are limited in scope. Dove is chocolate, but is also soap. Delta is an airline, but also faucets. If I want to reg deltahotdogs.xyz there is no tm issue. Also if I want to reg deltaairlinescomplaints.com there is no issue. That is a protected usage. There is no simple, cut and dried way to protect tm from potential abuse. Each case must be considered in totality. No algorithm can do it. Thats why lawyers and judges are needed. Zealous tm advocates would do well to read up on the various levels of tm protection and the various exceptions.

They will find that nuances are inherent. That is not a bad thing. Tm are good and useful things because of their nuanced nature.

 

[N-A]

ICANN does have a trademark clearing house in place for the new gtlds. It is the tm holders responsibility to register their tm words and phrases within that system. When someone goes to reg a domain that includes any of those, the system alerts them to the POTENTIAL issue. The system does not block the reg. Why? Because all tm uses are limited in scope. Dove is chocolate, but is also soap. Delta is an airline, but also faucets. If I want to reg deltahotdogs.xyz there is no tm issue. Also if I want to reg deltaairlinescomplaints.com there is no issue. That is a protected usage. There is no simple, cut and dried way to protect tm from potential abuse. Each case must be considered in totality. No algorithm can do it. Thats why lawyers and judges are needed. Zealous tm advocates would do well to read up on the various levels of tm protection and the various exceptions.

They will find that nuances are inherent. That is not a bad thing. Tm are good and useful things because of their nuanced nature.

Completely understand and agree with all of this. But, this is not applicable to the following listing, nor the subsequent reported listings:

 

[Chris Wright]

Actually... it is all perfectly applicable and relevant.
I think maybe you were thrown off by the fact that the TM clearinghouse is currently just for new gTLD's.

However, all the laws and principles in play are exactly the same, no matter the extension.
I brought up the clearinghouse to demonstrate that the "authorities" are doing as much as they are able to (in terms of being proactive).
There is no more that can be safely and legally done. It would be damaging to press further.

Each case is too individual, too nuanced, and too complex to have a cookie cutter approach.
The TM holder must actively defend their TM in order to keep holding the rights. This was true before domains existed, and is still true.
When TM holders don't defend their rights, the courts see them as abandoned.
To that degree, the conflict between TM holders and abusers, or potential / perceived abusers is necessary to preserving the TM.

Disinterested (not a party to) observers, can't fix abuses or potential abuses.
It's like trying to go to the doctor for someone else's ailment. It doesn't help and it could hurt.

 

[DU]

Completely understand and agree with all of this. But, this is not applicable to the following listing, nor the subsequent reported listings:

The issue with Forbes I thought was the logo? While the font is similar,it's actually not the same And it's a last name... sooooooo..... it's gone anyway

I brought up the clearinghouse to demonstrate that the "authorities" are doing as much as they are able to (in terms of being proactive).

That's a positive spin. I viewed it as an opportunity to make money by charging people for a very basic service.

 

[Chris Wright]

That's a positive spin. I viewed it as an opportunity to make money by charging people for a very basic service.

Thanks!

The point is not to put a positive spin on ICANN or trademarks clearinghouse.
The point is that policing trademarks proactively can only be done right up to a certain point. Going beyond that point can be counterproductive.

 

[S-B]

@David Walker

https://flippa.com/6992930-crossfitsystems-com

Have at it, bro.

 

[N-A]

@David Walker

https://flippa.com/6992930-crossfitsystems-com

Have at it, bro.

Come on @FlippaDomains ; I see we're getting lax these days. Anybody who steps away from their computer for a little bit of physical activity each day is aware that CrossFit is a TM. I know the world is plagued with a lot of keyboard warriors though, so I shouldn't expect much on that part.

...another one.

https://www.crossfit.com/cf/terms-and-conditions

 

[S-B]

Come on @FlippaDomains ; I see we're getting lax these days. Anybody who steps away from their computer for a little bit of physical activity each day is aware that CrossFit is a TM. I know the world is plagued with a lot of keyboard warriors though, so I shouldn't expect much on that part.

...another one.

https://www.crossfit.com/cf/terms-and-conditions

Bro, look through the domains..

 

[campout]

Bro, look through the domains..

I wish I could just buy GrannyMingle and CincinnatiBengalsHQ !! Oh these darn lot auctions starting at $100,000 !!

 

[N-A]

Bro, look through the domains..

Mobile now, but I did see a lot of team names. Detailed post to come (unless removed by then, @FlippaDomains).

 

[FlippaDomains]

Mobile now, but I did see a lot of team names. Detailed post to come (unless removed by then, @FlippaDomains).

Thanks for bringing that to our attention @Shane Bellone . We just canned it.

@David Walker Not sure if you were trying your hand at sarcasm/humor there, or if you're genuinely aggravated that I became "lax" over the course of a weekend, but I'm not going to be dragged into a continual call-and-response based on every TM auction you find each day.

@Micklepickle made some very smart observations of how this cuts both ways; I appreciated his insights and the dialogue it sparked. But instead of saying "it's not our job to police this," I will maintain my promise of more vigilance of these blatant abuses -- as they have no place in our marketplace. I hope that will suffice for now.

 

[N-A]

@David Walker Not sure if you were trying your hand at sarcasm/humor there, or if you're genuinely aggravated that I became "lax" over the course of a weekend, but I'm not going to be dragged into a continual call-and-response based on every TM auction you find each day.

No, I don't expect you to work over the weekends and I hope that you can become "lax" on these two days off like everyone else. However, don't you think your system needs improvements? If it can accept TM's like this over the two day period where nobody has access to computers to remove it (or approve it), don't you think there should either be 1) manual approval of featured listings on Monday or 2) some form of TM detection to prevent this from occurring at all*?

And again, no, I don't require a response from you directly. Seeing that the auction is removed is good enough for me. I will, however, continue to point them out to you as they slip through for manual inspection. But, you have free will to not listen to me (and others) on namePros. If you choose to ignore this thread though, you'll not only be ignoring my reports here but also reports of other concerned members such as @Shane Bellone's. In addition, you'll compound the existing trademark issue that you have of ignoring them on [email protected] as so pointed out by @venturefile.com and @Abdullah Abdullah.

Thanks for your swift action regarding this specific case though.

*a suggestion for this would be to somehow closely inspect portfolios as "other domains" listed may slip through since the title may be 1 domain, but the actual listing may include other trademarks. In this case, the main domain listed was a trademark (I'm sure others as well, but I didn't have the time to go through them while mobile), and if he re-listed it as a portfolio with another name, it may slip through again.

 

[FlippaDomains]

don't you think there should either be 1) manual approval of featured listings on Monday or 2) some form of TM detection to prevent this from occurring at all*?

We're working on improving #2, and manually intervening when it comes to #1.

I will, however, continue to point them out to you as they slip through for manual inspection.

I appreciate that, and...

you'll not only be ignoring my reports here but also reports of other concerned members such as @Shane Bellone's. In addition, you'll compound the existing trademark issue that you have of ignoring them on [email protected] as so pointed out by @venturefile.com and @Abdullah Abdullah.

...It's unfortunate that there have been some who say we do not act on these. We do. I urge all mentioned and anyone reading to continue to write Support to request a takedown. IF there is no action, PM me the Ticket ID and I will get involved to see why.

Thanks for your swift action regarding this specific case though.

We're alert, so keep reporting if we miss anything.

closely inspect portfolios as "other domains" listed may slip through since the title may be 1 domain, but the actual listing may include other trademarks.

We're doing that, yes.

Thanks @David Walker

 

[N-A]

We're alert, so keep reporting if we miss anything.

After this Pokemon Go phase, and Pikachu being the most popular character that I can even remember going back to elementary school, you'd think PikachuTrader.com wouldn't pass... but it did.

It's not like Nintendo of America Inc. doesn't have 6 live trademarks on "Pikachu" for various uses, right?

A for effort though.

 

[N-A]

Portfolio of 15 Domains!! Over $15k in Estibot Value!

The portfolio includes FB.LIFE which is advertised as being "Facebook Life" and AUDIPKW.NET which from what I can tell is a model of Audi's A4 series.

 

[N-A]

Portfolio of 10 .com Domains
To include: WindowsPhoneApps.com & XBoxOneForum.com.

I know that the others may be in the gray area as far as TM's are concerned as "Android" is a little bit more lenient. However, Android does state that usage ought to be something along the lines of "Roms for Android" instead of prominently using Android as the first descriptor word. Though, this doesn't stop places like AndroidForum, and I don't see them pursuing them. For what it's worth, the only instance I see Android filing a UDRP is with AndroidAppStore.com.au.

With that being said, I'm well aware of Microsoft being more aggressive in protecting their marks.

So, protect your valued customers, and take this one down as well.