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Stop taking legal advice from domain investors

Labeled as discuss in Legal Discussion started by equity78, Jun 15, 2018.

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  1. equity78

    equity78 Top Member TLDInvestors.com TheDomains Staff PRO Gold Account VIP ★★★★★★★★★★

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    I have said it before but it always seems to come back up, don't take legal advice from a domainer with no legal background. Of course no one wants to pay money each and every time a potential issue comes up. But either you are running a business or you have a hobby or even worse you are just buying raffle tickets that have a one year shelf life. If you have assets you consider important/valuable, you … [Read more...]
     
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  2. stub

    stub Top Member VIP ★★★★★★★★★★

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    Or. If you do ask. Be sure you know what free advice is worth.
     
  3. briguy

    briguy Guru In Remission! VIP ★★★★★★★★★★

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    Thanks for listing some"legal resources"...

    "So you want to reach out and email a John Berryhill, Stevan Lieberman or a Zak Muscovitch."
     
  4. stub

    stub Top Member VIP ★★★★★★★★★★

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    A word of warning. If you are looking for free legal advice from these guys, I would be honored to even receive a reply from them. These guys are so busy, they really don't have time to read and reply to most non-consequential questions.

    I think this is why asking legal questions in the Legal Forum, is actually a good service. But if you have a serious decision to make. Then I would use a lawyer. Because you cannot trust everything you read as an answer to a general 1 or 2 line question. Which might need a 2 or 3 paragraph of details of explanation. In order to get the "true" facts, before answering.
     
  5. Jurgen Wolf

    Jurgen Wolf Top Member VIP ★★★★★★★★★★

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    For UDRP - just TM is not enough factor...
    Must be also "bad faith".
     
  6. stub

    stub Top Member VIP ★★★★★★★★★★

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    True. But having the domain parked and showing competitors ads is almost 100% certain to be called Bad Faith.
     
  7. Domainstore

    Domainstore Top Member VIP ★★★★★★★★★★

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    ....unless you can proof that you don't get any money from parking-ads. (f.i. Dynadot doesn't give any parking-revenue already for 5, 7 or more years now).
    But still better In any case it's better to forward to a real website of yours, or to forward a page "under construction".
     
  8. stub

    stub Top Member VIP ★★★★★★★★★★

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    I would think you could be caught out as Bad Faith for just showing the ads. Whether or not you get any money from them. But agree. It's always safer to show an under construction/contact us kind of page.
     
  9. jberryhill

    jberryhill Top Member John Berryhill, Ph.d., Esq. VIP ★★★★★★★★★★

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    Most panelists will not care if you are making money or not. Even if it is a registrar parking page from which you do not get one penny, most panelists will reason along the lines of "someone is making money from it, and the domain registrant is responsible for it". Only in the rarest of situations will you be able to persuade them differently.

    And here's what gets me about the "advice" commonly offered in this forum. This is such a common circumstance that it is literally in what amounts the FAQ for UDRP cases:

    http://www.wipo.int/amc/en/domains/search/overview3.0/#item35

    3.5 Can third-party generated material “automatically” appearing on the website associated with a domain name form a basis for finding bad faith?

    Particularly with respect to “automatically” generated pay-per-click links, panels have held that a respondent cannot disclaim responsibility for content appearing on the website associated with its domain name (nor would such links ipso facto vest the respondent with rights or legitimate interests).


    Neither the fact that such links are generated by a third party such as a registrar or auction platform (or their affiliate), nor the fact that the respondent itself may not have directly profited, would by itself prevent a finding of bad faith.


    While a respondent cannot disclaim responsibility for links appearing on the website associated with its domain name, panels have found positive efforts by the respondent to avoid links which target the complainant’s mark (e.g., through “negative keywords”) to be a mitigating factor in assessing bad faith.


    ---

    That's not some kind of "expert-level" information there. If you spend a half hour just reading the WIPO Overview of UDRP decisions, you'll learn a lot more than reading this forum.
     
    Last edited: Jun 19, 2018
  10. stub

    stub Top Member VIP ★★★★★★★★★★

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    @jberryhill - Thanks for the link. very useful information.
     
  11. jberryhill

    jberryhill Top Member John Berryhill, Ph.d., Esq. VIP ★★★★★★★★★★

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    The word "always" is a dangerous word.

    What you said above is correct:

    Most of the time that's true, assuming that the alleged mark is actually distinctive.

    But I wouldn't agree that an "under construction / contact us kind of page" is always safer.

    With words that are dictionary terms, non-distinctive descriptive phrases, geographic terms, etc. you are much safer if they are appropriately parked.

    And the reason for that is because a lot of dictionary terms, etc., happen to be trademarks. So you have two scenarios when you are dealing with a dictionary word like "TIDE", which is a famous mark for detergent:

    1. An under construction page / contact us page.

    2. A parking page with things like weather forecasts, boat navigational equipment, surfboards, etc.

    Now, let's say that someone contacted you to purchase the name and you quoted them $X. It turns out they are the TM owner and they file a UDRP. Their complaint says, "We have this trademark, the respondent isn't doing anything with the domain name, and they want $X to sell it to us."

    Your defense is, "It's a dictionary word, and I didn't register it and seek to sell it because it was a trademark."

    What is going to be more helpful evidence in your favor? The situation described as 1, in which the domain name is not used for anything; or the situation described as 2, in which the domain name is clearly being used for things that have to do with the dictionary meaning of the word "tide"?

    Obviously, all things being equal, you are much better off with the parking page relating to the word "tide", because nobody has to simply take your word for it that you did not have the trademark in mind. In that situation, the parking page itself is evidence of non-infringing use and intent.
     
  12. jberryhill

    jberryhill Top Member John Berryhill, Ph.d., Esq. VIP ★★★★★★★★★★

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  13. xynames

    xynames XYNames.com PRO VIP

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    Or just hire me officially / pay me for good advice. :xf.smile:
     

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