Weird C&D letter from enom.com (demand media)

[dotnom]

In 2005 i was searching for a short and memorable name (like we all do here in this forum)
I found the "kenom.com" which sounded like kenom and more like key for names to me
In fact i registered also in 2006 keynom.com too to avoid spelling errors
Never used for new domain registrations but for registered domain sales

Because from first glance someone and especially a domainer would think that this may remind you the "enom.com" i thought it will better to ask before i use it
So i did

I asked :
--- Your Original Message - 6/10/2005 3:24 PM ---
"3. The use of xenom.com ( where x can be any combination ) as an enom ETP website violates the copyright of your company or not ?"

enom :
--- Agent Reply: May Blatherwick - 6/12/2005 7:48 AM ---
"3. Again, please clarify your question?

I replied :
--- Your Reply - 6/12/2005 8:52 AM ---
"If i use a name such us xenom.com ( where x can be any english letter like benom.com for example ) , as the basic name of an enom ETP website to promote and sell domain name services
Do you consider the name ( because it contains the name of enom.com , in the example before benom.com ) violates the enom.com copyright or do you believe in general there is any problem to use it for this purpose and with this kind of services as an ETP reseller of enom ?"

enom :
--- Agent Reply: May Blatherwick - 6/13/2005 7:59 AM ---
"If the name you are looking to register is available, you would be able to use it for domain registration. I hope this answers your question. Let me know if you need anything else"

So i took the OK and proceed. As you may see i'm already few years to this forum and i display the domain name even at the signature
In 12-Feb-2008 few days ago i received a C&D letter from Demand Media the new owners of enom saying that :

It was recently brought to Demand Media’s attention that you have registered and are using the domain name <kenom.com>. Your use of a domain name that incorporates the whole of Demand Media’s trademark is an obvious attempt to divert Demand Media’s consumers to your website and is a potential violation of US trademark law and unfair competition laws as well as the federal Anticybersquatting Consumer Protection Act. Please note that the addition of an extra letter "k" does not itself distinguish this domain from the ENOM trademark. Furthermore, your current use of the domain directs users to a website that offers domain name services which are in direct competition with Demand Media. Your registration and use of this domain illustrates your obvious and willful intent to register a domain to divert Demand Media customers to your website. Willful trademark infringement may expose you to treble monetary damages and other penalties. Your attempt to sell the <kenom.com> domain is also evidence that you registered this domain in bad faith


I replied :
Dear Mrs. .....
i must say i was surprised from your email
My surprise was based on the fact that i had the same opinion like you before the registration of the name (that the domain may bump at your copyright fences)
Because i value enom.com enough many years now i thought it was proper to ask at the time of the registration time of the domain

"mentioned the details of my communication i put at the top of the post"

I have the receipts for all these contacts to prove the validly of the previous data

I don't feel threatened from your email but rather disappointed from enom
The idea of the name was not based on enom as an extension with a "K" but more like kenom.com (the key for names)
That's why i registered keynom.com too on 15-jul-2006 to avoid spelling typing errors and redirect it to kenom.com when i had the time to push kenom.com more

Ending i want to underline this, i don't make a living from kenom.com or noticed a great increase in sales so in other words is not so significant for me
However i find this issue serious enough to make it public starting from various domain name forums that i visit daily
If this was indeed a big site you could ruin his business and this type of irresponsible behavior is not what i had in mind for enom that i support all these years



She replied :
Dear Mr. ......,

I am happy to hear that you support the eNom domain registrar services. Certainly you can understand the importance of protecting the eNom trademark as well as protection customer's from being deceived or confused when they mistype the domain <kenom.com> and they are directed to a site that offers the identical and competitive services offered on ENOM.COM. As a trademark holder, Demand Media is required to protect its trademark rights as well as its consumers from confusion or deception, and it is believed that your registration of the domain <kenom.com> is a deliberate attempt to divert customers seeking eNom domain registrar services to your site.

I am not familiar with your conversation with May Blatherwick. No one by that name currently works at Demand Media, Inc. However, you even mention that you "had the same opinion" that your registration of the <kenom.com> domain "may bump into your copyright fences" which indicates that you knew customers might potentially become confused with your registration of this domain.

I did not intend to come across in a threatening manner. My tone is only to convey the importance that Demand Media places on its valuable intellectual property rights and on the value of protecting Demand Media consumers from being mislead or confused.

I hope that you are willing to work together towards an amicable resolution in this matter.


I replied :
Mrs ......
first of all i'm happy with your fast reply
However i think you disregarded the content of my email and you lower the value of the data i provided

I don't find it very professional to say you don't know who is "May Blatherwick"
Sorry to say that i don't know your company too. From what you say you are the new owners of enom. I know enom from 2002 but didn't know Demand Media
If you notice the day of the conversation i provided and that the reply came straight from enom.com ([email protected]) i find hard to understand how you keep saying that "is a deliberate attempt to divert customers seeking eNom domain registrar services to your(my) site"
Further more i provide you with the support case number "Case XXXXXXX - Question about RegistryRocket and more"

Please notice again the replies i gave you before you reply and contact enom.com for verification
I took the green sign from you the days that kenom.com was registered (check the days)
I provided you with the prove for this. If this ruin your case i'm not the one you should blame

I understand your position to work and produce results for your company and i would agree right away with you if i didn't ask for this before 3 years
The importance to Demand Media and every legal or consulting company should be not only to protect the customers of your enom but also the reputation of enom that you clearly heart right now

I'm certainly willing to work with you to find a common acceptable solution even i don't find any from the options your provided until now
May i suggest to start with an apology from your side regarding the accusations and the outcome you extract from my email ?

 

[dotnom]

See how easy is to find and talk with legal representative without reporting the exact issue to the customer representative.


First contact of the support dept for the validation of previous support ticket
>> Me 02/13/2008 11:52 AM
Dears Sirs can you please find and verify an old support ticket you sent me because i can't find it at 'my tickets' ?
I really need this one
The details of this tickets are ....
----------------------------
>> Response (Michael G.) 02/13/2008 07:11 PM
Hello, Thank you for contacting Technical Support regarding this issue. In regards to the issue with this ticket, I am unable to find any information on this ticket as you have requested, can you please let me know the details of the issue so I can look further into this matter for you? Please let me know if you have any additional questions regarding this matter. Thank you for your continued partnership, we appreciate you working with us
----------------------------
>> Me 02/14/2008 01:33 AM
Do you have the support ticket database from 2005 ?
If you do please make a query there
It will be appreciated
----------------------------
>> Response (Michael G.) 02/14/2008 08:36 AM
Thank you for contacting Technical Support regarding this issue. In regards to the issue with this case, unfortunately I am unable to find this case number in the older support system, can you please provide me with the information as to what you were requesting from this ticket? Please let me know if you have any additional questions regarding this matter. Thank you for your continued partnership, we appreciate you working with us
----------------------------
>> Me 02/20/2008 02:15 AM
Thank you Michael for your time
I think you will help me more if you can tell me the email of your CEO and the Legal or Sales Manager because there is an issue that must be solved and i think these are the only two people that can talk to
----------------------------
Response (Michael G.) 02/20/2008 03:35 PM
Thank you for contacting Technical Support regarding this issue. In regards to the issue with this matter, you seem to refuse to tell me what the issue is so I am unable to assist you with any matter. If you would like to tell me what the underlying issue is so I can look into getting it resolved I would be more than happy to assist you. However as you refuse to provide me with this information I must close out this ticket if you cannot provide this to me. Please let me know if you have any additional questions regarding this matter. Thank you for your continued partnership, we appreciate you working with us.

 

[Lpspider]

They wouldn't even give you contacts to their legal manager or whatever?

 

[dotnom]

They wouldn't even give you contacts to their legal manager or whatever?

Yes my friend you understood correctly

Let's assume that this gentleman wants to see the exact details to forward me to the correct legal dept. (do they have many?) but this doesn't look so helpful

Also as you see they CAN'T verify my support ticket with the OLD support system (in 2005). I wonder why

 

[Ross]

Dotnom you should contact a CS Rep and ask them the same questions you asked back in 2005 and see what they say. Dont bring anything recent up, just act as if it was in 2005 and you had the idea to reg the name. Just curious to see what happens.

 

[labrocca]

Dotnom you should contact a CS Rep and ask them the same questions you asked back in 2005 and see what they say. Dont bring anything recent up, just act as if it was in 2005 and you had the idea to reg the name. Just curious to see what happens.

Terrible idea. They might give a totally different response and that would only show that the original CS made a mistake and it's a single out-of-step with policy the person committed. Often in situation like this if they go to court a companies policies will come into play. Did Enom make it difficult to contact legal representation? Who knows but I think they did. Legal rarely wants to deal with email questions imho. They normally have only a phone contact and it's usually tough to get that info. Lawyers actually have an insiders way to find contacts (bar association) that normal folks can't use.

 

[dotnom]

Dotnom you should contact a CS Rep and ask them the same questions you asked back in 2005 and see what they say. Dont bring anything recent up, just act as if it was in 2005 and you had the idea to reg the name. Just curious to see what happens.

I told the representative that is for a legal issue of a "typo name"
I try to find one person responsible for this and present him the case and not play again with representatives

 

[Ross]

Terrible idea. They might give a totally different response and that would only show that the original CS made a mistake and it's a single out-of-step with policy the person committed. Often in situation like this if they go to court a companies policies will come into play. Did Enom make it difficult to contact legal representation? Who knows but I think they did. Legal rarely wants to deal with email questions imho. They normally have only a phone contact and it's usually tough to get that info. Lawyers actually have an insiders way to find contacts (bar association) that normal folks can't use.

So what if they give him the response that it is ok? Would this give him evidence of consent? Would they give correct information this time?

Just like in my earlier posts i stated that CS Reps dont know anything. To be honest i think that he is totally wrong in this situation. He should have made it 900% clear what he was doing with the rep or better yet contacted someone that had athorization to grant permission. This is all because of poor communication and misunderstandings.

I understand that CS Reps obviously represent companies and you feel you have cheated, but you should have clarified with the COMPANY not with the rep.

 

[Dave_Z]

This is all because of poor communication and misunderstandings.

That's pretty much what caused this whole thing to happen.

Someone start lining up at Burger King to ask their cashier if you can use their
logo for your design. If the cashier says yes and you proceed, see if you can
use that against their lawyers if they go after you for copyright infringement.
(after firing their cashier, maybe...)

 

[Ross]

That's pretty much what caused this whole thing to happen.

Someone start lining up at Burger King to ask their cashier if you can use their
logo for your design. If the cashier says yes and you proceed, see if you can
use that against their lawyers if they go after you for copyright infringement.
(after firing their cashier, maybe...)

My exact point.

 

[Name Trader]

Here are 2 addresses...

legal[@]enom.com
paul.stahura[@]enom.com (the boss)

 

[tricolorro]

I told the representative that is for a legal issue of a "typo name"
I try to find one person responsible for this and present him the case and not play again with representatives

:hi: dotnom

I don't know if this will be of any help to you but it may explain why
Demand Media started going after domains they consider trademark infringing.

This is from Domain Tools blog, May 09,2007:

"eNom’s Sobrenombre.com mistake

http://blog.domaintools.com/2007/05/enoms-sobrenombrecom-mistake/

Patrick

 

[dotnom]

That's pretty much what caused this whole thing to happen.
Someone start lining up at Burger King to ask their cashier if you can use their
logo for your design. If the cashier says yes and you proceed, see if you can
use that against their lawyers if they go after you for copyright infringement.
(after firing their cashier, maybe...)

I understood your example but i think it's not quite accurate
We're talking about 4 emails with corporate signature headers and full id of their support ticket system i don't think it's the same with a cashier at a BK and his verbal info

But participating to your example if the boss is not present (absence of legal dept. email) and the cashier says you can take the XX free for example, when someone else sees the error he will either says "sorry it's was our mistake" or "we apologize and take this XX for free instead" rather than "i think you lie pay us or we will sue you"

If you check DM repr. didn't admit that our conversation with the support is real
- She can't verify my support ticket
- "Your alleged conversation with this employee"
......

(thanks stub and tricolorro for your resources)

 

[Ross]

No matter which way you look at it it was an error by an employee that did not have autorization to give permission. I think that this is what Dave Zan was trying to say with his example.

 

[Dave_Z]

I understood your example but i think it's not quite accurate
We're talking about 4 emails with corporate signature headers and full id of their support ticket system i don't think it's the same with a cashier at a BK and his verbal info

But participating to your example if the boss is not present (absence of legal dept. email) and the cashier says you can take the XX free for example, when someone else sees the error he will either says "sorry it's was our mistake" or "we apologize and take this XX for free instead" rather than "i think you lie pay us or we will sue you"

If you check DM repr. didn't admit that our conversation with the support is real
- She can't verify my support ticket
- "Your alleged conversation with this employee"

And the contents of those 4 emails with corporate signature headers and full
ID of their support ticket system mean...what exactly? They replied to all your
queries so far, but have they specifically said they've given you permission to
begin with?

If you want someone to decide whether the answer to the question is indeed
giving consent, that's what judges are for when two parties can't agree. But..
it might not produce a good feeling if the other party is in a better position to
prove their argument, possibly anyway.

Now I'll agree that it's very humbling if someone apologizes for any confusion
arising from a situation, even if they really didn't do anything wrong. But you
may find it shocking that people aren't required or compelled to do that, nor
do they even have to be accomodating if it's especially warranted.

No matter which way you look at it it was an error by an employee that did not have autorization to give permission. I think that this is what Dave Zan was trying to say with his example.

Bingo. Unless one is paying that employee's salary, or has some degree of an
ownership interest in the company that employee's working for, does s/he get
to dictate what that employee's responsibilities should and shouldn't be?

BTW, I wonder what's the further point of this discussion since it's been a full
week this thread started and you've pretty much made up your mind, dotnom.
Demand Media might proceed to make an example out of you unless you two
figure and work out something...fast.

 

[Name Trader]

He can always fallback onto his keynom,com domain.

 

[Idees]

Just screw eNom, ignore their messages, and let them spend thousands in court only to have you win.

 

[Dave_Z]

Just screw eNom, ignore their messages, and let them spend thousands in court only to have you win.

Given the domain name and its content, eNom doesn't necessarily have zero
chances of losing.

 

[_Daniel_]

Frankly I think claiming an inherent TM violation for "kenom" is a bit ludicrous. Trademark law isn't about quantifying letters, it's about protecting trade marks. To think that a substantial number of customers or potential customers would unknowingly prefix a simple four-letter pronounceable with a hard consonant is rather silly.

And certainly, corporations are to some extent responsible for the screwups of their employees in cases like these. Whether or not the employee still works for the company generally isn't relevant. The entire company isn't directly at fault, but neither are you. The relation between corporate and individual responsibility has always been fuzzy and contentious both inside and outside of legal circles, but issues like your exchange certainly hold pertinence. It's not reasonable to expect a CS rep to hold legal expertise, but it's certainly reasonable to expect them to forward the inquiry to an appropriate location if they don't can't answer questions (which were quite clearly legal or as least quasi-legal inquiries). Her response was certainly not an explicit permission, but it was enough to mislead you.

That said, using kenom.com as a place for selling domain names is very questionable. I would at least move the site to keynom.com or another location and redirect kenom.com there. The pragmatic thing to do would be to give in; it's really a personal choice if you want to hold out but at the very least stop selling domains from kenom.com.

 

[dotnom]

Cross post from another forum from Dave Zan and my reply below (i paste them just because they add the clarification that the communication is from their support ticket for ETPs)

Originally Posted by sweetfunny
The employee is acting on behalf on eNom.com and what they say is binding.

Dave Zan posted :
That can bind if, say, the OP contracted with eNom to do business. But...the
OP didn't agree to do business with them.

If the OP wants a surefire answer as to whether the former rep's reply to his query is equal to willfull permission from eNom, that's something only a judge can authoritatively say. Beyond that, I don't know how you can compel one to do what you want when they have no agreements or obligations to you

My reply :
Dave i don't know what do you mean when you say that the "OP didn't agree to do business with them"

The communition i pasted from the first post was the support ticket from the priority support system for ETPs (eNom Technology Provider) and for people who don't know this is the top level of reseller status at enom
This priority system is supposed to be quick and responsible because you provide support for the rest of the reseller chain beneath you.

Even at THEIR ETP control panel at the info section there is the "Organization Name : KENOM" and the "Website URL : www.kenom.com" for years now

Also a sidenote, Kenom.com was not registered under enom but under Domainsite.com
When Kenom.com started to get some traffic that was the time i received the C&D email

I wait for an update to my latest email, i will let the board informed about this issue

 

[Dave_Z]

The communition i pasted from the first post was the support ticket from the priority support system for ETPs (eNom Technology Provider) and for people who don't know this is the top level of reseller status at enom
This priority system is supposed to be quick and responsible because you provide support for the rest of the reseller chain beneath you.

Ah, my bad since I forgot you're an ETP. Better read your ETP agreement (or
whatever it's called) and other associated policies regarding their intellectual
property, though.

Frankly, I'm rather amazed this is still ongoing.