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This is a discussion about selling domains, and what you can or can not do.

In this post, I want to highlight some of what I learned from a WIPO case that we recently won. I do hope that it might help some of you. Disclaimer: I am not a lawyer, so don't take this as legal advice.

First of all, thanks for pointing out this case, @Robbie . It really is a win for domainers and reinforces that domain investing and trading is a legitimate business. And it is the first decision ever in a 2L .nl case.

If you have any questions, I'd be happy to answer.

Here we go!

Outbounding domains is not bad faith
Approaching a potential buyer is a legitimate way of doing business. People do outbound all the time in all sorts of industries. You absolutely can actively seek buyers for your domain names.

The sole fact that you approach an end-user to offer them your domain is no ground for finding bad faith. Bad faith needs to be proven based on other grounds than just the fact that you have approached a potential buyer.

The other side of outbounding your domains
This case does show the other side of outbounding your domain names. Among domainers there is a lot of talk about how outbounding domains can be the right approach to sell your domain names quicker, but you can't always predict how someone on the other side will react.

In this case, the complainant really liked and wanted the domain I offered to him, but he was not willing to pay the fair market price. So he filed (the .nl equivalent of) a UDRP in the hopes that he could get the name for free!

Difference in frame of mind
In this case, the complainant (and his lawyer, which is a shame IMHO) did not recognize that buying and selling domain names is a real business, despite numerous cases that mention and approve of domaining. Before this case, domaining had been recognized multiple times by WIPO so it was not an unknown fact.

The fact is that they had a different frame of mind in that they, and many others outside of our industry, believed that domaining is illegal. I'm glad that WIPO once again underscored that domaining is a legitimate business.

This case does show that domaining still has a negative view on domaining. Too many people out there still see domains as a $10 cost instead of an important asset in any business.

Educating the public
We as domainers play an important role in changing this negative view on the domain industry and domaining. However, our reach is limited to our audience and those we interact with. Often this education happens in one-on-one interactions when negotiating a sale. The better you can educate your buyer, the better you will be at selling domain names.

This brings me to the role of the registrars. Registrars can reach a much wider audience. Especially those who have already bought a bad domain for their business and need to upgrade it in the future. Because of this, I was glad to see GoDaddy acquiring DNAcademy and I do hope this can start to shift the impression that the general public has about our industry!

Avoid obvious trademarks
It's important to stay away from trademarks. If you look at the WIPO cases, most of them could have been avoided. If you want to earn money in domaining, do not waste your money on domains like kpnhost.net, airfrence.com and kpmg-consulting.com (believe it or not, people really did register these names and of course lost them in WIPO cases).

Buying trademarks not only wastes your money on a domain you can never sell, but it also gives the whole domaining industry a bad reputation. Also, keep in mind that registering obvious trademarks gives you personally a bad reputation, which can work against you in future UDRP cases.

Be careful with PPC
Because you can not control the links that are placed on your landing pages, PPC can help prove bad faith. I've seen cases where people lost their domains because the PPC links were pointing to the complainant or to their competitors. You want to avoid earning money from someone's trademark.

In my case, I was using just a plain and simple make-offer landing page from Dan, without any PPC links. This lack of PPC links made it so much harder for the complainant to prove their argument that I was using the name in bad faith (by trying to earn money from their trademark).

The .nl TLD needs RDNH
Currently, Reverse Domain Name Hijacking is not available in disputes for .nl domain names. In several cases about .nl domain names the panelist had to resort to terms like "if RDNH had been possible, the finding would be ...". Unfortunately the panelist did not give this statement, despite having done so in one of his earlier cases. However, this does show that there is a need for the possibility of such findings.
 

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