It's hard to know without knowing the name but if it is indeed a product then I would turn it over because imo your going to lose it. If it's up at Sedo, bad faith is evident without much research. It doesn't matter legally whether you knew of the product or service. All that matters is that it does exist. How do suppose you can keep it if your trying to sell it? Your in a tight spot, ask a domain attorney but if you don't going without a lawyer I would simply give it up from the sounds of things in this post you don't have much choice. I have lost 3 domains but I never fought them I just gave up the domains...
Dont be afraid to negotiate. Be polite, but direct. None of their perception is equal to reality, and you know it. Answer that you intended the name (example) ZCFK.com thinking on "Zero Chocolates From Kamtchatka" and you are open to offers.
Try to investigate how much does a WIPO procedure costs... from other domainers I heard is about 2k euros (3k usd) but Im not too shure about it..
So you can play the pragmatic game and tell them: the bad way will cost you 3k usd, the "win-win" alternative is that they pay you 2k usd and the name this week with them. Negotiate with a lawyer, not with the firm. A lawyer is easier to acept from you 500usd (outside of the water) and get the 2k from the company, so you profit anyway.
If they refuse, send them to hell and benefit from "scandal" and increase your domainer rank or your other domains popularity.
You have nothing to lose, fight! Dont give up the name... learn to negotiate and if you lose, no problem, experience costs.
Welcome to the club and congrats to your C&D...
Lawyer's job is to intimidate, but don't fall for this. Just treat these guys like any other inquiries and get at least $500 from it. Just be nice and talk about your cost, time, etc..
My last C&D was settled at $2k... So, heads up and goodluck!..
Cybersquatter = Cybersquatting, according to the United States federal law known as the Anticybersquatting Consumer Protection Act, is registering, trafficking in, or using a domain name with bad-faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.
Fight, for what? You have allot to lose if you lose.
Under UDRP policy, successful complainants can have the names deleted or transferred to their ownership (which means paying regular renewal fees on all the names or risk them being registered by someone else). Under the ACPA (Anticybersquatting Consumer Protection Act) a cybersquatter can be held liable for actual damages or statutory damages in the amount of a maximum of $100,000 for each name found to be in violation.
Some people in this thread are telling you or suggesting you to cybersquat and try to sell the name to the trademark owner. That's bad news and more evidence against you if this issue proceeds to a UDRP or court. I'm not trying to scare just be warned your playing a losing game. I wish you the best and it's possible you could get something from someone but don't think it's an automatic victory...
...and have a permanent record of a WIPO or UDRP that can be used against you in the future as well as all the links proving it. That only works if you have a legitimate right to the name. your rank as a domainer has nothing to do with how many UDRP's you've lost or had filed. Actually, I think it's quite the opposite. How do you know what he has to lose?. If they fight tough, you can lose all your assets and end up in bankruptcy.
Losing the domain is one thing. Losing your reputation and integrity is quite another. Nothing wrong with negotiation, as long as you know where to stop. It's a lot like the old song lyrics "You gotta know when to hold 'em, and know when to fold 'em.".
If vaunter takes his own advice, he won't last long in this business. ??? ???..
Hehe.I sure wish we could post images on this site.
Just take it slow sir...
What's this link about? It requires a password to proceed...
Guys, many thanks for your kind words and advice!.
I have spoken to a lawyer who instructed me to stop posting about this case on a public forum until we see how it ends up (that's why I have partly edited my first post).
I'll let you know what happens. That's a promise. Many thanks again! Rep added!..
Try that link. For some reason they added protection for the image...
Parking alone doesn't constitute bad faith. If the keywords were completely unrelated to the product they sell, then they would have to prove exactly how it was infringing on their TM when it had nothing to do with their TM.....
Also a 4-letter domain could simply be an acronym for something else. Obviously we don't know the name and what the OP had in mind when he registered the domain..
But we know exaclty what he is doing with it, and cchances are pretty good competing ads are on the site. What was that phrase I always hear about?? oh, USAGE USAGE USAGE. His intent was to monetonize the domain and offer it for sale, since, like, that is what he is actually doing. So it can be reasonably determined that his intent was to profit from the doamin. I sthe alleged TM holder can prove thier rights, show he has not earned any rights to the name (parking page witha a for sale will not generate rights to a name), and show bad faith, they might have a case...
1. Take off the parking page - point it your homepage or whatever instead.
2. Contact an attorney who specializes in domain name related issues who has a solid history of successfully handling UDRPs ...
... and knows to ask for a 3 person panel, and furthermore knows a lot about the various panalists that one can choose from.
3. Get ready to spend at least $3K USD to get started ... and be prepared to play hardball - likely they are try to intimidate you because, based on the limited information you provided, they likely have a weak claim, if any at all.
My company owns some generic domains that also happen to match existing trademarks - it's a common situation. TM rights are not absolute ... one has to be prepared to fight it out and/or work out mutually acceptable settlement in such situations.
Rambling on - bottom line is don't let them steamroll over you - they likely have a very weak case, if any at all, based on the info you provided - don't be intimidated.
Good luck and keep us updated.
That will do absolutely no good what so ever. If the companies lawyers are any good (or the trademark protection company) they will have kept screenshots and copies of what the address pointed to in the first place. By moving it and playing around you are potentially giving evidence to them in their wipo. Why do they have a weak claim? he has admitted that the domain forms part of the companies product name which is trademarked. The fact he has it on a parking page with an offer of sale on it demonstrates that he has no legitimate use for it at the moment and is trying to monetize the domain...
From all indications, a UDRP challange hasn't been filed yet - thus taking off the parking page may make the difference in forestalling a UDRP challenge...
On a related note, he could likely legitimately claim he typically defaults new registrations / acquisitions to parking as a placeholder / gather stats, etc ... or was setup that way and he wasn't aware of it until he received the C&D letter.
TM rights are not absolute. And furthermore, in this instance, the OP says the 4-letter domain, which itself could likely be considered by many as also an acronym, only matches the second half of the company's, presumably generic, two word mark ... sounds like a weak claim to me.
This could also be viewed as a 'good faith' gesture (you acknowledge they might have a case). If I read this right it's the second word that matches a TM name and he was not aware of that TM until he was contacted..
It does not mean it's confusingly similar and of course a lot depends on usage..
We don't have enough info to be sure but they could have a weak case.
The mere fact that the domain is parked for sale is not evidence of bad faith, or that he has no legitimate rights. Domain trading and monetization is a legitimate activity and that is acknowledged by WIPO...
I think he said he doesnt live in the US...
Cybersquatter = Cybersquatting, according to the United States federal law...
Am I still wrong?.
Or is it good to negotiate based on the amount of the trademark holder would expend (administrative costs of claiming the name) trying to get the name?..
That is how squatters tend to think, just food for thought.
Just hope they don't come back via an ACPA, then the real fun begins. Though it was not an ACPA, but an asset seizure from an award from a civil court, bodog.com lost thier domain name because it was concidered an asset that resided on US soil. So if someone doesn't live in this country, but has domains on US soil, they could all be at risk.
Sometimes it is better to live and learn than to possibly be penniless...
: picks himself up off the floor: (that would make a great avatar).
Ok, read my sig, but insert "ACPA" into the box...
I read somewhere that if a person's legal name is Microsoft, then if he owns microsoft.net, then he is not infringing on the TM of Microsoft Corp. Is this true?.
Does this extend to a pet where the pet is legally named microsoft?..
If Broke-r didn't have any prior knowledge of their company, and didn't have anything to do with them on the site, surely the fact that llll.com are collectable in themselves see:llll.com countdown would weigh in his favour?.
Sounds like a big company trying to bully the little man ...
How can a domain reside on US soil???.
I reside in Australia, I register XYZW.com , then the US company comes to me asking for it because they have a TM on XYZW .......but I`m Australia and I don`t care about US TM law.
What happens next?.
But if he is using it in bad faith, regardless if he knows or not, it is still his responsibility. Though the "I didn't know" argument has been used successfully, it isn't successful many times. As I pointed out many times, UDRP criteria 3 is "registered and used in bad faith", but I see it now being interpreted as "Registered and/or being used in bad faith". So even though it was not registered with bad faith intent, if the domain has bad faith due to parking, it could work against him.
Wrong, he is infringing, but it is the illegal infringement that matters. If he sold software, then he will lose the domain regardless of his name. My name Ford, if I own fordcars.com and sold cars, I will lose the domain if I am to be challenged because the Ford Motor Company owns the TM in the field automobiles...
Ok, so, if I own an pet dog legally named Microsoft, and I sell furniture, then I am not infringing on the Microsoft TM?.
If, instead I park this domain, and keywords are baby food, showing ads for baby food and baby products, then I am not registering this domain in bad faith right?..
So let`s say that all Parking Companies like SEDO or NameDrive are actualy inviting people to cybersquatting which is illegal so if that is the case , all parking companies should be charged as well.
It`s like people selling drugs.....you don`t go only after the small pieces of the chain but all of them. Am I wrong?.
Interesting indeed. Makes perfect sense .. I think. Are you sure it's that easy?..
I dont think it's easy. Its a battle anyway. Depends on many many factors. Every case is different...
Ok where does your domain reside? Remember where the registry is based!!!..
Http://www.sedo.com/about/policy.php...d=&language=us http://namedrive.com/txt_terms/Named...itions_en.html OTOH, that hasn't stopped one party from trying that right now: http://dockets.justia.com/docket/cou...ase_id-210005/..
I have a great idea, let's stay on topic here... we can go 100,000 different "what-ifs", how about reading what has been posted and deal with that. If you want to read "what ifs", then read every thread in legals.
BTW- what would be your bona fide offering of goods or services????.
Dragon, I believe they should go after the parking companies, it will help our industry tremendously...
If the parking companies are in fact inviting people to cybersquat then by all means they should be punished. But why should parking companies take the brunt of it because an individual cybersquats. By all means they should do all that can be reasonably asked of them BUT they should not be held accountable for someone else cybersquatting.
If parking companies are to be held liable then why not also hold registrar's liable they did of course lease the domain name in the first place, then of course go after the search engine as they do list typo names etc within their SERPS. And of course you then have the hosts who host the domain they are facilitating the cybersquatter as well.
The point? Well the point is obvious, the person who is liable for cybersquatting is obviously the person who registered the domain (and no excuses such as "oh I have x many thousands of domains and never noticed that 1" that some high profile domainers have used in the past,)..
No, it's where the registRAR / registRANT is located that matters in regards to the .COM TLD.
Registrants interact with registrars, not the registry.
To date, I'm not aware of any action, in the post Netsol monopoly era, ever being taken by VeriSign against a registrant.
I realize that may seem strange, especially given the U.S.-centric nature of the internet, but again, to date, it's been the location of the registRAR and registRANT that's been relevant in legal actions regarding .COM domains not the registry.
My point saying that , was not to sue them but actually to compare us (domainers) with them..
It`s very easy for a company to take over a normal person which does not have layers and financial resources that SEDO , ND or other parking companies have. So I`d like to see a fair fight, between one of them and one average company and see what happens..
I`m tired to see these "smartass" TM thjat claim pretty everything..
At the end everybody who register a domain name will be always consider a cybersquatter only because park a domain? That`s totally unfair, I never approached companies trying to sell them any name so my point is that if parking or putting a tag price on it is enought to prove bad faith then I~m getting out of the domain industry. I register a name and I`d like to be free to sell it if I change my mind to develop it...
At least two parties did exactly that, although I only have the link to one: http://cyber.law.harvard.edu/propert...heedShort.html The other one (Size Inc v NSI) sued in 2003. They also lost...
And as should have happened. It is a shame that the defending company however were not awarded their costs. I would hope the same outcome would come if a parking company were to be sued...
To me, I view registrars and parking companies as 2 completely different offerings. While I agree the registrars should not be held accountable for TMed names, I also believe they should not ad supported parking when names are registered. Parking companies are in the expressed business of monetenizing domain names, therefore; should make the effort that they stop supporting illegal TMed domains. They are more in a position to be subjective as opposed to registrars. And the only way that changes as if they are challenged. They could write into their TOS that any parked domains that are illegally infringing on TMs, teh accoutn forfeit all parking monies, regardless of what teh other domains are.
And quite honestly, the only thing squatters care about is money, take that away and they get hurt. I know that will never happen, but one could hope. (And yes, the procedure should not be that easy, there needs to be a process in place where both sides could be heard with the account merely being frozen until an outcome is reached)...
Although in a sense I do agree with what you are saying but why are registrars that different? They are gaining from the registration of trademarked domains. They are receiving the registration fee (i am certainly not suggesting they should be held accountable purely the opposite).
1 problem I foresee with the idea of forfeiting parking revenue if you have trademarked domains is that as soon as a compliant had been raised the parking company would freeze the income. Now what is to stop someone falsely making an allegation of trademark infringement? While the matter is being investigated your income is tied into the parking company who will not release it until you have proved you are not infringing a trademark. It is not necessarily that easy to prove. Trademarks can be registered but it is not a requirement. If this became the norm I suggest that a lot of normal users could end up being the victim of malicious users. There would be spates of peoples jealousy of someone having a domain and parking it and claiming a tm infringement.
I doubt the parking company or the complainant will be in too much of a hurry, they are not the ones losing money...
What about them?.
They lose UDRP's even with representation, and the trend seems to them being more willing to capitulate than fight, in order to avoid the UDRP record associated with a loss...
What else were you looking for?..
Oh...I did not know they already lost some names.....how do you know about it?.
Search for cases using "respondent" and "buydomains" or any of their DBA's to get a nice list of "transferred" decisions.