Josh, don't know if this helps but it is worth a look. http://www.keytlaw.com/urls/acpa.htm..
Thanks, Len. The ACPA test looks essentially like the UDRP test minus the 2nd condition of "legitimate" interest in the domain.
Here's an excerpt from one of my replies to the complainant. Do any of you think this qualifies as "bad faith" under the ACPA's definition?.
"I am in the business of Internet real estate acquisition and development and planned to use the domain FruitionDesigns(.)com for the graphical web design division of my business. I didn't have a clue I was infringing on any trademark, and I'm still not convinced I am. I can change my domain name, logos, materials, etc. but that would entail roughly $1500 in overhead costs on my part. If you are willing to buy the domain off me for $1500 to compensate me for these costs, you'll have my full cooperation and FruitionDesign(.)com will become yours by Friday."..
Sounds like John Berryhill may have to help you out on this one, maybe some advice anyway. Looks messy to me. I wish you luck...
Sounds like you may need some leagl advice from someone like john berryhill in first instance.
However a few things spring to mind. first off you say you backordered. I bet this person whoi is currently trying to get the name thought it would drop and now has the arse as you got it.
I see they have the word fruition trademarked but imo that doesnt prove alot.
First thing you need to do is unpark it. just get an 'under construction page' up, it will give him less ammo if he takes it further. also remove the for sale message and take off sedo altogether.
Second, you may want to check out fruitiondesign(.)com.
Its a developed site and I'm guessing totally unrelated to this guy. now if anyone has a right to name it's them lol.
Im sure hes a chancer, but maybe a chancer that will waste legal money and win. dont be inmtimidated though, you had a plan for name and kindly offered name for costs, thats all. do as I say in foirst instance, then take some advice. he will need to prove bad faith and also loss of earnings if taking private, cover arse in first instance. good luck. keep us posted..
Thanks, Arnie. I have removed the domain from Sedo and unparked it. I have a script running on my compy that takes domains I've won on backorder and automatically lists them on Sedo for $399, so I'd forgotten it was parked there.
The reason I'm nervous is that through many months of work I've put together an automated system for domain name acquisition and resale (though I had development plans not resale plans for this one) and have made a few thousand bucks just enough to pay my rent and now I'm afraid of losing all that cash just because I'll need to hire a TM lawyer, even if I DO win. This lousy case would prove a major setback against my eventual plans to leave Internet real estate with some financial independence and move on to something more novel.
PMed Berryhill. Hope he responds soon. Thanks for your help...
Don't PM him, look up his web addy and email or call him is the best option.
IMO if you can show proof that you have developed/developing plans for the name other than his use (basically SEO), I don't think you will have much to worry about. Hopefully he doesn't have a screenshot of the for sale information or parking page... and it didn't get indexed by archive.org.
You will definitely need advice, and John is sharp as a tack, and worth every penny (if it goes to that length). At best, for a couple/few $$$ he may be able to write up a legal letter explaining your position, your grounds, and where he can shove it if he doesn't like the terms...
That tells me right there all I need to know. You claim legitimate use but I don't believe you. I have a feeling neither would a jury, mediator, or a wipo panelist.
My opinion is the name stinks anyways and you should give it up. It's not worth $50. I grabbed VertigoDesigns.COM for less a couple weeks ago...it's a better name with a reg date of 2000. You have to weigh your options carefully. Is this name worth any hassle...
Check if he's indeed a lawyer, and be ready to talk to an actual one.
If you need a list: http://www.namepros.com/legal-issues...me-issues.html..
I don't think FruitionDesigns(.)com is a particularly hot name either in the objective sense. I liked it because it aroused a sort of biblical imagery in my mind that jived with my religious background. Is this particular domain worth going to court over? Probably not. But if this attorney is willing to travel to such lengths to take advantage of me then he (and others) are probably doing this to many other innocent domainers, and a part of me feels I should take a stand in the name of self-respect if my chances of winning are good.
But maybe I'm wrong. I'd like to hear more opinions if you're out there. Addendum: True, I can't easily prove I had prior plans for the domain. I could show logos, templates, etc. to my heart's content but by no means would that constitute "proof." On the other hand, Fruition.net's attorney would need to demonstrate "bad faith", which to me means either my having attempted to sell Fruition.net the domain or capitalizing off Fruition LLC's trademark for my own commercial gain. I did neither of these; never tried selling the attorney FruitionDesigns(.) and never made a single penny off parking. These are two claims I CAN prove...
Did it show ads related to their TM? That is another component that will affect a bad faith/good faith decision.....
Didn't take a close look, but I vaguely recall none of ads having anything to do with their TM. I guess I could re-park the domain for a minute or two just to examine the ads, but I'm not sure it's worth the hassle I receive notice the complaint has made it to court.
Great point though...
After asking around for advice, I (grudgingly) decided to give up the domain. There are certain things in life worth standing up to the more powerful for, but a domain like FruitionDesigns(.)com isn't one of them. Even though Brad's claim has no merit, I can't afford to let a silly court case distract me from making the world a better place.
Good luck to all other domainers who become the subject of this sort of bullying. You have my empathy...
IMO it's what I would've done. Not worth the headache or mental energy or wasted time.
If that happens on my part, it would be best if you let him file a case so he will at least "pay" for what he is trying to prove as you cannot be marked as bad faith because fruition is not a globally known trademark. he cant sue for damages because it is not intentional on your part to register the domain for his inability to use the domain (duh he already have fruition.net why dont he sue all fruition domains). he is just trying to scare you and if he does he will do this everytime to everybody he can. You can tell him to just pay you your out-of-pocket expenses (specially if you bought the domain name) if you are willing to let it go - as this is a sign of good faith on your part and at least get your money back...
Fruition is the name of a product by este lauder. I used to bone a regional manager for este lauder and remember when they launched fruition and night repair. I helped her come up with a sales pitch for her district managers to tech to their store managers to teach to the employees. Using fruition and night repair day after day night after night........
Not sure how they trademarked it when estee lauder has a TM on it..
A C&D is NOT a court docket notice. It's just a threat. Don't worry and don't give a damn. He sounds like a lot of crap trying to scare you off. The best solution is to AGGRESSIVELY dismiss all of their claims, point-by-point, and threaten them back with your own lawsuits charging them with extortion. Ask your local DA to see if they can help you with the extortion case in any way.
If you haven't sent any response yet, just don't offer the domain to them.
A corporation must be represented by an attorney in such a case, who usually cost $180/hour + fees. To appear in the court might cost $2500 at the very least.
In case this idiot really files a claim against you, first check if the case was filed by an attorney. If not, challenge it. If you end up in the court, don't hire any lawyer. Only those low life loser attorneys will do it for less than $1500, and you should never be afraid of them. If you have extra time, drag the court proceeding as long as possible, since lawyers charge by hours.
Seek Legal advice.
Just sounds like they want the domain!.
Not worth it for a domain that only worths $1000~$1500, not to mention that the chance of a legal claim is second to none...