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GoDaddy customer reviews : Recommend I pay for GoDaddy?? I'm being threatened - is this letter Legit?

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Not sure if this is just a scare tactic to push me into transfering this domain. Person I spoke with at Moniker advised me that this is just a scare tactic and that I should reply with "make me an offer" if I don't care about keeping the domain, which I guess I really don't. But I don't want to be pushed around and forced into transferring it either.

Anyway, brief history behind this domain name. I bought it about 3 years ago, as an available name through GD. I ran an email business with it for about a year, and then when I desolved the business, I just left the name with the default nameservers of Moniker. Never have I contacted this company threatining me (not that I've been accused of that).

I don't mind losing the name if it comes to that, I just don't want to be sued or made to pay for legal fees. Here is the note that I recieved both through email and through registered mail. The Law firm is completely legit - that I do not question.

FYI my domain, and the domain of complaining party is exactly the same, and just differs by .com/.net.

Here is the letter. Please help: July 11, 2007.

Dear Mr. XXXX:.

This firm represents XXXX, Inc. in connection with it's intellectual property matters. As you may know, our client offers a patented gardening system under it's trademark XXXXX , which is the subject of United States Trademark Registration Number XXXXX, and the pending U.S. Trademark Application Serial No. XXXXX, for the design Mark XXXX. Our client has used the trademark XXXXX for more than twelve years, specifically since at least as early as November 30, 1994.

Operates a web site located at http://www.XXXXXX.com/, in connection with it's business.

During the past twelve years, our client has expended significant time, money, and effort to establish public recognition of it's mark XXXXX in connection with it's high quality, patented planters. Our client has used this trademark in advertising and promoting it's sale of theses goods throughout the United States. As a result of these efforts, our client has established substantial consumer recognition of the XXXXX trademark and good will in connection therewith. This trademark has become one of our clients valuable assets.

It has recently come to our attention that you have registered the mark XXXXX with Melbourne IT, Ltd. (dba Internet Names Worldwide) as part of the domain name XXXXX.NET. Because of the increasing commercial importance of the Internet and our clients own site on the World Wide Web, XXXXX.COM, your use of the XXXXX.NET domain name will create confusion among internet browsers who will believe any site identified by this name is maintained, sponsored by, or affiliated with our client. We note that your site currently allows visitors to access a direct link to XXXXX, which results in links to sites selling our clients and it's competitors gardening systems. This renders consumer confusion and deception even more likely. Further, your site contains links related to gambling, dating services, and even criminal attorneys, all of which dilute our clients mark XXXXX.

Your use and registration of the domain name XXXXX.NET therefore violates our clients legal rights in it's XXXXX , trademark and constitutes unfair competition and infringement of our clients federally registered trademark, in violation of the Lanham Act, 15 U.S.C. 1051 et seq., including the federal Anticybersquatting Consumer Protections Act, 15 U.S.C 1125, as well as the common law. Such registration and/or use may subject you to all certainly not in any way limited to cancellation or transfer of the domain name XXXXX.NET, our clients actual damages or statutory damages in the amount of not less than $1,000 and not more than $100,000, and the possible recovery of our clients attorneys fees and costs associated with any litigation.

Based on the foregoing, and in order to foster fair competition and preserve XXXXX, Inc.s intellectual property rights, we demand that you immediately:.

(i) Cease and desist from all use of the XXXXX.NET domain name;.

(ii) Transfer and assign all rights and interest in the domain name XXXXX.NET to XXXXX, Inc., and provide all documents related to this transfer to our client; and.

(iii) Advise us in writing of your cessation of use of the XXXXX.NET domain name.

Please provide us with immediate written assurances of your intention to comply with the foregoing. Provide these requested assurances as soon as possible, but by no means later that close of business on Tuesday July 31, 2007. If we do not receive your assurances within this time, we will advise our client to take appropriate steps to prevent any continued infringement.

Nothing in this letter should be construed as an election of rights or remedies. This letter is written with our prejudice to any of our clients rights or remedies. XXXXX, Inc. specifically reserves all of it's rights and remedies under applicable federal and state law.

We hope we can resolve this matter amicably, and look forward to receiving your assurances promptly.

Sincerely yours,.

STITES & HARBISON, PLLC.

William E. Jackson.

WEJ:cr.

Cc: Moniker Online Services, LLC.

20 SW 27th Ave., Suite 201.

Pompano Beach, Florida 33069..

Comments (19)

Several things here, good and bad. According to what you said, you used the domain as a bona fide offering of services and built interest in the domain. That is good. But then you had it parked, that could hurt you. If the ads should the TM holder or their competitors ads, that is not good. The TM holder needs to prove "registered in bad faith", but unfortunately, many panelists will go the way of registered and/or used in bad faith.

At this point, it is up to you. Can they prove bad faith with the ads? Maybe reply with how the domain was used by you and let them know that in no way were you competing with them. Maybe tell them you are relaunching the site. But do it very very very nicely. It would be nice if you had some backup documentation to support your usage of the domain previously. Maybe get a domain lawyer here to look over your response.

So it is up to you to see how far you want to go...

Comment #1

I can live with losing the domain if it comes to that... The part that scares me a little is this: Such registration and/or use may subject you to all certainly not in any way limited to cancellation or transfer of the domain name XXXXX.NET, our clients actual damages or statutory damages in the amount of not less than $1,000 and not more than $100,000, and the possible recovery of our clients attorneys fees and costs associated with any litigation...

Comment #2

The only way they could get that is if they sue you (wipo cannot award damages only the domain).

This is a normal scare tactic to try and get you to transfer it without a fight.

Under no circumstances should you reply with "make me an offer" this only strengthens the bad faith argument.

Do as DNQuest.com, write a detailed letter stating the fact that you are not and will not compete with the other service. Do not under any circumstances lie to them as if this goes to wipo and you were proven to lie (or even hinted at that you lied) then they will look very dimly on the situation. Some of the things that you should use is the fact that you have had the domain for 3 years (when did the other site start was it prior to 3 years ago and also were you aware of the other site if it did exist).

When you have composed the letter your best bet is to leave it for say 24 hours then read it again, ensure that it still makes sense, double check any facts you have stated and ensure you do not appear confrontational. If you write it on the spur of the moment and send it you may find it is littered with mistakes and that maybe you should not have included (or maybe included more) some information. Also as DNQuest.com suggests if at all possible get a domain lawyer to look over it and ensure all looks ok and that you have covered everything...

Comment #3

They can only do it under the ACPA, under UDRP it is only the loss of the domain. It is a scare tactic that is commonplace to make you give in. Usually, if you do as they ask, they usually go away happy...

Comment #4

Ok, well on Monikers recommendation, I already went ahead with the "make me an offer" response. Here is exactly what I said (not the best english was used in my response but it was late and I was tired, and a bit peeved): "This domain has default nameserver settings with the registrar and I am doing nothing to infringe on the reputation of anyones business. I will be happy to remove the name servers so that nothing comes up when this domain is clicked on.

If you are legitamitaly intertested in this domain - make me an offer. I've had it for several years and had planned to use it as an email service again some day...

".

Now what? Transfer the name to them with my tail between my legs? I feel like I have been set up - hook, line, AND sinker.....

Comment #5

Wait for a response and see what happens.

Why did Moniker suggest you did that? It is a very foolish thing to suggest...

Comment #6

I was also going to ask why the OP asked the registrar for "advice" involving a.

Legal matter. Unfortunately it appears he's already followed it...

Comment #7

I wasn't asking for advice on a legal matter, I was asking for advice on the legitimacy of the email altogether. Moniker was supposedly CC'd on the letter, and since they probably deal with this stuff all the time, why would I not ask them?.

My actions were my own, and I am not putting blame on Moniker, even if it was bad advice, but certainly it was not unreasonable for me to ask them in the first place...

Comment #8

I understand. If anything, the one from Moniker could've replied back with like,.

"We understand your query, but we cannot give what might be considered as.

Advice on a legal matter. We recommend you seek an attorney for such.".

If this leads to a filed action (knock on wood), don't blame Moniker for heeding.

What they replied. Then again, their contract likely has a term saying like they.

Aren't liable for whatever their employees tell you.

Hopefully your issue will be amicably resolved...

Comment #9

Exactly what I thought..

The letter you got is a standard cease and desist letter..

So they are a sending a C&D and you reply with make offer. I would first attempt to defuse their claims. It could be a scare tactic but if you don't provide adequate defense you could lose in a UDRP for example..

Plus it's a law firm ~ be careful with the lawyers...

Comment #10

CSR's giving legal advice... gotta love it! (Verizon employees always loved to try to explain to me what I could and couldn't do under my contract and what rights/remedies I may have, and at least they were agents to a party in the contract ).

Lesson for anyone: CSR's and forums are neat places for information, but advice is best given by your attorney.

My best to you,.

-Allan..

Comment #11

I don't have an attorney.

Never needed one....

Maybe I should just give them the damn name.....

Comment #12

Hey, don't give up so quickly. You didn't have bad intentions, so try to win this situation - either sell it or keep it..

You didn't need one, but maybe now is the time to look around for a good domain lawyer. As the market gets more competitive and legal proceedings look like a business shortcut, we all are going to need one sooner or later...

Comment #13

A good note for us all; I missed your mention of the "sleep on it" rule my first time through.

-Allan..

Comment #14

You'll be safe asking for up to $1,000-$2,000 as far as I can remember.

Myself and RJ have discussed this as I have been in a similar situation, but don't let them push you around for less than this amount because it will cost them more in legal fees to prise the name out of your hands.

They simply wont take you to court out of principle because at the end of the day it's about money and nothing much else really!.

- Luke..

Comment #15

Is this a 100% guarantee??? I am glad you can say this with confidence, especially not knowing the domain and all the circumstance surrounding it. Just hope he don't meet a lawyer with a chip on his shoulder...

Comment #16

That's just not true... While that might be your own capacity for risk, it isn't prudent to assume that they will not take you/someone to court out of principle or the desire to set a precedent of agressive protection of their IP.

-Allan ....

Comment #17

If you legitimately used the name in the past for a non-infringing use, pull out all the evidence you can supporting this. Explain that your intent was not to infringe on their TM and that you used it for a use that was not the same as their TM covers (if in fact these are true). I you can honestly say you were not doing anything that might harm them, then sometimes it may be best to honestly say that. You might also further explain you had the domain for another purpose and the offer to sell is not to make a profit but to recover your moderate amount of expenses. You've already done some things that might be used against you. What I've suggested just supports that you didn't do them with intent of bad faith and have some proof.

Of course without knowing the domain or the uniqueness of their TM, this is all speculative advise (personal, not legal advise). Your mileage may vary... void where prohibited, use at your own risk, and all those other common fine print disclaimers......

Comment #18

Hi,.

This is a very unfortunate situation. It is tough when someone tries to bully and I don't think Moniker did you any favors by giving you the advice they did. It certainly makes me think twice about ever doing business with them, if this is the kind of advice they give.

In any case, take a look at this url and see if it helps you at all: Avoid Trademark Infringment When Registering A Domain.

Good luck!.

Rich..

Comment #19


This question was taken from a support group/message board and re-posted here so others can learn from it.

 

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