Well if you are using their company name/trademarked name you are out of options. Just leave the domain empty and let it expire.
They have to prove that your using these domains to trick people into thinking it is their domain. If an average person would confuse your website with theirs you will lose, but if your website is completely different, for example, if your domain was googel and it was about the mathematical study of a googel and not a way to search the web, then google wouldn't be able to do anything about it.
So, did you get these domains with malicious intent or are they for a completely unrelated purpose from the people who sent you the C&D?
but what aboout paypaksucks dot com and other domains like this.. they are using direct name of paypal and didnt loose it. Even paypal couldnt do anything.
what you think?
I hope you've got some deep pockets. If it is a big company and the two words you have in your domain are copyrighted, registered, trademarked, etc., then you will need to give them up, no questions asked. They don't belong to you, even though you purchased them, they are not rightfully yours and I do believe the company in question can easily capture those domains from you.
No.. I didnt mean to direct their traffic on my site. The domain is completely different.
i will see what they can do.
That might be too late if they slap a trademark lawsuit on you.
>> but what aboout paypaksucks dot com and other domains like this.. they are using direct name of paypal and didnt loose it. Even paypal couldnt do anything.
do you honestly think that Joe Surfer will think that Paypal put up the the paypaksucks dot com site? Also, paypaksucks dot com has free speech implications, meaning they're saying that "paypal sucks," and registering that name is the same as shouting it outside their headquarters. Your site is totally different as far as we know.
My advice: do as they say, unless you want to lose everything you have.
He stickied me his domain name and it's not completely a black and white case.
Their domain is "commonword_anothercommonword.ext"
Both words in the domain are common words that can't possibly be copyrighted. The only way they can copyright them if they are used together.
His domains are,
They can't control every single instance of those two very common words. Although, if they could prove that he purposely bought those domains with the sole intent of trying to convince people that they are actually "commonword_anothercommonword.ext" then they might have a case. If the design and layout is completely different and the approach is slightly different then he should be ok.
In any case, I doubt a judge would throw the book at him and fine him millions of dollars, because it is a debatable idea and the judge would probably see that and might only ask that he remove them in the end. On the other hand, if the judge sees that this was done with malicious intent, the judge could throw the book at him. Only he knows if he is trying to dupe people into believing that his site is theirs. If he isn't, then he should be fine.
My only suggestion is defend yourself if your being honest and believe you can convince the judge of that. At least then you don't lose thousands in legal fees. Thats how most big companies crush the little guys. Even if the little guy wins he go's bankrupt paying the lawyer fees. You don't need a lawyer in all cases. Read through a few law books, the law wasn't created to confuse people and judges are really good about seeing through the BS. The judge has to follow the law on whether or not you win, but it's completely up to the judge what penalty he dishes out. So if you make a good case and the judge respects you for defending yourself then even if you lose you might not even get a fine.
|He stickied me his domain name and it's not completely a black and white case. |
No, it is not black and white. But, it is so close to the breaking point that I wouldn't chance it. I too saw the domain in question and personally I'd give it up, it just isn't worth it.
The domain uses the company name but split up by another generic term. It is so close that it could swing either way. But, the right judge, the right defense attorney and you'll probably be spending some money to defend your ownership.
A visual example...
Here are the two domains owned that are in question...
Here is the company name that is claiming their rights...
The second version above genericname2name1 is probably a black and white case and the one I'd be concerned about.
His biggest problems are that A) He bought the domains after they did B) He bought two
A judge could see intent. Even so, it really all depends on the law in this area, I really don't know anything about it. I'm not sure if they even have defining laws in this area. His best bet would be to look up trials that are similiar to this (if there are any) and see what the outcome was. Thats all a lawyer is going to do anyway. Judges have to use precedence in almost all cases. If there is no precedence, then it would be kinda fun to be in a case that sets precedence. Just don't bring a lawyer, would cost waaay to much.
I had a domain name with a big company name in it. I got the C&D. I trashed the domain name. Unless you can afford a legal battle, give it up. You can't abuse trademarks.
|but what aboout paypaksucks dot com and other domains like this.. they are using direct name of paypal and didnt loose it. Even paypal couldnt do anything. |
I'd imagine it's legal because it's obviously not paypal and obviously not affiliated with paypal and because US copyright/trademark law allows for use of a copyright/trademark in the case of criticism (but hey I am not a lawyer).
The reason companies defend their trademarks is because of precedent and to keep the domain name from being diluted.
I guess it comes down to some simple questions...
Are you making a much money from these domains, or do you plan to? If not, then why put yourself through a bunch of sleepless nights over something that doesn't amount to much $$$ in the first place? Is it really worth it? Domain names are a dime/dozen --what is your attachment to these particular names?
Also, is it smart to build a site for long-term success on a domain that others have asserted a claim to? (valid or otherwise)
Or, to put it another way, why add rooms to a house with a cracked foundation.
Companies also have to actively 'defend' their names by going after even the smallest of fries. If they don't, the courts look upon the company as not really concerned with their name to begin with and may side with the defendant.
The famous thermos scenerio
if you are incorporated and insulated from damages, tell them you'd rather not give up the domains, but that the whole process has cost you $500 in time and expenses, and you'll give them back for that.
i know someone who did that to a pharma company and it worked.
(not the best option, but an option)
You could hold out. The longer they have to pay lawyers and deal with it the more they may want to give up or at least buy you out.
That was a kid named Mike Rowe who had a software company. Microsoft sued him adn got lots of bad press. He ended up with a settlement. Of course you could lose and be liable for millions. Likely you would just have to turn the site over unless you were up to something malicious.
[edited by: Webwork at 3:48 pm (utc) on Jan. 14, 2006]
What was said about confusing the customer is important. So is the deep pockets stuff.
Think of a major retailer in the US that has generated criticism, and call it 'Bigbox' for discussions sake.
There is a bigboxwatch.com that is devoted to exposing the controversial practices of that retailer. This is legal but risky - big companies will defend their trademarks, so they are itching from the start to go after such a website. If the website isn't careful in what they publish, libel suits are likely, and they might pile-on a trademark dispute just to make your day!
I have talked to some corporate attorneys (not related to bigbox) about SLAP lawsuits (Strategic Lawsuits Against Participation) and they knew of fairly large companies that were obviously trying to bankrupt their critics (or competitors) through lawsuits. You gotta be careful who you dance with, and how.
What usually ends up bankrupting people is the lawyer fees and not the frivalous lawsuits. People get sued and they automatically think, "oh my god, I need a lawyer." Of course this the action these big companies want you to take. People tend to forget that even if a jury can be persuaded by some slick snakeoil salesman that judges have seen it all before. Judges also know the law and their jobs and careers hang upon getting it right. Even if your judge is a complete idiot, they still have appeals court.
A case like this would normally be resolved via the UDRP. Been there, done that on the respondent (domain holder) side. The party alleging rights in the domain has to prove three elements to win a UDRP case, but those elements are so vague that it appears arbitrators sometimes decide who they want to find in favor of, then construct their views and evidence accordingly. And the respondent rarely wins. I've read through at least 200 UDRP decisions and a lot of commentary and my opinions are based on my research, what I experienced and discussions with attorneys who specialize in representing parties in domain name disputes. I also was involved in a later dispute which I hired an attorney to represent me on and which was settled out of court and without a UDRP proceeding.
If you want to sticky me your site (if it's active) or answer some questions about it, I'll be glad to reply here or privately with my opinion on the likelihood of winning a UDRP case and what things might cause you problems.
Also, I would not initiate anything involving money changing hands. That would almost undoubtedly lead to losing in a UDRP case.