Welcome to WebmasterWorld Guest from 220.127.116.11
When I was born I was christened <with a name, that in part, includes the letters of a famous company>. This is a female name of Yoruba origin and sometimes last year, I registered a domain name with my name in it.
Two days ago, <the big company> sent me a threatening "cease and desist letter" about the domain.
I have replied them and I stood my grounds that <snip> is my name so I have the right to hold the domain.
Does anybody know more about the laws in terms of domain names? Do you think I should "cease and desist"? What do you think I should do?
[edited by: Webwork at 6:52 pm (utc) on Oct. 4, 2007]
[edit reason] It's in your best interest to not "name the name" and that also fits our policy. [/edit]
My 2 cents:
Cease and desist what, exactly?
Are you using the name on a site?
Are you selling products related to Nike?
If no to the last question, then I see no problems, but I am not a lawyer nor specialist in this subject.
Hope this helps.
Just parked it? Not too savvy.
Developing it and having it be about sports, sportswear and equipment? Not too savvy.
A personal blog about your family life, steering clear of topics that might evoke the ire of the sports gods? I'd fight that battle if your birth certificate backs you up.
Moderator's Note: This IS a 1 off. I don't want to start reading about other people's dilemas with family names and domain names. Thank you.
But, if this site of yours is personal and not creaming off the company's hard work, then you should resist (nicely, making your case) IMHO. It might or might not win you a case with the registrar/whatever, but barratry/bullying *IAA-style is not legitimate either... Again, IMHO, since IANAL.
Sometimes company lawyers get trigger-happy in the face of repeated scamming attempts...
When a person is christianed with a name it becomes an inseparable part of his/her existence and he/she has all rights to be known by that name for what ever purpose, selling sports or preaching or .....
(Present remarks are just that of a human being and not that of an expert's legal view.)
Not knowing what jurisdiction you are in may influence the law, but at least in Pennsylvania, no one can stop you from using your name for whatever reason for business, even if it is a corporation and trademarked. If that was not the case, I guess Marshall's could go after me :)
The two things are quite separate.
To quote from a somewhat different context: "It's not what you have, it's how you use it."
That information is very relevant, and I don't think you'll get much useful advice without it!
While the law, and precedent, varies from country to country, it's often not so much the domain name - as what you choose to do with it.
@algari, The company was born before me but my name has been given to females from that part of the world before the company was established.
I plan to make it a personal site where I can put my portfolio when I finish at Uni.
Incidentally, will your portfolio or the line of business have anything to do with what that company does, in any way?
Adding, did a little hunting around:
The company was born before me but my name has been given to females from that part of the world before the company was established.
Incidentally, FWIW here's what ICANN says about dispute over a domain name, in 4C:
c. How to Demonstrate Your Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint.
When you receive a complaint, you should refer to Paragraph 5 of the Rules of Procedure in determining how your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights;or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
[edited by: Marcia at 7:59 am (utc) on Oct. 5, 2007]
My portfolio does not have anything to do with the company.
The company has its headquarters in US and they have branches all over the world including UK, I live in UK but not originally from UK.
Thanks for the links.
I believe Marcia was saying that, as you will have the domain with some content on it, it will be noticed by the search engines and the age factor will not be so much of an issue when you do put your achievements on it. Just one of the factors in SEO nowadays.
Marcia, correct me if I'm wrong.
how does the timing of my personal site affect anything
Yes, longevity of having an active site on a domain name helps to build a profile of trust over time.
Logically speaking, if it's my given name and I take a domain called pepsismith.com and have been in university studying with a specialty in mallard duck photography, you bet I'd be putting up my best duck photos while still in school.
In the case of Nissan it's a one word domain and was at one time used for a car business. Being one word, even though it's unfair it could lose type-in traffic for the Nissan company, looking at it from a household word and branding POV.
Is the domain name in question here just one word, and if so, how widespread is the branding for that one word for the complainant? Is the domain in question here, or has it ever been, used for anything related to what the complainant's business is known for?
[edited by: Marcia at 9:11 am (utc) on Oct. 5, 2007]
Don't forget Quadrille's Oft-Quoted 9th Law: "If you own a quality domain name, then use it - or you may find the quality was an illusion"
It really is the best defense. And in this case, it may be all the defense you need.
[edited by: Quadrille at 10:48 am (utc) on Oct. 5, 2007]
Is the domain name in question here just one word, and if so, how widespread is the branding for that one word for the complainant?
And I just want to point out that in the Nissan case the little guy won.
This name falls into the same category except that different lawyers are involved. More pertinent is the situation that while parked, the site in this thread showed/shows (via archive.org) contextual ads for that company's products, although I cannot see them from Australia. I see ads about Nigeria. Not being familiar with this name, I could have added 2+2 and got 5.
Legal advice is the best course. Perhaps a friendly tradeoff for a lifetime supply of the said products would be good publicity for both? :)
Under ICANN rules you own the domain. To get it from you they have to prove three things:
They have a right to the name
You don't have a right to the name
You are using the name in bad faith
If they fail to prove even one of those they don't get the name. The first is easy to prove. The second is a bit fuzzy but they may still prove it. Only you can prevent them proving 3. And you can do it by the simple expedient of putting some personal info on the domain.
I don't see the problem.
There have been cases where a "reputation management" company uses a tool to find the client's name within a string and then sends a nastygram automatically.
I've reviewed and responded to such "nastygrams" on behalf of others. The nastygrams, themselves, are a bit problematic.
The nastygrams/notices (email or letters) are couched in legal terms, asserting that certain law(s) apply, setting forth a legal analysis and threatening legal action.
But wait . . It's not a law firm writing the letter. It's some company.
Can non-lawyers sue or threaten suit? Yes, but non-lawyers typically act only for themselves. When non-lawyers start taking on diverse "clients", on whose behalf they assert all manner of distinct legal claims against a diverse public I'm inclinded to call that practicing law without a license, which in many jurisdictions is a criminal offense for which people go to jail. When a non-lawyer starts contacting people to assert claims against them I start reaching for a red card.
What if a lawyer signs his or her name to the many many letters that the automated trademark tracking firm issues? What if those letters are far more "form letters" relating to "strings of letters" than letters by a lawyer manifesting a thoughtful legal analysis of facts and law - as might be applied to those strings of letters?
Well, despite public sentiment, lawyers have an ethical and professional duty to act with a degree of circumspection and respect for the law. Lawyers are expected to act like a professional, schooled for years in the law, and not like a machine that simply responds to strings of letters in domain names. A lawyer who acts like an arbitrary and capricious machine - by endorsing his or her name to "machine decisions" - risks his or her license to practice law. When I see a lawyer's name endorsing what is clearly a machine decision I start reaching for a yellow card.
An automated legal threat system creates a great deal of unjustified anxiety, expense and grief. These systems can, in their own way, be as bad as the people they are supposed to be tracking and catching. They need to be reigned in.
[edited by: Webwork at 2:00 pm (utc) on Oct. 8, 2007]
Someone will likely file a lawsuit against such a firm, choosing the worst example of a groundless and thoughtless threat of action, name that person as the "class representative" - which would likely call forth a few more folks in his/her shoes - then demand the company's list of past notices sent, scan that for other egregious examples, join those folks . . .
Cybersquatting is wrong.
Indiscriminate assignment of claims of legal wrong to mere strings of letters in a domain name is another wrong.
And I just want to point out that in the Nissan case the little guy won.
As they say its not the winning that counts but the taking part. And that's the bit that you have to question whether its worth the fight.
Domain names are cheap get another.
If the OP fought and won she would still (probably) not be able to use the domain for anything related to the trademark owner.
Why have a domain that's limited to what you can put on it?
For anyone interested in the nissan case US Court of appeals Ruling [ca9.uscourts.gov] 135KB PDF