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I have been contacted by the owner of a domain name BUT THIS IS NOT YET A LEGAL MATTER AS NO ATTORNEYS ARE INVOLVED (they may be soon, however, hence this posting). They claim in plain English to have rights to it. I have been planning to use it for some time (5 years) but have not yet finished the project. I *unknowingly* used a name that they received a service mark on AFTER I registered the domain name.
I offered to give them the name for a modest fee ($1500) to cover my reprinting costs, renaming the site, getting the logo changed, redoing the graphics, etc. They instead are threatening to pursue UDRP arbitration. They are accusing me of profiting from the name but that is silly because the site was never anything but a placeholder page by Network Solutions. (Incidentially, I have business plan documents spanning 5 years that show the web site with the name in question was being developed by me but not yet publicly). Network Solutions put up a page with a bunch of links and they wrongly claim that I had somehow profited from those links!
I can't reveal the name here, but let's use a fictitious example. Imagine the name of my site is "BeautifulRocks.com" (imagine it's a diamond ring company), and that's the company's service mark (not the company name, but the slogan they use in ads). Now let's say that because I now know that I might be infringing on someone's name ues, I don't want trouble, so I politely say "it's yours" for a small fee to cover my expenses to rebrand my planned site. But they say "Sorry" and pursue UDRP arbitration.
I'm not going to just GIVE THEM the name because they're not being very nice about this matter and are taking a rather bullying stance. So I am thinking of posting a site there in place of the Network Solutions page, that would have something unexpected. For example, it would still be called "BeautifulRocks.com" but it would have NOTHING TO DO with diamond rings. Instead, I would make it about rock climbing as a hobby. And suppose that the site was simply informative and had no revenue-generating potential to it-no links, shopping cart. Nothing. Just pure educational information. Can UDRP still reassign this?
I am planning to do something like this because I am really upset that the company in question is trying to strong-arm me into "turning over" the URL I in GOOD FAITH ONLY registered years ago and fully intended to use for commercial puposes. They did not obtain their rights to the name until after my domain registration, and they waited about 5 years before even telling me that this was an issue. I think they should just pay the $1500 fee, but they want to right.
So I was thinking that putting up that "other" site (the rock climbing one) may allow me to successfully show that I'm not making money off their name, it is NOT confusingly similar (people who visit my site will quickly realize that I don't sell diamonds), and does not in any way dilute their mark.
I realize no one can give legal advice here. I'm just trying to determine if one can avoid UDRP arbitration by changing the nature of the site in question if in fact it was never anything but an "under construction" site.
as always, talk to a lawyer.