Potential Cyber Squatting

[MonstahMikey]

Hey all

Ive just noticed that someones purchased one of the domain names we dont own (a competitor). Although theres nothing on it at the moment I want to make sure it doesnt get used.

Does anyone have a good "cease and desist" notice I could use to send to them to warn them off using it?

Thank you

Mikey

[ChadKnowsLaw]

I am a big advocate of self-help, but this could quickly turn into a matter where you need an attorney helping you.

Some of the "explanations" I have heard why a competitor or affiliate or domainer think they do not have to turn over a domain that is cybersquatting:

1. An affiliate does not think it is cybersquatting because he is sending traffic and sales to you (of course he does not understand the traffic is yours in the first place)
2. A competitor does not believe you have rights to the name because you have not made a formal trademark filing (I thank them for being so stupid!)
3. Your domain name sounds generic so you have no rights (like prayer, this is the last refuge of a scoundrel)

If a C and D letter does not get the domain transferred to you, do NOT try to do more on your own. I don't care if it is me but you really really need to hire an attorney who knows the ropes on cybersquatting.

[Squirt]

Here (http://www.chillingeffects.org/documenting/notice.cgi?NoticeID=661) is a good cybersquatting letter.

Here (http://www.chillingeffects.org/search.cgi) is a searchable database of C&D letters. If you hit the search button, without inputting anything, the whole database comes up. good stuff :cool:

I have to agree with what Chad said regarding doing this yourself to a degree. You could really mess up any future claims if you go to far yourself.


Hey all

Ive just noticed that someones purchased one of the domain names we dont own (a competitor). Although theres nothing on it at the moment I want to make sure it doesnt get used.

Does anyone have a good "cease and desist" notice I could use to send to them to warn them off using it?

Thank you

Mikey

[rawTOP]

[I'm not a lawyer, take my comments as such...]

What I've read about the legal issues of domainers on the mainstream side of things puts things pretty solidly in their court. For starters, a domain that isn't used is almost never illegal. Let's say there's a common misspelling of your domain name. The domainer could buy it, never use it and essentially make sure the traffic from it never goes to you and there's essentially nothing you can do about it.

To me, an affiliate that finds a hole in your marketing strategy (such as a common misspelling of your domain name), registers the domain, and sends the traffic to you with their affiliate code, is doing something as good for you as if they referred traffic from some other site. You're getting traffic and sales you weren't getting before, which is exactly the point of affiliate marketing.

What's clearly wrong, and what good domainers always avoid, is using a domain to pretend they're someone they're not. But even that has limits. For example if someone registered ForbiddenLads.com.au and named their site "Forbidden Lads of Australia" I'm not sure there's much of anything you could do about it unless there were specific treaties between the UK and Australia that addressed the issue. Here in the US putting " of <state name>" is a common way to differentiate businesses. You would need a trademark on your name to say that your business name was protected outside your state of incorporation and couldn't be used with that type of qualification.

[tigermom]

You know, obviously, since you know this is a competitor, you know they don't mean well.

But, a question to Chad here, what if someone really does register a domain name that is generic? For example, let's say I own brazil-men.com. I don't know of a paysite by that name, but someone could very well come up with one tomorrow. The reason I registered it was to SEO my way towards top placements for that term, then monetize on the traffic.

Can one of the big multiple site programs now develop a site called "Brazil Men" and demand the domain off anyone with any variant of the term?

BTW, I realize what I'd be doing wouldn't cybersquatting, as I would be using the domain, but still, I wonder.

[Squirt]

[I'm not a lawyer, take my comments as such...]

You would need a trademark on your name to say that your business name was protected outside your state of incorporation and couldn't be used with that type of qualification.

Thankfully you're incorrect

Thanks to the ACPA (http://cybersquatting.com/index.php?page=sue-personally), and ICANN's UDRP (http://www.icann.org/en/udrp/udrp.htm), a registered trademark/servicemark is not needed (http://cybersquatting.com/index.php?page=trademarks-copyrights-domain) to get a domain name back, or out of commission.

[rawTOP]

Thankfully you're incorrect

Thanks to the ACPA (http://cybersquatting.com/index.php?page=sue-personally), and ICANN's UDRP (http://www.icann.org/en/udrp/udrp.htm), a registered trademark/servicemark is not needed (http://cybersquatting.com/index.php?page=trademarks-copyrights-domain) to get a domain name back, or out of commission.

Actually, those URLs don't show I'm wrong at all... Quoting from one of the URLs you posted...


The owner of a trademark has the right to prevent another person from using the trademark—or a confusingly similar variation of the trademark—in a domain name, if the person has a bad faith intent to profit from the domain name. Congress has determined that it is unlawful for a person to register a domain name containing another’s trademark with an intent to profit on the other’s trademark. However, a trademark holder cannot prevent another from using the trademark in connection with sufficiently different goods. As such, Congress has required a trademark holder to show that the cybersquatter had a bad faith intent to profit from the domain name.

So if I register a domain and don't use it, there's nothing you can do about it. I have to have an intent to profit - if there's no use, there's no intent to profit. And the quote also shows that if I'm using the (unregistered) trademark in a clearly differentiated way and not pretending to be you - there's probably nothing you can do about that either...

Making up examples - Let's say you have brazilboys.com and I register brasilboys.com and the branding on my site is "Brasil Boys Bareback" (notice I've added a word which I consistently use, I may even redirect my brasilboys.com to the canonical URL of brasilboysbareback.com) and my site looks different than yours and isn't pretending to be yours - then it's questionable whether you could do anything. Now, in the unlikely case that you had a registered trademark for "Brazil Boys" then my use of "Brasil Boys" would be confusingly similar since it's the same industry and you could have grounds there. But the thing is, I could then try to challenge your trademark saying it was too vague and should never have been issued.

I'd suggest you read the article on SEOmoz (http://www.seomoz.org/blog/trademark-law-and-domain-names-acpa-or-udrp) about the issue. It's written by a lawyer. But realize that it just deals with domains with trademarks. You first have to establish the validity of your trademark before you can do any of what she's talking about...

Professional domainers know how to not step over the lines. If you get in a fight with one of them you'll wind up spending tens of thousands on legal bills and it's unlikely you'll win. It's actually much cheaper to pay them $5,000 or so for a domain than to pay a lawyer $50,000 to fight the lawsuit which you may not win.

[Squirt]

Actually, those URLs don't show I'm wrong at all... Quoting from one of the URLs you posted...


Argh stop being lazy and read those links, and the links within :rolleyes:

When you register a domain name you agree to the ICANN UDRP and as stated in their policy a registered trademark is not needed to stake claims to a domain.

From one of the links I posted:

"Courts consider several factors when determining whether a domain name registrant acted in bad faith, including but not limited to: the registrant’s trademark or other intellectual property rights (if any) in the domain name; the registrant’s prior use (if any) of the domain name in connection with the bona fide offering of goods or services; the registrant’s intent to divert consumers from the trademark owner’s website to a website accessible under the domain name, creating a likelihood of confusion as to the source of the website; and the registrant’s offer to sell the domain name for financial gain without having used the domain name in for the bona fide offering of any goods or services."

[gaydemon]

Do you have the name or brand trademarked?

I presume they started or registered the name long after you started using it.

What I do know is that UK trademark and copyright law is a mess unfortunately and very costly.


Hey all

Ive just noticed that someones purchased one of the domain names we dont own (a competitor). Although theres nothing on it at the moment I want to make sure it doesnt get used.

Does anyone have a good "cease and desist" notice I could use to send to them to warn them off using it?

Thank you

Mikey

[rawTOP]

Argh stop being lazy and read those links, and the links within :rolleyes:

When you register a domain name you agree to the ICANN UDRP and as stated in their policy a registered trademark is not needed to stake claims to a domain.

You're missing the point. Multiple people can have valid trademarks and in those cases the person who owns the domain keeps the domain provided they're not pretending to be the other site. Even if you have a registered trademark it can be expensive to go after the people using the trademark and if you're trademark is so general that it's questionable, then you may wind up having to even defend the validity of the trademark.

My point was that the process can be long, complicated and expensive and if you're dealing with a domainer it's often cheaper to pay the domainer what they want for the domain. If it's an affiliate you may just be happy you've got smart affiliates promoting your site and plugging the holes in your marketing plan.

[Squirt]

Well why didn't you say so? lol

There are so many more ways to fuck with people trying to fuck with your business then submitting to them and paying them money to do the right thing. We've proven this many times over the years on these webmaster boards.

Now please excuse me as I have a .net domain to register ;) j/k


My point was that the process can be long, complicated and expensive and if you're dealing with a domainer it's often cheaper to pay the domainer what they want for the domain. If it's an affiliate you may just be happy you've got smart affiliates promoting your site and plugging the holes in your marketing plan.