Need advice

[payochie]

I bought a name of someone here on my island (Curacao); he is track & field athlete. (www.churandymartina.com)

This happened 30th July 2006, today I get a letter from his lawyer that I have to transfer the domain to his client and they told me to take down the site and keep it down, so I did that. But my question about giving him the URL.

I had the site up with some pictures of him doing track & field and a link to some career stats. So I was actually promoting him and not using it against him.

I had no problem with giving him back the url, but the way they did it by sending a lawyer to me and telling me I have to transfer the domain name to his client in 3 days (Which is not possible anyway, due to the domain name has to be 60 days old before I can do a transfer) and I need to pay for the transfer and I have to pay the legal fees about $550.

Friends tell me he has no shot getting back the URL from me and that I can keep it; just I can not use it again. Is this true? I did some research and I am not sure what chances I have.

I know it is his full name and I registered it, what are the chances for me to keep this URL; can I start an Unofficial Homepage for him?

Or should I just return him the URL and forget about it?

Thanks for any help. Here on the island I have no idea what chances I got and not planning to get a big high price layer (yet).

 

[DNjet]

most celebrities do wind up winning their domain , but you were smart just putting up a fan site , so you can't be liable for profiting from this celebrities name , you can push the domain to them if they set up a account at the same registrar , this way you won't have to wait 60 days, tell them you are not willing to pay those legal fees because you don't feel you are liable for profiting from this domain, ask them to draft a document and have it sent to you to for signature releasing you of all liability and fees before you agree to push or transfer this domain to this person. I have had similar instances and was successful in doing this , so I wasn't liable for anything.

 

[McDot]

This situation is specially dangerous if both parties are in the same country.
Local laws are applicable, and some countries have this kind of issue better covered than others.

Basicaly I would say, you should make them aware of the fact, that they only needed do kindly ask you, instead of hiring an expensive lawyer who only wants to make his own profit.

Just further two cents from me:

Keep away from name grabbing!!!
Its not nice, its dangerous and it is not good for the domain trading business.

 

[DNQuest.com]

First, I'll start off like this..... WAAAA! WAAAA! WAAAA!

A TM holder can do whatever they feel like doing to protect thier mark. They do not have to be nice, they do not have to be amicable, they don't even have to give you any breaks if they feel you are squatting.


Now onto this issue, you say you had some pictures and career stats up, but then you go onto say "can I start an Unofficial Homepage for him?". So I have to ask, was the original content for fansite purposes or was it just a couple of items and that's it? The reason I ask is to determine if your original content would e considered a fansite or not. It has been determined that having a couple of pics and couple lines about a celeb is not really considered a "fansite". A true fanstie is a labor of love and it would show on the site itself. You would have indepth history, current news, an interactive MB. Something that shows it is an active site dedicated to the celeb themselves. These are the ones that celebs tend to lose.

Did you have any ads or some type of commercial gain on your site? Did you bring in any money? This does not mean profit, this means did the site make any type of money what-so-ever? (PPC, links). Did you have the site for sale or try to sell it to the celeb?

So not knowing exectly what was on the page or the other history, it is dificult to give anything insightful outside of what I presented already. But if you did bring in revenue from the domain or offered the domain for sale, your chances are pretty slim in keeping it. It also does not matter now what you do with the domain. IT only matters what the original content was and any commercializing you may have done. Usage plays a big role and if you use a TM improperly and you are called on it, don't get your hopes up.

 

[DNQuest.com]

most celebrities do wind up winning their domain , but you were smart just putting up a fan site , so you can't be liable for profiting from this celebrities name , you can push the domain to them if they set up a account at the same registrar , this way you won't have to wait 60 days, tell them you are not willing to pay those legal fees because you don't feel you are liable for profiting from this domain, ask them to draft a document and have it sent to you to for signature releasing you of all liability and fees before you agree to push or transfer this domain to this person. I have had similar instances and was successful in doing this , so I wasn't liable for anything.

To inject some reality, it doesn't matter what the domain owner thinks or feels, the only thing that matters is what the laws say. Trying to get cute with a lawyer could just get them POed and really come after you.

 

[Ian]

Surrender the name to the lawyer and absolve of any responsibility to do with the athlete. If he insists on you paying costs for damages tell them the truth that it was only a site to drum support for him as opposed to destruct his name.
my 2 cents

 

[DNjet]

To inject some reality, it doesn't matter what the domain owner thinks or feels, the only thing that matters is what the laws say. Trying to get cute with a lawyer could just get them POed and really come after you.

I don't know what you refer to as "inject reality" or "cute with a lawyer" , but nobody should just roll over when confronted with a C&D , I have recieved many , the last one wound up paying me $500 to turn over the domain , and yes it was a clear TM , domainers should bargain their way through these things and not just roll over.

 

[payochie]

Thank you guys, I have till Friday 15:00 to hand over the domain or at least contact them, I think.

I'll keep you posted, thanks for all the help.

 

[Brett Lewis]

I don't know what you refer to as "inject reality" or "cute with a lawyer" , but nobody should just roll over when confronted with a C&D , I have recieved many , the last one wound up paying me $500 to turn over the domain , and yes it was a clear TM , domainers should bargain their way through these things and not just roll over.

Registering trademarked domain names is never advisable. Nor is advising others to engage in risky and illegal conduct.

True, some trademark holders will pay a nominal sum to recover a domain name, rather than incur the costs of filing a UDRP. Others, however, will never pay a penny, out of principle. These companies will sooner sue cybersquatters in Federal Court under the ACPA than pay anything. If you register famous marks with knowledge of the trademark and for the purpose of profitting off of that mark, you are, by legal definition, a cybersquatter, and can be hauled into court. The more trademarks that you register as domain names, the more of a target that you become, and the more trademarks that are registered as domain names, in general, the more that we are going to see large companies, such as Microsoft, suing individuals for cybersquatting with potential damages into the millions of dollars.


Brett E. Lewis
Lewis & Hand, LLP
www.lewishand.com

 

[DNjet]

Registering trademarked domain names is never advisable. Nor is advising others to engage in risky and illegal conduct.

True, some trademark holders will pay a nominal sum to recover a domain name, rather than incur the costs of filing a UDRP. Others, however, will never pay a penny, out of principle. These companies will sooner sue cybersquatters in Federal Court under the ACPA than pay anything. If you register famous marks with knowledge of the trademark and for the purpose of profitting off of that mark, you are, by legal definition, a cybersquatter, and can be hauled into court. The more trademarks that you register as domain names, the more of a target that you become, and the more trademarks that are registered as domain names, in general, the more that we are going to see large companies, such as Microsoft, suing individuals for cybersquatting with potential damages into the millions of dollars.


Brett E. Lewis
Lewis & Hand, LLP
www.lewishand.com

I can agree with that , and if you know you have a domain with a TM issue then you run that risk, but is it advisable to have domainers roll over on every C&D? I don't think so , sometimes the TM issue can certainly be in question , like my last one was on zipsearch.us , well zipsearch.com came after it , I had no idea that there was a zipsearch.com developed to tell you the truth , I just wound up with the domain and threw up a search script on it , well their trademark did not distinguish zipsearch.com as the same as my site, their trademark was "advertising" related search, so should I have rolled over and gave it up? not this domainer.

 

[Brett Lewis]

sometimes the TM issue can certainly be in question , like my last one was on zipsearch.us , well zipsearch.com came after it , I had no idea that there was a zipsearch.com developed to tell you the truth , I just wound up with the domain and threw up a search script on it , well their trademark did not distinguish zipsearch.com as the same as my site, their trademark was "advertising" related search, so should I have rolled over and gave it up? not this domainer.

I can agree with what you say too. There is a world of difference between registering generic or dictionary words, that might also be trademarks, and registering domain names because they are trademarks. My remarks were directed toward the practice of registering famous trademarks as domain names, with knowledge of the trademark holder and the intent to profit off of the marks.

A lot of factors go into deciding how to respond to a cease and desist letter, and each situation should be evaluated on its specific facts. I absolutely agree that there are times to negotiate and there are times to fight.

Best,
Brett

 

[DNQuest.com]

most celebrities do wind up winning their domain , but you were smart just putting up a fan site , so you can't be liable for profiting from this celebrities name (these are opposites, it is eiter a fansite or a commercial site), you can push the domain to them if they set up a account at the same registrar , this way you won't have to wait 60 days, tell them you are not willing to pay those legal fees because you don't feel you are liable for profiting from this domain, ask them to draft a document and have it sent to you to for signature releasing you of all liability and fees before you agree to push or transfer this domain to this person (legally, a TM holder does not ahve to do this and holding the domain hostage until you get your way can have a lawyer get angry with you and could make your life more difficult.). I have had similar instances and was successful in doing this , so I wasn't liable for anything. (actually, the TM holder did not move forward with further action and wanted to just get the name. This does not mean you were not liable, it means the TM holder let you off the hook. What do you think would ahve happened if the TM holder wanted to make an example of you?? or better yet, what if a company decided to make an example of a person holding a TM domain listened to your advise a decided to make an example of them?? Yes, this DID happen to a member here.)


But moving on, I did show 2 sides and I did try to find out other information to help the OP with his situation. At no point did I say rollover and at no point did I say he has nothing to worry about.

 

[payochie]

Guys wanna say thanks again for all the posts.

It helps me understand somethings, but also confuses me here and there :becky: .

They keep telling me that this .com can not go to court here on the island and needs to go to .com, which is USA. Not sure how that works.

But I think the fact that me and the person, who wants the url, live on the same island, makes it an easy win for him.

But I will probably hand the URL back to him, just not sure how yet, or with a letter from a lawyer or I'll go myself.

Still have till Friday 3pm.

 

[WhoDatDog]

Lawyers make a living strong-arming people with less knowledge. I don't believe there has ever been a person in your shoes who got in trouble for putting up a single fan site for a celebrity or athlete.

You can cave-in like most people or you can stick up for yourself. Do some research. Read all of the UDRP decisions involving famous people...including the correspondence of both the complainant and respondent...it is often cited and included in the reasoning for the deicision.

After you have the knowledge you should tell the lawyer in a very polite way to "Pay up or shut up", or "Do what you gotta do". There are ways to say this so that the other side knows that you have a clue.

Until then, you can tell them you will be traveling for two weeks and that you will get back to them at your convenience.


WhoDatDog

 

[DNQuest.com]

Payochie....

As I presented, there isn't enough info to help you out better...


WhoDatDog... I guess you missed the part where if may NOT have been a fansite.... I asked some ?s that weren't answered and the OP goes on to say "can I start an Unofficial Homepage for him?"... so it is unclear if it was a fansite or not. You can't give out blanket comments without knowing exactly what is going on... So speaking of getting a clue.....

 

[WhoDatDog]

Payochie....

As I presented, there isn't enough info to help you out better...


WhoDatDog... I guess you missed the part where if may NOT have been a fansite.... I asked some ?s that weren't answered and the OP goes on to say "can I start an Unofficial Homepage for him?"... so it is unclear if it was a fansite or not. You can't give out blanket comments without knowing exactly what is going on... So speaking of getting a clue.....

I can give out as many statements as I like. I have more experience in this area than 99 percent of the people on this board...including you. You like to give lots of advice in areas that you don't even get involved in. I take it you don't have a lot of experience buying and selling individual names, so your advice can be taken for what it is.

 

[DNQuest.com]

More mis-information being passed out...Again..... get a clue...

 

[payochie]

First, I'll start off like this..... WAAAA! WAAAA! WAAAA!

A TM holder can do whatever they feel like doing to protect thier mark. They do not have to be nice, they do not have to be amicable, they don't even have to give you any breaks if they feel you are squatting.


Now onto this issue, you say you had some pictures and career stats up, but then you go onto say "can I start an Unofficial Homepage for him?". So I have to ask, was the original content for fansite purposes or was it just a couple of items and that's it? The reason I ask is to determine if your original content would e considered a fansite or not. It has been determined that having a couple of pics and couple lines about a celeb is not really considered a "fansite". A true fanstie is a labor of love and it would show on the site itself. You would have indepth history, current news, an interactive MB. Something that shows it is an active site dedicated to the celeb themselves. These are the ones that celebs tend to lose.

It was not set a as fansite, just some sort of info/promo site.
I had 3 pictures of him that I found on the net and put them on the site. A link to IAAF with his carreer stats. (all without his permission, but with no harm)

Did you have any ads or some type of commercial gain on your site? Did you bring in any money? This does not mean profit, this means did the site make any type of money what-so-ever? (PPC, links). Did you have the site for sale or try to sell it to the celeb?

It was hosted on a free site so I had 1 banner at the top from and 1 at the bottom Directnic.
Then I added 2 banners one at the top and one at the bottom from a sportsbook.

So not knowing exectly what was on the page or the other history, it is dificult to give anything insightful outside of what I presented already. But if you did bring in revenue from the domain or offered the domain for sale, your chances are pretty slim in keeping it. It also does not matter now what you do with the domain. IT only matters what the original content was and any commercializing you may have done. Usage plays a big role and if you use a TM improperly and you are called on it, don't get your hopes up.

Sorry for the late answers, saw them, but just forgot to answer them.
I think you are right and my chances are indeed very slim.

 

[DNQuest.com]

Yeah, slim chance... You could have gotten away witht eh DirectNIC ads on the site since you do not profit from it and they exsist to keep the hosting free. But the gambling one sinks you... You could have gone the fansite route and said you put up the pics and info while developing a more "interactive" fansite.

At this point, I would have them request a transfer (DirectNIC does not have pushes, but yo ucould do a change of ownership, but that is still a hassle.. that is why I moved out of there), explain that you did not realize you were violating TM law and you truely are resmorseful. As far as the legal fees, they can only collect if ordered by the court. If you offer the domain for transfer (or at least change the contact details to them), it shows you are trying to work with them. The lawyer still has the opportunity to take you to court and do all the fun stuff to get the little guy, but chances are they will just give up and be happy with getting the domain. It all depends if they want to make an example of you or not.

This is one of the bad points of TMs and domaining, while most of the time, if the TM holder gets the domain, they disappear, but every now and then, a lawyer will want to make someone pay. You did violate the law and there are punishments associated with it (if someone so chooses).

Think of it this way, you steal a candy bar and you get caught, you give the candy bar back, does that mean you are no longer liable for stealing? Hopefully they will just realize it will be a waste of time and money if they pursue matters further.

BTW- I would leave the domain in limbo and have no site coming up...