Not trademarked, but it's still our name!

[GAMEFINEST]

Boston market does sound good for lunch today,

on a different note, just make an good offer , if no response, email another offer

 

[Onward]

[good]/[service] are interchangeable her.



You are looking for some sort of general formula.

Let try this:

Many women are beautiful.

I know a woman named Jane who is beautiful.

I know a woman named JoAnne who is beautiful.

So, you are asking me whether Janet beautiful.

In order to answer that question, I'm going to have to have a look at Janet.

So... "Boston Hotels"... Are you aware of some particular chain of hotels that calls itself that; which has called itself that for years; and which a substantial number of people recognize as referring to a particular chain of hotels?

What I can say is that "Boston Hotels" is a descriptive term, and it is likely (I haven't looked) that there are probably quite a few folks in the hotel business that use the term as a descriptive reference to hotels in Boston.

Now, yes, people fry chicken in Kentucky. It is indisputable that a chicken, when fried in Kentucky, is in some sense a Kentucky fried chicken. But there is no way in blazes you are going to set up a business selling "Kentucky fried chickens" without a legal problem, because the relevant consuming public has grown to associate that phrase with a particular entity that is the beneficiary of that recognition and goodwill.

So, let me ask you... how about Intercontinental Hotels? That is descriptive of a hotel chain which operates on more than one continent. However, there happens to be ONE chain which is widely known among travelers and in the industry as Intercontinental Hotels.

I am going to the Intercontinental Hotel in my Thrifty Rental Car from the airport after arriving on an American Airlines flight, so pick me up some Maine Lobster from the Giant Supermarket.

Okay, now I highlighted five terms in that sentence. One of them is not a trademark. Which one, and why is it not a trademark?

Thanks for taking the time to go through this. I appreciate it.


Is it Giant Supermarkets that is not a trade mark...just the 'Giant' I believe....actually not sure.

 

[Creature]

I am going to the Intercontinental Hotel in my Thrifty Rental Car from the airport after arriving on an American Airlines flight, so pick me up some Maine Lobster from the Giant Supermarket.

Okay, now I highlighted five terms in that sentence. One of them is not a trademark. Which one, and why is it not a trademark?

Seems crazy but is it American Airlines because it's plural and therefore possibly referring to all of the airlines in America?

 

[Chuckles2]

Maine Lobster is served everywhere, and I can't imagine they're all indirectly paying a single entity for the privilege of doing so. So that's my guess.

You do, that cybersquatting fiend stole a domain name and you want, how dare he register a domain in bad faith and attempt to profit from it. You demand to have it back for a reg fee because that is the only fair thing.

Yep, that sounds like me. I also eat babies.

Bad faith registrations do exist, and I believe this is such a case. Making my position useful may be a different matter. I'll do what I gotta.

 

[DNQuest.com]

You asked what your position was, I think I gave an accurate description, but I had a lil fun with it, sorry to bring levity into the thread. That is why I put the lil laughy guy at the end.

Yes bad faith registrations happens 2,068 times a minute (just my estimate and no facts to support it), but the point being made is the alleged TM holder must enforce their rights which costs money. It sucks, but like I said, you are on the other side of the fence in wanting a domain from an alleged squatter. Just remember this lesson when someone wants a typo domain.

PS- didn't think you ate babies, I do not feel that domain and baby eating are interlink psychologically and therefore I had no thoughts on the matter nor would I have concidered you to be a baby eater,. Any admission was of your own free will and does not affect my stance on this thread or domaining as a whole.

 

[Creature]

DNQuest, I don't reckon its Maine Lobster because judging from an earlier post, perhaps its been around long enough to be distinctive. Just a guess.

 

[DNQuest.com]

But they all have

I go by it is an item you eat, lobster and a locatioin where it comes form, Maine. Just like a company named "windows" that sells windows, they could not have a TM on "windows" for selling windows since windows is descriptive...

Awaiting the John insite

 

[Creature]

Actually my guess at AA is ridiculous. Must be the lobsters or it's some kind of trick question!

 

[VisualDigits]

I agree it must be Maine Lobster because it existed before TMs were invented and it's a natural product (not man made).

 

[izoot]

Ah, yes that's it.... I'm not serious about the business. Sheesh! I'd like a second opinion. Maybe a less insulting one.

Don't be so sensitive .. its more or less a figure of speech ... aside from that telling you that you would have to pay market price is unreasonable? I missed it if so. Thats is what I would say the case will
be in the end. So far what you've described can be considered a
generic name for the business.

There is no question that this registrant targeted the business' reputation for personal gain.

You know this how? And if he did since there is no trademark and it
does sound like a generic term "chicago food store" Chicago hair salon"
it could be argued that they didn't do as you said. Point being you
will need to prove it if you plan on arguing your use superceed's theirs as John B mentioned there are cases like "kentucky fried chicken" for example that a case can be made for ... are you ready to make that case for this domain?

Hey, I would have reg'd it long ago. The current owners simply aren't computer savvy, and they had no idea what to do.

Thats all good an fine but that you are more computer saavy than the current owners doesn't build an case for your preferred usage.

I believe eleven years of using the name very publicly, plus a filed fictitious business name should carry legal weight. If I'm wrong, okay I would pay more... but I don't believe I should, and I still hope I don't have to.

It should and maybe it would if you wanted to make a case of it ... but the possibility of you losing exists and if you lose and want the name you are going to either end up not getting it at all or paying through the nose for it.

Besides "Market value" would be almost zero if the business did not exist. I'd be happy to pay full market value for any portion of that market that isn't based on the business' own reputation.

You can rationalize it any way you desire but keep in mind that as a
domainer you likely have others that are thinking along the same lines as you are now. Are you going to just hand over or undersell any of
your names give the same circumstance? No offense but I doubt you would. The tone of your post says you would fight it to the end if you were on the other side. Tho I could be wrong.

The market value will rest on what similar names have gone for IF the owner knows the market. They can go to a site like http://dnsaleprice.com/ or http://namebio.com/# and search comparative sales or they can set a price in their head and it will be
the market price.

Perhaps it's convenient that the registrant happens to live in the same county.

Totally irrelevant .. you can assume all day that the owner regged it
it in bad faith ... until you can prove it and win the case it makes no difference where they live.

Anyone else help?


Don't take the post the wrong way ... but the simplest and most realistic
way that you will obtain the domain is making a legitimate offer on it. Or you can try bullying it from the owner and risk not getting it ever.

my 2¢

Thank you for solid advice. And I agree.

Please note that I said above that I regret suggesting a small offer... But as I explained, I was afraid a larger offer exceeding his own costs might be seen as acknowledgement of his right to register it. Since I believe it was reg'd in bad faith, I am concerned about creating any implication to the contrary via a larger offer.

He did have a right to register it ... and you wouldn't likely of even
criticizing them if you didn't have a personal interest in the domain. I
would be happy to make a bet that in your own portfolio that there are
numerous domains someone can apply the same logic you are too this
one and you would be the first to disagree with them that you didn't have a right to register them. You're letting your personal interest cloud your vision here.

Never offer a price in your initial coorespondence. try to get them to give a price expectation and work from there.

Good way to avoid getting any serious reply and look like a 1000 other
spammers trying to lowball a domain.

 

[jberryhill]

AMERICAN AIRLINES

Goods and Services: AIR TRANSPORT OF PASSENGERS AND FREIGHT. FIRST USE: 19340400.

Registration Number 0514294


GIANT

Goods and Services: RETAIL SUPERMARKET SERVICES. FIRST USE: 19360206. FIRST USE IN COMMERCE: 19360206

Registration Number 1406293


THRIFTY

Goods and Services: AUTOMOBILE RENTAL. FIRST USE: 19580303. FIRST USE IN COMMERCE: 19620301

Registration Number 0816350

INTERCONTINENTAL

Goods and Services: HOTEL SERVICES AND CONSULTING SERVICES TO OTHERS IN THE DEVELOPMENT AND PLANNING OF HOTELS. FIRST USE: 19480000. FIRST USE IN COMMERCE: 19480000

Registration Number 0890271


MAINE LOBSTER DIRECT

Goods and Services: fish, shellfish, and parts thereof. FIRST USE: 19960601. FIRST USE IN COMMERCE: 19960601

Registration Number 2877410

Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "MAINE LOBSTER" APART FROM THE MARK AS SHOWN


CERTIFIED MAINE LOBSTER

Goods and Services: Lobster or lobster products originating in the coastal waters of the State of Maine, namely live lobsters, whole lobsters or lobster parts, and lobster tails. FIRST USE: 20060801. FIRST USE IN COMMERCE: 20060801

Registration Number 3226204

Owner (REGISTRANT) Maine Lobster Promotion Council

Register SUPPLEMENTAL


If I have time later tonight, I will explain the differences between a Maine Lobster, a Kentucky Fried Chicken, and an Idaho Potato.

But, fortunately... MJ has dinner on...

 

[Onward]

Good way to avoid getting any serious reply and look like a 1000 other
spammers trying to lowball a domain.

Nope (don't think we are talking about sex.com here) I have made a 100 buys this way...at real good prices.

 

[fatter]

I understand a company can file a udrp if they feel they have been doing business for years and have built a brand on the name and actually have a good chance of winning if there arent any reasonable uses otherwise. But does the new buyer/company inherit the same rights when buying the company, and it trading hands if no TM was filed which would be part of the sale?

 

[jberryhill]

But does the new buyer/company inherit the same rights when buying the company, and it trading hands if no TM was filed which would be part of the sale?

Yes. Normally the goodwill is included in the purchase.

 

[TLDN]

It's currently parked, and probably making good revenue referring visitors to local competitors (since after all, its very name refers to the location and business type.)

There is no other party on the planet who would have interest in the domain.

But the nature of the business is such that only one or two such entities would exist in a given city.

If I acquire the business, it's worth a lot to me, but not to anyone else.... A reference to a "market price" seems incorrect, since I would be the only potential buyer on the planet.

Is it me or does this see all seem very contradictory?

Ahem... see (iv) below.

Uniform Domain Name Dispute Policy, as approved by ICANN:

b. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

the following circumstances, in particular but without limitation, if found by the Panel to be present- Does this not imply that more than one of the points needs to be found true?

(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration - Has the domain owner approached the business?

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor - It does not sound like a competitor owns it in an attempt to disrupt your potential business.

I would pay probably 6 years revenue as he has it parked. He's not making big bucks on parking... he's hoping this business will buy it.

Purely speculative on both accounts. Additionally, a domain does not have to make "big bucks" to be worth keeping in an asset portfolio. As long as a name is generating more than reg fee, it can be worth keeping.

How about an APPLE with that Maine Lobster?:smilewinkgrin:

 

[Tia Wood]

FAR more than it's worth to anyone else (which is zero.)

You don't know that.

 

[Chuckles2]

You don't know that.

True, but I'm very confident.

As for my apparent "contradictions"... I can see that perspective given what I am able to disclose. They have customers in outlying cities, and similar businesses from other cities compete in the same city. In other words, the nature of the business is to "work regions". To compete is to "wrangle for turf". Maybe a good comparison might be cab companies, although that's not the real business.

Although it's probably not evident from my original post, I'm wise enough to approach the registrant tactfully, respectfully, and honestly at the same time. I believe his true phone number is in the whois data, so I'm inclined to use that rather than email.

 

[bluesaga]

Why not just offer a few hundred bucks? Its going to cost you that to find a lawyer, and then your going to run the risk of losing anyway. I'm sure they'll snap at a few hundred!

 

[Chuckles2]

I'll restate that since I probably wasn't clear.

My initial concern, which I now realize probably wasn't valid, is that by offering more than his costs, such an offer might later be seen to invalidate (and contradict) any future claim I might make that the name was registered in bad faith, because it essentially acknowledges validity of his position to negotiate. But I say that only goes so far.

Clearly my preferences are, in order:
1) Pay a few hundred. (No problem.)
2) Legal action (It doesn't necessarily take a lawyer to be effective.)
3) Legal action failing, I would indeed pay even more... quite a bit in fact.

The problem is, I believe he would figure out quickly that I would be willing to pay a bundle more than a it would cost to take legal action. The relative size of the business and its existing reputation based on the name are fairly obvious. Therefore, I didn't want to disempower myself from the ability to take effective legal action, even though I want to avoid it.

If I lose my ability to effectively execute step 2, I fall through to step 3, wherein he would be in a pretty strong position to gouge me on price... and probably knows it or could figure it out. I would hope it ends before step 2 makes any serious headway.

A bit of money and a good profit for him is no problem. And I'm certainly not about "principles" on this. I just don't want to be price-gouged.

 

[socalboy]

Editing my former post:

Had a chance to read Berryhill's posts in more detail. He pretty much answered this, and free of charge! The only thing I would add is that California law favors small business and offers protections, tax incentives, etc. to startups. So you probably have a good shot at getting the name.

But at what cost? I'd first try the carrot in the xxx range. If that doesn't work, couple it with a small stick in the form of a letter from an attorney setting forth the legal bases of your claim and how you would prevail at trial. This assumes you own the business, or have the cooperation of the current owner. You can also write into the sale contract a condition that you gain title to the domain.

I think the current owner will probably decide it's not worth fighting for it.