REAL C&D process... in depth. (actual email conversations included.)

[petrosc]

why dont you all stop posting here and let this thread die, the discussion has nothing to do with the initial post anymore

 

[Focus]

you just posted though..lol

 

[Deleted member 70408]

Timeout. So the original poster registered a TM name and then offered it back to them using the begging, whining, pleading technique...etc and ended up selling to them for $1,000? Isn't this the technique used from 1994-1998 (pre-ACPA)? How is this original? This is the type of crap that gave domain investors a bad name and the reason Congress modified the Lanham Act to include the Anti-Cybersquatting Consumer Protection Act.

As I've said before, I don't care how someone justifies making money, but please don't call this ingenius or anything other than completely stupid. BFD - the guy made a grand. IMO, if this would have been a litigious company, Ashaw could have been in much more hot water than it was worth to make $1,000. I'm no math whiz, but how could he justify taking a HUGE risk to make just $1,000? They could have sued him for up to $100,000, the maximum amount allowed in the ACPA, and it would have cost him somewhere around $10,000 just to defend his ass in court - not even counting any judgement. WTF was he thinking? I think he totally lucked out, because chances are if he does it again, he won't be so lucky. It's no wonder he claims to be at the "bottom of the food chain" (from another whiny thread).

Hope he signed an agreement preventing the company for suing him in the future.

BTW, the reason I am being so critical is because of the number of newbies who read this forum. All should know the risks of doing what Ashaw did.

 

[Bill Roy]

EJS, well done, back on tack although a little of the wording was unwarrented.

I think from the original post Ashaw actually approached the company explaining that he had a domain that he would like to develop to sell their products as an affiliate! It was when they demanded the name be transferred that he did not argue but simply pointed out that yes he would transfer it but would be out of pocket. Now please tell me how that is illegal, Ashaw had not put a site up, had not demanded money from the TM holders, he had simply registered the site and then approached the company for permission to act as an affiliate!

Hope this clarifies a few misunderstandings.

 

[Theo]

Bill, if I registered IBMserverDeals.com and called IBM to be an affiliate, knowing that "IBM" is a registered mark would that be ok according to this logic? And especially since Ashaw admitted that his intention all along was to try to sell the domain? "Out of pocket"? That's $9. Telling fibs that he had a $900 offer for a domain he just registered that happened to be a tm?

Come on.

 

[Deleted member 70408]

EJS, well done, back on tack although a little of the wording was unwarrented.

I think from the original post Ashaw actually approached the company explaining that he had a domain that he would like to develop to sell their products as an affiliate! It was when they demanded the name be transferred that he did not argue but simply pointed out that yes he would transfer it but would be out of pocket. Now please tell me how that is illegal, Ashaw had not put a site up, had not demanded money from the TM holders, he had simply registered the site and then approached the company for permission to act as an affiliate!

Hope this clarifies a few misunderstandings.

Since the OP edited his post, it is hard to see what was said, but I pieced things together from other responses.

Ashaw's intent was to profit from their TM. Had he authentically wanted to be an affiliate, he would have asked first and registered the name after, knowing that he would not be able to own that name if they said "no." When he registered the name, he didn't have permission. I believe he claimed to have a $900 offer elsewhere, which would indicate that he was profiting off the company's TM.

Now if he really wants to be an affiliate, why doesn't he jus

 

[Bill Roy]

Not as such, a TM is issued for either a universal brand name (such as Hoover, Pepsi, etc.) or as a limited TM according to a specific area (such as 'printed materials'), therefore you can have a TM domain name and develop it as long as it does not infringe the TM. Therefore Ashaw could legitimately argue that he registered the domain name to save it being registered by someone else and then developed the plan to act as an affiliate for the TM holder rather than advertising say 'lawn mowers' on the site (hope that the TM has nothing to do with lawn mowers now ).

So you see although someone owns a TM it is 'generally' not universal, therefore you could have a site that is the same as a TM and as long as that site does not harm the TM holder or product it is perfectly legitimate.

(I should state here that this is what is meant to happen and at the moment I am aware that the laws concerning TM's are interpreted differently depending by whom and where the interpretation is being made by.)

 

[DNQuest.com]

Timeout. So the original poster registered a TM name and then offered it back to them using the begging, whining, pleading technique...etc and ended up selling to them for $1,000? Isn't this the technique used from 1994-1998 (pre-ACPA)? How is this original? This is the type of crap that gave domain investors a bad name and the reason Congress modified the Lanham Act to include the Anti-Cybersquatting Consumer Protection Act.

As I've said before, I don't care how someone justifies making money, but please don't call this ingenius or anything other than completely stupid. BFD - the guy made a grand. IMO, if this would have been a litigious company, Ashaw could have been in much more hot water than it was worth to make $1,000. I'm no math whiz, but how could he justify taking a HUGE risk to make just $1,000? They could have sued him for up to $100,000, the maximum amount allowed in the ACPA, and it would have cost him somewhere around $10,000 just to defend his ass in court - not even counting any judgement. WTF was he thinking? I think he totally lucked out, because chances are if he does it again, he won't be so lucky. It's no wonder he claims to be at the "bottom of the food chain" (from another whiny thread).

Hope he signed an agreement preventing the company for suing him in the future.

BTW, the reason I am being so critical is because of the number of newbies who read this forum. All should know the risks of doing what Ashaw did.

EJS = Great Post, even the wording... I agree 100%

I have already pointed out the contradicting statements on this this thread.

BILLBO - It is called extortion, seemed to be done nicely, but extortion none-the-less. It is illegal to use a TM domain in hopes of profitting from it. Now, if he would have gone to the company BEFORE registering the domain and laid out his plans, that is a different story. But the bottomline is he did violate the ACPA. And by his own admission, he will lie and cheat to get his way (yes, some people still believe in morals and some may call it negotiating, you choose you own path).

I have no beef with anyone here, I just call them as I see them.

Therefore Ashaw could legitimately argue that he registered the domain name to save it being registered by someone else and then developed the plan to act as an affiliate for the TM holder rather than advertising say 'lawn mowers' on the site (hope that the TM has nothing to do with lawn mowers now ).

So basically, lie some more?

As stated previously, this is why domainers have a bad rap and there were laws passed to curb this type of behavior. Yes, intent and what can be argued are 2 different things, but we know what is going on.

 

[Bill Roy]

This is where TM law is an ass, IMHO. So under the interpretation of the law as percieved by both of you, DNQ and EJS, any TM name should be universal. Therefore any TM name or part thereof could not be used in any domain apart from by the TM holder? This becomes very interesting as there are approx 100,000 English words (give or take 20,000), many of which it could be argued contain part of another word as part of its spine, therefore let us be generous and say 100,000 pure words exist, that would mean that only 100,000 possible TM's could exist! The number of TM's are far higher than this!

Also remember that it was not the TM that Ashaw registered but a variant of it if I remember correctly. Ashaw stood to loose nothing apart from his registration fee as I see it. Further more when the company claimed right to the domain Ashaw did not argue but agreed to transfer the domain. No extortion occured whether pleasent or otherwise.

I have a domain that is the name of a US State (and many others have the same US State with other extensions), now a large electronics company exists that has a TM on the State domain name as a brand, but does that mean we are all cybersqatters? Like hell it does.

I think perhaps the 'whole' picture is being narrowed down by some of the protagonists here so as to create a 'cybersquatting' case, one that would in my opinion definately not hold up in a court of law.

Addition....

Acro you use a brand that is a world brand and therefore has 'universal TM', no where did Ashaw say that his domain was associated with a 'universal TM'!

 

[Deleted member 70408]

This is where TM law is an ass, IMHO. So under the interpretation of the law as percieved by both of you, DNQ and EJS, any TM name should be universal. Therefore any TM name or part thereof could not be used in any domain apart from by the TM holder? This becomes very interesting as there are approx 100,000 English words (give or take 20,000), many of which it could be argued contain part of another word as part of its spine, therefore let us be generous and say 100,000 pure words exist, that would mean that only 100,000 possible TM's could exist! The number of TM's are far higher than this!

Stop trying to put words in my mouth. The OP clearly registered an unquestionable trademark of the company to which he sold said name. Had that not been the case, he logically wouldn't have been so quick to beg for them to buy it from him (and let them know he is a member of this forum and would be willing to let them know if he sees any of their trademarked names for sale on this forum).

I'm not going to sit here and debate you. I've said my piece and received several positive comments (public and via PM) about what I said being on point. I just want to educate people and let them know the pitfalls of doing what Ashaw did.

 

[Bill Roy]

EJS, I agree there are possible pitfalls, however, when a case is being made against a member it should be accurate, and in this case I feel that accuracy is lacking. For instance your wording 'he sold the name' is inaccurate, he transferred the domain without promise of reward except that the company had said it would pay 'his legitimate expences'! He also did not 'beg for them to buy the domain' but had pointed out in his email accepting that he should transfer the domain that he would be out of pocket! He did let them know he was the member of a forum (he did not say which) and he did offer to act as their agent, in this there is actually nothing wrong, what's more he allowed people on this forum to know he had made the offer therefore alerting people to be wary of placing domains that infring the company's TM for sale on this forum (TM domains are not allowed anyway according to my understanding of the rules of this forum).

I am glad you have your supporters, but I was brought up with the philosophy that even if nobody else is willing to stand against an injustice then I should be man enough to stand alone. Here the injustice is that the facts have been moulded by certain protagonists to fit their argument, rather than providing all the facts selective facts have been used.

Oh, and by the way EJS, I was only following the logic of your arguments.

 

[DNQuest.com]

Please, don't even try to insinuate that you know what I think.

I just go by what I read. You can throw all the what-ifs you want to out there, but that does not change the intent and the OP clearly spelled it out. I have no idea why you are being defensive.

 

[Bill Roy]

DNQ, I am not being defensive, quite the reverse I thought.

It is not I who is using 'what-ifs' but those that clearly accuse a member of something by inferring 'intent' and/or being selective in the evidence to slant the argument.

I in no way wish to insinuate that I know what you think, I simply use the arguments given and produce the logical outcome scenario of those arguments. I would say though that the protagonists against Ashaw have definately argued they 'knew' his thoughts with no basis on which to argue such except their own misinterpretations of the facts.

A quick note, I shall be off line for a while, dinner time here.

 

[DNQuest.com]

Originally Posted by Ashaw
Especially since half my portfolio is based on TMed names. Me acting as if I were against cybersquatting was so that they didnt think I buy names only to contact companies on a normal basis...


I assumed absolutely nothing, just went by what the OP said. Many posts have been editied down to nothing and I could have gotten more. Did you read that line above? Now tell me that I do not know what the OP thinks.

 

[Theo]

Bill, since you read the original post are you denying Ashaw posted that he registered the domain and intentionally offered affiliation etc. to the tm holders and that his last resort strategy was to beg for "out of pocket" expenses and to offer protection against tm violations - in the very forum he makes this post for a monetary exchange - all while lying about a $900 offer?

I see the following:

• Registration of a tm property with intent to sell to the tm holder
• Lying about a supposed offer while asking for inflated "out of pocket" expenses
• Offering protection a-la mob style: I will keep an eye on your virtual property for a fee
• Becoming pesterous until the other party willingly and gracefully gave blood money

And all this served here, on DNF, under the title of a "Real in-depth C&D" (which he never received) as a *model* method of dealing with tm domains?

 

[GAMEFINEST]

Great post EJS

 

[Biggie]

Don't see why you guys are still debating this, especially when the original post has been edited out.

I guess for the sake of continuing an argument.

Continue on....if you wish

 

[DNQuest.com]

been a slow day

 

[Theo]

Don't see why you guys are still debating this, especially when the original post has been edited out.

I guess for the sake of continuing an argument.

Continue on....if you wish

Don, you really need to start cleaning up the manure left behind by post #57 etc.

 

[Bill Roy]

Acro, I had to do a quick check post 57 wasn't one of mine! Thank goodness it wasn't.

Bigg, it is now for the most part a good natured debate, arguing semantic points more than anything, our own positions seem firmly set on both sides, but if nothing else the latest posts show how a debate should be conducted.

Right, again I will firstly state that I am against TM squatting. But the actual correspondance by the member was one of asking permission to run an affiliate site. Those that say the OP should have contacted the company first I would ask 'why?'

Now the company paid an amount to the OP, that amount was $1,000, the payment amount was decided upon by the TM holding company.

The use by the OP of saying he had turned down a $900 offer for the domain was a bargaining tool, just like when someone posts an asking price of $20k for a domain but is negotiated down to $3k. Nothing illegal here, we do not even know if the OP had been offered $900 or not!

Again, the OP actually did nothing wrong, he conducted legitimate business. When his first offer, that of running an affiliate site, was turned down he then agreed to transfer the domain without making any demand for payment but just pointing out he would be out of pocket. Nothing, and I repeat nothing illegal here.

The underlying problem here is the TM laws and their differing interpretation by people. I have tried to point this out in previous posts.

Anyway, enough time on this, we will not convince one another on this matter, but as Acro and I have already agreed on another thread, it is agreed to disagree.