Should domain selling venues forbid the selling of trademark violations?

[Theo]

Vote please.

 

[ImageAuthors]

NO

Trademark disputes aren't simple. Suppose Apple Computers is afraid to compete for #1 in google with a forthcoming website called WebApple.com that will sell apples to us online. (I know, it's the best I can come up with off the top of my head!) If the registrars are ready to ban listings of trademark-risky domains, then all Apple has to do is bribe or bully the registrar into preventing a competing website from getting started. And in this case the trademark dispute would be phoney--just an excuse to keep #1 status and brand exclusivity.

In my opinion, the marketplaces should be exempt from blame if they encourage a neutral submissions policy. Anything else is anti-competitive and would help big businesses maintain a monopoly. Trademark disputes should be between 2 businesses trying to do business in the same place, in the same industry, under the same name. If I start a new company called "Apple Electronics" that makes tablet computers, then the person who paints the sign on my building is not at fault. Neither should the marketplace be.

I'm all in favor of the domain industry cleaning itself up. Like most domainers, I registered some domains that contain company names before I knew better. (Just got rid of one for $29 a couple weeks ago.) If I had built up a company, I'd be irked if some jerk like me thought he could feed off my identity in some other website. We should allow the courts to enforce some standard of fairness, and all of us should police ourselves for our own benefit.

 

[Theo]

I'm all in favor of the domain industry cleaning itself up. Like most domainers, I registered some domains that contain company names before I knew better. (Just got rid of one for $29 a couple weeks ago.) If I had built up a company, I'd be irked if some jerk like me thought he could feed off my identity in some other website. We should allow the courts to enforce some standard of fairness, and all of us should police ourselves for our own benefit.

The industry is not "self-cleaning". There are laws and regulations. See why Megaupload all of a sudden closed down? How would you feel if the feds raided TDNAM, Flippa, eBay etc. ?

 

[ImageAuthors]

Trademarks can be very ambiguous. Distributing copyrighted material without licensing is pretty clear-cut in comparison, I would say. Courts full of reasoned arguments and human judges should resolve trademark disputes when the domain owner is willing to defend himself--not jumpy registrars with clumsy algorithms.

Example: Power.com is for sale. Let's suppose somebody builds a powerful company behind that brand. How is the registrar going to decide which domains to exclude? Or will its sole criterion be that the offending domains contain the word "power"? PowerLifting.com? SolarPower.com? PowerToThePeople.com? MicroPowerCircuits.com? PowerOfGreyskull.com? Banned. Banned. Banned. Banned. Banned. Banned.

Our industry is self-cleaning. How many domainers deliberately and voluntarily avoid registering trademark violations because of the possible consequences?

 

[Theo]

Those venues that implement zero measures to curb obvious and blatant trademark violations (facebook, iphone, apple, adidas etc.) profit from these listings, either in the form of listing fees or by collection sales fees. The notion that the industry is self-cleaning and domainers abstain from buying those trademark violations is silly, particularly when these venues (TDNAM, Flippa) list the domains' performance, traffic - even a quick evaluation. On the other hand, Sedo and Afternic police their listings. Nothing wrong with that; they save themselves from the heartache of having to go back later and pay penalties for allowing the sale of those domains once the tm holders file suit.

 

[ImageAuthors]

Based on the survey results so far (i.e. 2), it seems domainers are evenly divided! Oh well, a conversation/debate is as good as an informal poll.

I can see the venue's interest in policing domains if they are profiting with parking revenue and might be named in a lawsuit. Parking tends to employ ads for either (1) the company whose trademark is being violated or (2) other companies in the same industry as the company whose trademark is being violated. Case (1) amounts to demanding "protection" money from the company in question--like the Mafia, except that usually the domain owner is a pipsqueak and the company has all the big guns. Case (2) is simply treacherous. So any lawsuit would have to name the the venue because the venue profited from these practices. So there's an argument for having parking companies bar domains with trademark violations from being parked.

But simply listing or selling the domain name is something rather different--even though the venue makes money with this as well. Here, the domain has not been used in any way for business purposes. It is simply a commodity like a painted sign that says "Apple". If the person who buys it sets up shop to sell Dell computers under the "Apple" sign, then he is infringing on a trademark. But the sign itself doesn't necessarily.

Yes, there are some blatant examples of trademark-violating domains for sale on GoDaddy. There are also illegally parked vehicles all over the world. Both the owners of the violating domains and the owners of the violating vehicles take risks. And neither can complain too loudly if the laws are enforced against them.

But trademark ambiguities are better resolved by a judge than an algorithm or a tired and underpaid employee. And prosecutions would best be reserved for people who try to build online businesses on the violating domains--strictly in terms of cost-effective deterrence.

How would you answer the concerns I voiced about over-policing by the venues or an unduly close (and possibly corrupt) relationship between corporations and these vendors? Plenty of domain sales can be banned using dubious trademark violations as a pretext.

 

[Dave Zan]

The keywords in that poll are "famous marks" since, ideally, they're arguably a tad easier to screen out. Personally, I'd make it unique and/or famous marks.

Or put another way: if a selling venue doesn't screen them out, someone else might do that for them. Or worse, to them.

 

[Mark Talbot]

The question becomes,... to fight trademarks, or fight violations.

The answer should be obvious.

Yet to vote, by timestamp of this vote.

edit-voted.

 

[Biggie]

here's the logic:

If, advertisers didn't/don't pay feed providers for tm names,

then there would be no market for them.

that is the basic philosophy which drives the registration/renewals and reselling of those types of names.


many names have already ben blocked from most ppc services, however advertisers still purchase links and pay for traffic coming for "tm" domains, because to a certain extent...it benefits them. the benefit is that they receive "targeted traffic" looking for their products or services, which is verified by the click thru rates on those type of domains.

they could confiscate the domains, but then there is cost to acquire, then cost to maintain.
is that cost more or less than the "benefits" they may receive by "ignoring" the dn owner?


sure, on the surface, it may not look pretty or legit, but folks on both sides are making money, which stimulates economy's outside and inside of domaining.

all that said, imo...i say No!

let the marketplace determine the fate of domains in general, as it has in the past, let it be so in the future.

 

[katherine]

I think the real question is:

Should domain selling venues act to keep their listings as clean as possible and as can be reasonably expected

or:

Should domain selling venues be allowed to infringe on third party rights until somebody or something takes cares of things for them


Some venues like Sedo already ban certain domains or keywords like olympics so it's not like nothing can be done or is being done.

In the current climate of Internet censorship, domain seizures, clampdown on piracy, Snowe bill, SOPA, ACTA, etc - it is surprising that the domain industry is still behaving like nothing bad can happen.
Be assured that when things go wrong nobody will shed a tear for the squatters that we are (in the public eye). Just like I won't shed a tear when Pool et al get hit with a massive lawsuit. Our industry is dirty and has zero credibility.
And you know what, when you play with dirt you also get spattered with it.

 

[JuniperPark]

The industry is not "self-cleaning". There are laws and regulations. See why Megaupload all of a sudden closed down? How would you feel if the feds raided TDNAM, Flippa, eBay etc. ?

Well said.

When an industry makes no effort to self-patrol, they just open to the door to government stepping in, and that's always a bad thing.

This week I "outted" someone here who is clearly selling a website filled with nothing but stolen materials. That guy puts DNF at risk. It's not much different from someone selling a used car for far over any obvious value, and mentioning that it happens to be full of stolen merchandise from a recent electronics store looting. It's just stupid, and will eventually get busted.

 

[Theo]

all that said, imo...i say No!

Okay...then why the long tirade if you summarized it with one word?

 

[seo law domains]

Because trademark law at least in US encompasses both the concepts of likelihood of confusion and fair use, I dont think its always clear what is a "trademark" domain.

For example, we can all agree that "Mac" is a registered trademark of Apple Computer for use in computers. Lenovo couldnt call its laptop a MacBook.

But are these well-known Mac blogs trademark violators: MacRumours.com, CultofMac.com? How about AppleInsider.com?

Its not that clearcut.

 

[katherine]

Of course there is a grey area.
Just talking about the blatant TM violations. Like the facebook typos that pool and siblings like to pimp.

 

[Theo]

The knife needs to fall onto the sticky fingers of the venues offering the domains. They play "dumb", e.g. Flippa says "oh, I don't know what you're talking about, unless Apple complains I am not pulling that auction down!"

Why would they, there's money on the table.

 

[Mark Talbot]

I feel that we already have considerable mechanisms to take care of TM violations in the court system, and the not-too-bright people that dabble in these TM 'investments'.

 

[ksinclair]

Its not up to Dnf to police such things. So they should be allowed to post.

If someone is dumb enough to post a TM 'related' domain, then so be it. DNF is indexed by google.
If you post about your domain, you are providing material for a trademark holders attorney's. Of course,
this could be worded a different way... you can post in such a way as to help protect yourself. How you post,
is similar to how you build the site - you can screw yourself and violate a TM or you can protect yourself.
The 'WebApple.com' is a good example.

IMO, the main thing is this: since the buyer should do his own due diligence, in any purchase, to me
the main obligation of the seller is to disclose if he has ever received any letters, emails, or calls About possible TM violations.
If he does not disclose this, then he is not selling in good faith. I dont think its up to a seller to say,
"By the way, this domain might have Trademark violations from the words in the domain".

Kevin

 

[Theo]

Kevin - tm domains are already explicitly 'verboten' on DNF.

 

[ksinclair]

Kevin - tm domains are already explicitly 'verboten' on DNF.

That is interesting. So if WebApple.com were listed, is that forbidden? I just looked, the lander
is a ppc about computers. Sounds like a violation to me. But if the lander was about apples,
sold via the web, then its not a violation.

So how do you tell a NAME is a violation? I dont get that.

Kevin

 

[Theo]

You'd have to ask Adam, I'm not enforcing the rules just playing by them.