Affiliate Sales on domain company wanted for themselves

[Crown]

I will use completely fictitious names and companies as a very close example.

Example:

A company in the US registered the word Blingy.com in 1999. Another company in Europe registered the word Blingy.net in 2000 and has operated a business for the last 8 years on that site. They have both a brick and mortar store as well as a larger offering of products on Blingy.net

I purchase Blingy.com last year and notice Blingy.net has an affiliate program. I enroll in their program, become accepted, and just post a big "Blingy.net Enter Here" sign on the top along with a small description on bottom that Blingy.com is operating as an affiliate to Blingy.net. There is no other content... its bare.

The site inevitably makes a lot of sales and after 4 months all payments in the account are listed as "pending". I have made multiple attempts by both email and phone to get a response but the company has not said anything nor have they ever complained about the situation after 4 months of taking in my traffic.

I then finally was able to get owner on the phone who says he talked to his CFO and thinks its better to just buy the name than give all the commissions for people who are looking for them anyway. I write a reasonable request that totaled 36 months of commissions. A typical transaction for people selling revenue names in a forum let a lone I am selling him the .com of his company name.

It's been a week with no response. I also have no payments. Even though he has never complained that I was in the affiliate program his actions after so many months make it seem he does not want to pay.

My options include:
A) Taking off the affiliate program at the end of the month and stick a completely different website with no relation to this company on it. (although it does relate to the theme of the word)
B) Continue to leave my name in the affiliate program racking up a lot of money in commissions. He might be skimming some sales on his end but they still come in daily. I can leave it there until he makes an official complaint or we come to some agreement. I am the type of person to actually take the time and things through legally so would expect to eventually get all money racked up.

Legally:
A) If he went for the name on WIPO, could he actually get it? Name was registered before he made his site, site was submitted clearly in affiliate program and was approved, he knew who I was on the phone the second I said I had no payment so was aware they were not paying but never once gave me a notice, and never once responded to any of my calls and emails until the last one where they requested to purchase the name. If I take site off affiliate there will definitely not be a confusingly similar site put up.


I'm looking for something I might have not thought of. Maybe I'm being too optimistic. Thanks for any thoughts

[domaingenius]

You say "It's been a week with no response". Nowadays with the
"recession" that amount of time is not unusual. I would send him
a polite reminder asking if he is interested to complete the
purchase.

DG

Originally Posted by Crown

I will use completely fictitious names and companies as a very close example.

Example:

A company in the US registered the word Blingy.com in 1999. Another company in Europe registered the word Blingy.net in 2000 and has operated a business for the last 8 years on that site. They have both a brick and mortar store as well as a larger offering of products on Blingy.net

I purchase Blingy.com last year and notice Blingy.net has an affiliate program. I enroll in their program, become accepted, and just post a big "Blingy.net Enter Here" sign on the top along with a small description on bottom that Blingy.com is operating as an affiliate to Blingy.net. There is no other content... its bare.

The site inevitably makes a lot of sales and after 4 months all payments in the account are listed as "pending". I have made multiple attempts by both email and phone to get a response but the company has not said anything nor have they ever complained about the situation after 4 months of taking in my traffic.

I then finally was able to get owner on the phone who says he talked to his CFO and thinks its better to just buy the name than give all the commissions for people who are looking for them anyway. I write a reasonable request that totaled 36 months of commissions. A typical transaction for people selling revenue names in a forum let a lone I am selling him the .com of his company name.

It's been a week with no response. I also have no payments. Even though he has never complained that I was in the affiliate program his actions after so many months make it seem he does not want to pay.

My options include:
A) Taking off the affiliate program at the end of the month and stick a completely different website with no relation to this company on it. (although it does relate to the theme of the word)
B) Continue to leave my name in the affiliate program racking up a lot of money in commissions. He might be skimming some sales on his end but they still come in daily. I can leave it there until he makes an official complaint or we come to some agreement. I am the type of person to actually take the time and things through legally so would expect to eventually get all money racked up.

Legally:
A) If he went for the name on WIPO, could he actually get it? Name was registered before he made his site, site was submitted clearly in affiliate program and was approved, he knew who I was on the phone the second I said I had no payment so was aware they were not paying but never once gave me a notice, and never once responded to any of my calls and emails until the last one where they requested to purchase the name. If I take site off affiliate there will definitely not be a confusingly similar site put up.


I'm looking for something I might have not thought of. Maybe I'm being too optimistic. Thanks for any thoughts

[Crown]

Originally Posted by domaingenius

You say "It's been a week with no response". Nowadays with the
"recession" that amount of time is not unusual. I would send him
a polite reminder asking if he is interested to complete the
purchase.

DG

Thanks for those words. I've been holding the 4 months til now thought process in my head. I should be more patient after this first contact. Thanks!

[TheLegendaryJP]

You offered it at 36 months why ? Because you know darn well you are pushing your luck with this one. Even at 36 it's bold.

May I add the fact your " similar " .com converts so well on their business name is a strong indication of confusingly similar and bad faith imo. If I were you I would take something closer to 16-18 months or less and count it lucky they didnt offer a C&D instead.

[south]

Originally Posted by TheLegendaryJP

You offered it at 36 months why ? Because you know darn well you are pushing your luck with this one. Even at 36 it's bold.

May I add the fact your " similar " .com converts so well on their business name is a strong indication of confusingly similar and bad faith imo. If I were you I would take something closer to 16-18 months or less and count it lucky they didnt offer a C&D instead.

I couldn't agree more. I doubt it matters that you submitted the name when you applied to the affiliate program if they've spent the last week reasearching wipo law. You should check the language of the affiliate agreement you signed / applied for also. They usually have the "confusingly similar" stuff in there.

[Crown]

Originally Posted by TheLegendaryJP

You offered it at 36 months why ? Because you know darn well you are pushing your luck with this one. Even at 36 it's bold.

May I add the fact your " similar " .com converts so well on their business name is a strong indication of confusingly similar and bad faith imo. If I were you I would take something closer to 16-18 months or less and count it lucky they didnt offer a C&D instead.

Thank you to both of you above

My optimism may have taken me off guard on this . Back of my head Im thinking his 4 months of taking in the traffic, even after I emailed him on the name, then listing each payment as pending without complaint, was acting as an acceptance to the agreement despite what TOS may have said (which is in another language that Im getting translated today). I needed your realistic non biased opinions to set me straight on what both a fair price and the reality of the right to usage really was.Thanks again (and special thanks to PM'ed response I received and the existence of these priceless forums)

[jasdon11]

Have they broken their own TOS by not paying you for so long? Could it be that they have just been wanting to track performance of the .com before mentioning a purchase, or hoping you would approach them first?

Pesimistically, you could end up losing the name, but there was a case recently that may help you if it gets nasty - http://www.dnforum.com/f557/trademar...ad-335970.html

Optimistically, they might come back and buy it at 36 months - (probably been skimming if they do ).

Good luck!

[cursal]

Now that they have offered to pay for the name and have not made any previous request to the method of sales and traffic and no where did they mention the domain until they wanted to buy it, how can they fire off a C&D? They have been ok with the agreement until now.

Doesn't making an offer to buy the name move this away from bad faith?

[Crown]

Originally Posted by jasdon11

Pesimistically, you could end up losing the name, but there was a case recently that may help you if it gets nasty - http://www.dnforum.com/f557/trademar...ad-335970.html

Thanks for your thoughts and the interesting case!

Originally Posted by cursal

Now that they have offered to pay for the name and have not made any previous request to the method of sales and traffic and no where did they mention the domain until they wanted to buy it, how can they fire off a C&D? They have been ok with the agreement until now.

Doesn't making an offer to buy the name move this away from bad faith?

I'd love to know this as well. At what point (if any) does their continued silent actions going along with the agreement act as acceptance to the agreement?


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Situation Update: They offered 20 months of revenue (we never negotiated through monthly revenue numbers but it ended up equaling 20 months). It's also all calculated in Euros so I'm going to take the deal and run.... not risking this matter getting any more interesting/complicated/regretful.

Thank you very much everyone for your priceless perspective and input.

[south]

Excellent! Sounds like a fair deal all around.

[Fatbat]

Originally Posted by cursal

Doesn't making an offer to buy the name move this away from bad faith?

I'm pretty certain there have been cases where a complainant agreed to buy a domain and even set a price, only to turn around and wipo it and win.