boilerplate waiver

[DaddyHalbucks]

It's a difficult dance when a prospective buyer inquires and asks for the price of a domain. It can put the domain owner in legal peril.

Even if the domain is generic, quoting a price opens the seller to accusations of "bad faith;" panelists and courts do not always appreciate the rights of small entities to own and sell generic domains. Nor do jurists or arbitrators always conclude that the seller was merely "answering" an offer and not "making" an offer.

So, how about creating a boilerplate waiver which waives trademark rights, arbitration actions, and any and all legal claims and insulates the domain owner? The entity making the inquiry needs to sign it FIRST before any discussions can take place.

The waiver should allow for the fact that prospective buyer organizations often use straw persons to inquire: their hosts, their web designers, etc.. The waiver should also allows for the fact that domain owners often operate under different DBAs.

As a public service for DNFers, would any of our legal eagles here care to fashion and post such a boilerplate waiver?

[wmlagna]

This is a useful idea. But in the absence of such a waiver, one option might be to not state an asking price, but to request an offer, and either accept it as being reasonable, or to reject it for any of a number of reasons. It seems a standard business practice - Make offer.

[jberryhill]

DOMAIN INQUIRY AGREEMENT

Whereas ______ (identified hereafter as 'cybersquatter') has registered the domain name _____, and

Whereas _______ (identified hereafter as 'Sucker') wants to know how badly he is going to be reamed,

Now Therefore, in consideration of the mutual covenants herein, cybersquatter and sucker agree as follows:

1. Cybersquatter shall let Sucker know how badly he is going to be reamed.

2. Sucker shall not tell anyone how badly he is going to be reamed, and if he does, then he agrees to be reamed twice as badly - especially if he tells a UDRP panel.

[Banned: DrWho]

Originally posted by jberryhill
DOMAIN INQUIRY AGREEMENT

Whereas ______ (identified hereafter as 'cybersquatter') has registered the domain name _____, and

Whereas _______ (identified hereafter as 'Sucker') wants to know how badly he is going to be reamed,

Now Therefore, in consideration of the mutual covenants herein, cybersquatter and sucker agree as follows:

1. Cybersquatter shall let Sucker know how badly he is going to be reamed.

2. Sucker shall not tell anyone how badly he is going to be reamed, and if he does, then he agrees to be reamed twice as badly - especially if he tells a UDRP panel.

CYBERSucker is more appropriate.


Agreement amended...


DOMAIN INQUIRY AGREEMENT

Whereas ______ (identified hereafter as 'cybersquatter') has registered the domain name _____, and

Whereas _______ (identified hereafter as 'CYBERSucker') wants to know how badly he is going to be reamed,

Now Therefore, in consideration of the mutual covenants herein, cybersquatter and CYBERsucker agree as follows:

1. Cybersquatter shall let CYBERSucker know how badly he is going to be reamed.

2. CYBERSucker shall not tell anyone how badly he is going to be reamed, and if he does, then he agrees to be reamed twice as badly - especially if he tells a UDRP panel.

[DaddyHalbucks]

wmlagna

Offers lead to counter-offers which are indistinguishable from each other under the many rules. Counter-offers get cited against registrants as bad faith "offers to sell."


jberryhill

This is a SERIOUS thread. This is an effort for domain owners to be pro-active and to use good planning.

[HOWARD]

John

I LOVE it! I will use this form for all my client's transfers!

What many domain developers still don't understand is that it is not important how much he wants for the domain. What IS important is how much a willing buyer is willing to pay for it.

[Sharpy]

jberryhill, is it me or do you have a general distain for most of the non lawyers who post in the legal section? I know people will say, " how can you say that Sharpy?...look at all of the great FREE advice he gives here!

I acknowledge that, in fact I think it's uncharacteristic of the law profession, being that your time and knowledge is precious.

But I can't help noticing that in quite a few of your replys, there is an underlying sarcasim, sometimes venomous, towards the threads author or other member's replies.

Is it that you dislike laypeople offering advice in the "Legal section"?

I know you really hate when a thread author asks for help and then, in the same thread/post trys to solve his dilema with his own law degree he earned at Domain Law School.

Please don't take this as a flame in any way, it's just something I've noticed and was wondering if I'm reading it right.

[GeorgeK]

Sharpy: I don't think John is at all malevolent --- I read it as just being playful and humourous.

[HOWARD]

John Berryhill has one of the sharpest legal minds I know. His humor is making a point, which apparently you don't get.

[jberryhill]

"jberryhill, is it me or do you have a general distain for most of the non lawyers who post in the legal section? "

When I started posting here, someone took care to point out that I can be fairly sarcastic. It often doesn't come across well in print. So sue me.

But if I come across as mean-spirited in my comments here, then wait until you get sued by somebody for relying on the casual comments of folks on a public bulletin board. Believe me, the folks on the other side of that suit are going to be infinitely more mean-spirited than you can imagine. And the "fight 'em tooth and nail" crowd that comes out of the woodwork here is not going to help you pay your legal bills or the damage award after you are done shooting yourself in the foot.

So, whether someone considers it to be "serious thread" or not, this is something I do in spare moments through the day, and I reserve the right to take it as seriously as I want.

My point in posting the "sample agreement" above is that you are not going to have a one-size-fits-all solution here. I fully appreciate the problem of having a perfectly innocuous "dictionary word" type domain name, then someone comes along to ask for how much you would sell, and then later whips out a trademark registration for unrelated goods and starts calling you a cybersquatter. I see it all of the time.

There are a couple of ways to handle unsolicited inquiries, and I do not have time to write a book on the topic. If the inquirer is an attorney pretending to be something other than an attorney, as indicated by, say, the IP address information in the yahoo or hotmail email headers used by the attorney to hide his/her identity, then you have a variety of courses of action to gain the upper hand in that situation.

But, getting back to my point, if someone writes to you asking about a domain name, and you whip out an agreement that smells like the one I posted, then it is not going to make a dime's worth of difference in a UDRP dispute, for example. If I were the TM owner, I would simply argue "This guy registered our trademark, and when we wrote to him he handed us an agreement attempting to immunize himself from liability - this shows that not only is he trying to sell the domain name to us, because he *is* willing to negotiate a price; but he knows that he would be liable as a cybersquatter for selling it."

It is quite often appropriate when two parties are considering entering into a negotiation to establish an agreement laying out how the negotiation is to be conducted. I wouldn't recommend a "boilerplate" approach, and the popular notion that contracts amount to a pile of "magic words", the mere incantation of which will protect the bearer from various evils, is simply voodoo.

So, my five minutes is up, and this post is not as funny IMHO as the original one which was intended to make the exact same point.

Yes, in some circumstances an appropriate agreement of some kind might make sense. No, in other circumstances, it might be counterproductive. Am I going to say, "Oh, yes, you should always do X" and then have someone later blame me for doing X in an inappropriate situation? Would you?

"Is it that you dislike laypeople offering advice in the 'Legal section'?"

Everyone is entitled to their opinion. If I disliked the forum, I wouldn't post here. I am sometimes concerned by what strike me as well-intentioned, but nevertheless dangerous, suggestions that are made here - but I call 'em as I see 'em. You won't get unanimous opinions out of attorneys either. But, hey, you get what you pay for.