An ethical/legal question for DNF Members

**JuniperPark** · 03-02-2009, 04:22 PM

A while back I hand reg'd a domain that is a very common generic term, but is also a product name by a very large, well known company. The product is of the same catergory as the common use of the domain.

In other words, it's not like the domain is "Apple" and the produce has to do with computers. It's more like "Apple" and it's a product to help you prepare apple dishes.

The .com version of the domain is a redirect to the company's main site.

I received a C & D from the big company's legal department for the domain. It seemed more trouble than it was worth, so I ignored the C&D but let the name drop in the next cycle.

Apparently it was then picked up by a DNF member, any put on sale here, where a small bidding war ensued. I didn't notice it until I saw a thread here with several posts for it.

So... what should I have done? Kept quiet and let the winning bidder be screwed? Posted in the sale thread and screw the seller and possibly get myself banned?

**Focus** · 03-02-2009, 04:29 PM

You should have contacted both of them privately & seperately via PM, that's what I would have done.

**draggar** · 03-02-2009, 04:31 PM

If you decided it wasn't worth the fight, then dropping it was the right thing to do. You need to pick your battles.

If the domain usage wasn't infringing on their TM (like your apple reference) including all ads (even AdSense) then you would have been safe, but the millisecond a computer related ad popped up (sticking with the Apple example) then they had a case against you.

If another DNF member picked it up and then sold it, any TM issue is not your issue. If you feel righteous then you do have the right to send the bidder a PM letting him know about the domain but chances are they already know about the risks with the domain.

**TheLegendaryJP** · 03-02-2009, 04:31 PM

That is a tuff one as the new owner ( seller ) was not aware of your issue and therefore is not trying to screw anyone, just making a dollar where they can. IMO you should at least PM the seller, notify them of the past issue and leave it to them at that point. The issue with coming right out and ruining their sale is you never know if the company would even persue it again. Obviously the risk is high but the buyer or a savy buyer would clearly understand the risks if it was clearly in use or infringing. jmo

**jberryhill** · 03-02-2009, 04:39 PM

Obviously the risk is high but the buyer or a savy buyer would clearly understand the risks if it was clearly in use or infringing.

The urge to intervene presumes that the TM claimant would have a similar objection to the domain name, independent of how the buyer intends to use the domain name.

The letter you received was an objection to your registration and use of the domain name.

**TheLegendaryJP** · 03-02-2009, 04:43 PM

Well put.

**JuniperPark** · 03-02-2009, 05:01 PM

I should clarify here that the product is well known in the US, probably not so well known outside the US. Therefore it may not be obvious to a lot of buyers here that there may be a TM problem. I personally (honestly) didn't think about the product when I bought it, just the common generic phrase.

jberryhill: My experience here suggests that 99% of the domains purchased here go into a parking service, so I presume they'll be getting notified as well.

Others: the auction was over when I saw it, but even if it wasn't this place is full of sniper bidders, so I would have to sit here online PMing each high bidder as they bid, not practical.

I also have to consider that 'doing the right thing' often angers DNFers. A while back I sold a domain here, and had trouble making the 'push' to the buyer's account. I returned the buyer's payment while I waited for the registrar to research what the problem was, so he wouln't be nervious that this was a scam (they had recently implemented new security with push delays).

That person -- a 'well known DNF member'... immediately filed a COMPLAINT against me here at DNF and begain bad-mouthing me in various forums!! To this day he has not apologized for his actions or even explained how returning his money while a problem was resolved could possibly be construed as me ripping him off somehow. I have to assume at this point that he has a mental defect, and there may be others like him here.

**TheLegendaryJP** · 03-02-2009, 05:09 PM

Originally Posted by JuniperPark

I also have to consider that 'doing the right thing'

See that is the issue, it is not 'doing the right thing' not because you would interfere with a sale ( remove the ethics for a moment ) but rather the right thing for you may not be the right thing for the buyer, reread John's reply.

**Focus** · 03-02-2009, 06:34 PM

Moral of the story here? Don't drop domains people want..keep it or just turn it over

**jberryhill** · 03-02-2009, 10:57 PM

I also have to consider that 'doing the right thing' often angers DNFers.

Yeah, well, look what happened to Jesus.

Separating out "legal" and "ethical" questions. Legally, you had no duty to do anything. Ethically, you are not engaging in a breach of ethics by inserting yourself into someone else's transaction. Morally, is another story - but then again, trademark issues are legal issues, not moral ones.

"by inserting"

should be: by NOT inserting.

The general principle is that wrong conduct by reason of failure to act is a higher standard than wrong conduct by reason of wrong action.

**Focus** · 03-03-2009, 03:01 AM

Or attaching a rubber strap-on penis to mardi gras beads & dropping it down on young college girls heads from a balcony for that matter...

**H2FC** · 03-03-2009, 07:08 AM

I say as fellow members of this forum we should all strive to help one another as best we can and that includes passing along information, good or bad, on a domain name. If the truth hurts one but helps another, so be it.

**rebirth** · 03-03-2009, 07:09 AM

Originally Posted by Focus

Or attaching a rubber strap-on penis to mardi gras beads & dropping it down on young college girls heads from a balcony for that matter...

Are you talking moral or legal issue here, focus?

**TheLegendaryJP** · 03-03-2009, 08:28 AM

Originally Posted by H2FC

If the truth hurts one but helps another, so be it.

Wouldn't that be a sum of zero?

**H2FC** · 03-03-2009, 11:03 AM

Originally Posted by TheLegendaryJP

Wouldn't that be a sum of zero?

I see it as a fair and level playing field....

**Acro** · 03-03-2009, 11:49 AM

So what was the domain?

**namenut** · 03-03-2009, 01:12 PM

Originally Posted by Focus

You should have contacted both of them privately & seperately via PM, that's what I would have done.

I would agree and include coppies to a couple of admin. as well.

If I were any of the mentioned parties "I" would want to be made
aware of the C&D. A "good samaritan" not just a person.

Maybe a "C&D list" thread is in order.

NN

**JuniperPark** · 03-03-2009, 01:26 PM

I'm not sure it's wise to publicly disclose the fact that you're getting C&Ds, for a whole lot of reasons. People will use this information against you, especially when they track how you defend yourself (or don't). That's why I'm not posting the domain in question here.

Also, some C&Ds are pure nonsense, so I'm not sure it would be right to give them the light of day. If posting of these becomes standard policy, I could see some domainers sending 'bogus' C&Ds to get the asking price lowered on a domain they planned to buy. It's all ripe for abuse.

**jberryhill** · 03-04-2009, 03:14 PM

It's all ripe for abuse.

Amen to that. I'm at the ICANN meeting in Mexico City and some of the "solutions" to "problems" I'm hearing are outright absurd.

ICANN is proposing to contract with a survey company to do a study of "whois accuracy".

One of the things the contractor proposes doing is to call randomly selected domain registrants using the WHOIS telephone number, to ask them about their WHOIS data.

Can you imagine what you would say to someone who called you out of the blue and started asking about your WHOIS information for a domain?

Can you imagine what would happen if someone else decided to piggyback onto the "official" survey?

**Dale Hubbard** · 03-04-2009, 03:35 PM

After a while the "legal" and "ethical" issues become a dichotomy. Take the ethical route. Just my 2c. If anyone called me about a domain and my whois, I'd go tell them to do 'the other thing'.