Good faith?

**dvdrip** · 10-20-2002, 06:24 AM

Hi all,
someone owns a domain name (e.g. Fireworks.org).
Fireworks is a generic word but Macromedia has a program called Fireworks.
If he has no intent of selling it (to Macromedia), no intent of using it as a "sucks" webpage and no intent of using it to present a competitor.
Can he use it as an honest website providing information about fireworks? e.g. having rewiews about this software,downloadable addins, maybe selling templates and photos, have links for someone to buy Fireworks etc.
I know that the best thing is to use it to sell real fireworks but...
Would the things be different if he owned fireworksreview.org?

**draqon** · 10-20-2002, 03:50 PM

as best as I know:

yes, you are allowed to create a noncommerical website to provide information about the software with the same name as your domain. However, you must be careful to make sure that your website doesnt imply or lead visitors to believe it is the official Fireworks website.

Its fairly unlikely the macromedia people would even bother you, if you arent trying to scam people, but simply providing info on their software.

dkny · 10-20-2002, 04:07 PM

Originally posted by draqon
as best as I know:

yes, you are allowed to create a noncommerical website to provide information about the software with the same name as your domain. However, you must be careful to make sure that your website doesnt imply or lead visitors to believe it is the official Fireworks website.

Its fairly unlikely the macromedia people would even bother you, if you arent trying to scam people, but simply providing info on their software.

but if macromedia wants it, you'll lose it to them.

if you use it for real fireworks, you wouldn't have problem w/ trademark.

**dvdrip** · 10-20-2002, 05:06 PM

But if I am allowed to create a noncommerical website to provide information why will I lose it?
I am not using it in bad faith, not trying to sell and not pretending to be something I am not.
On what grounds will I lose it?

**draqon** · 10-20-2002, 11:11 PM

as best as i know:

I tend to disagree with DKNY. I have seen WIPO precedents that show that you can register a trademarked domain as long as 1) you provide a legitimate noncommercial site at that domain. and 2) you make no effort to sell the domain, or to mislead customers into thinking its the official site of the company.

During a WIPO suit, you probably would not lose to Macromedia. The only area of concern is the links to purchase the software. They make your site into a commercial site, which is harder to defend in wipo.

Tell me if I am wrong, Mr. Berryhill.

**spietreser** · 10-21-2002, 06:12 PM

I think i have an example of an existing and similar website: see www.frontpage2002.com

It is not from Microsoft, and they do sell the software, templates etc. Microsoft has not sued this guy and they just leave him alone. Macromedia is currently having financial problems so they may leave you alone for the moment. Meanwhile you can make your website like FP2002 and even sell the Macromedia software (they should even be happy if you do that!!)

Greetz,

...spietreser...

dkny · 10-21-2002, 06:21 PM

They won't sue frontpage2002.com because the domain will expire by itself at year 2003, or when frontpage2003 launches.

Just checked. The .com versions are regged until frontpage2008.com. So, the owner has to keep it at least 6 years.

**dvdrip** · 10-21-2002, 06:22 PM

Well to clear the matter. My domain has nothing to do with fireworks. It was just an example. I think you can find what domain I talking about in the forum.

I know another domain: http://www.windowsce.com/
I saw at the bottom:
"Windows and Windows CE are trademarks of the Microsoft Corporation.
HPC.net is not associated with the Microsoft Corporation."

I saw that frontpage2002.com has this at the bottom:
"This website is not owned or operated by Microsoft Corporation
If you are looking for Microsoft Corporation Website CLICK HERE"

Is this enough?

**dvdrip** · 10-21-2002, 06:33 PM

So what do you say?
That you will not get sued just because some day the domain will have less traffic? Doesn't sound logical.

Originally posted by dkny
They won't sue frontpage2002.com because the domain will expire by itself at year 2003, or when frontpage2003 launches.

Just checked. The .com versions are regged until frontpage2008.com. So, the owner has to keep it at least 6 years.

**jberryhill** · 10-22-2002, 08:45 PM

"Tell me if I am wrong, Mr. Berryhill."

I would, if I could figure out the question. Your answer hinges on "if you provide a legitimate noncommercial site" then you win.

Obviously, the UDRP itself says that legitimate noncommerical use is a complete defense.

That begs the question of whether a panel would determine that you indeed have a legitimate noncommercial site, with the emphasis on the word "legitimate". You might have a noncommercial site, and the panel could decide that it is not a legitimate use of the term. In that event, you lose.

But far be it from me to argue against a tautological proposition.

**dvdrip** · 10-22-2002, 09:12 PM

Can you please define noncommercial.
If I have an ad on my site, is it condidered a commercial site?

Silverwire · 10-23-2002, 12:12 AM

Originally posted by dvdrip
Can you please define noncommercial.
If I have an ad on my site, is it condidered a commercial site?

I thought I knew the answer to this one, but I recently saw a friend defend (in conversation, not court) a "_________chat.com" site (where the blank is major brand name, like automobiles).

www.HarleyChat.com (and his sister site, www.used-harley-davidsons.com) was given as an example. It's been up for years, and gives disclaimers that they are in no way connected to Harley-Davidson. The guy has sells used bike classifieds, and ads and links to all kinds of commercial Harley stuff. He even asks for DONATIONS!

I was dumbfounded. Must he have permission from Harley, or he is he just lucky they are looking the other way? Or are the rules just different for outlaws with tats?

**Ari Goldberger** · 10-23-2002, 09:24 AM

YES! A domain owner absolutely has the right to use a generic word for its descriptive purpose. This is a key principle of trademark law, and is established under the UDRP in numerous decisions. In fact, there are UDRP decisions that hold that the mere registration of common word domain, in and of itself, establishes the registrant's legitimate interest. The only problem would be if there is evidence that the domain owner is using the domain name to play off the trademark.

**jberryhill** · 10-23-2002, 09:27 AM

On the Harley thing, refer to this case:

http://arbiter.wipo.int/domains/deci...2001-0160.html

The question of whether a site is primarily "commercial" or "non-commercial" is going to be determined based on the totality of the circumstances, and not whether there is or is not an advertisement.

Yes, there have been non-commercial sites which used a free Hosting service under which they were required to have a banner ad on the page as a condition of hosting, and, yes, there have been panelists who have taken a narrow view that advertisements of any kind render a site "commercial". There have been panelists which have viewed the presence of such incidental advertisements as not detracting from the primary non-commercial nature of the site.

What many people don't seem to get is that many UDRP panelists are not evil - it is simply that they do not understand things like banner ads in exchange for free hosting, and they will not understand if it is not adequately explained to them. The biggest flaw I see in a lot of pro se UDRP responses, is that the respondent jumps into the middle of a pile of assumed knowledge, and does not lay out the argument by connecting all of the dots from A to B to C...