How would you use this domain?

[dudeinva]

A year ago, I snagged a domain of a famous cartoon character using Pool. It's not the .com, but the .net. Traffic is very good. I want to build a fan site that also sells official licensed products through affiliate links. The question is, what to do with the domain. It is trademarked and the TM owner owns many of the other extensions. Do I

1) Build a site around the .net domain and hope the site doesn't rile the company lawyers.

OR

2) Reroute traffic from the .net domain to another nontrademarked domain and build a site around the nontrademarked one.

I would appreciate any feedback/comments/advice. Thanks in advance!

[Acro]

It's like asking: do I eat a lemon or do I lick a battery's (+) pole?

Either way, it doesn't taste like milk chocolate.

[MediaHound]

I can help you tap ebay's API and cash in with it if its getting good traffic.

[namedropper]

Either way is a major trademark violation.

[namestrands]

Ever considered that the domain is a bad faith registration and your intent is to profit from the trademark of a well known cartoon character that's name or mark would be protected under trademark law?

ICANN Policy, 4(b)(iv) ( a Respondent engages in bad faith when "by using the domain name, [it has] intentionally attempted to attract, for commercial gain, internet users to [its] website or other on-line location, by creating a likelihood of confusion with the complainants mark as to the source, sponsorship, affiliation, or endorsement of [its] website or location of a product or service of [its] website or location")

[dudeinva]

I found this today. I wonder if it would help my position:

"Fair Use" exists in statute (17 U.S.C. 107) and in years of court rulings. Basically, a person may use a copyrighted work without the author's consent when the author is not deprived of the opportunity to profit.

So if I sell products through officially licensed merchants, the copyright owner profits.

[namestrands]

but who is to say that the owner of the copyright would not earn more from selling the goods themselves direct using the domain name in dispute.. You should also note that in the event of a UDRP, you would have to abide by the ICANN regulations and you would have to prove that you are entitled to the domain over and above or equal to the complainant.

[dudeinva]

I did some URDP reseach and found some info that I believe boosts my case. It seems the panel has approved of fan club sites that use trademarks in the domain. Consider the info below from one such case:

"Fan club websites, which use domain names identical or confusingly similar to trademarks of famous artists, bands or video games, have met mixed reception among panels. To represent a legitimate interest under paragraph 4 (c)(iii), such web sites must be “noncommercial” in nature, and disclaim that they are an “official” site of the person or entity, which they are devoted to. This view is supported by the case “tupac.com/net”, where an individual for many years had spent time, money and effort to create an open and free web site devoted to the artist Tupac Shakur. The website contained information about the artist`s life, music, poetry and movies. Further, the site provided a link to the official site and a disclaimer which expressed that there was any commercial connection between the sites. In addition, steps had been taken to ensure that all links to businesses selling items related to the artist, were businesses licensed by Tupac Shakur. The panel concluded that the site was noncommercial, and did not divert consumers or tarnish Tupac`s trade mark. Neither was any bad faith involved."

[namestrands]

The words "NON-COMMERCIAL use" would not apply if you are offering to sell products relating to the character

[dudeinva]

But the site in question WAS and is currently selling products using affiliate links from authorized merchants.

[namestrands]

DudeInva.. you asked for feedback and thats what I gave you.

Someone can be a serial killer, just because he has not been caught does not make murder any less against the law.

My opinion is based on my experience and my understanding, but as you do not say what the name is, leads me to believe that you too think that it is a potential legal minefield.

Every law has case law to defend either party, if and when the owner of the character decides that you are dilluting their trademark character in my opinion you have little to no defence whilst you are profiting from their markâ„¢. You really should find similar cases that have had UDRP's... and if you are serious about this, perhaps you should inform the â„¢ owner and get written permission.

The facts as I see it are..

You are aware of the Mark and therefore Under Constructive Notice.
You are Profiting from a Famous Trademark not of your own
You registered the domain with the intention to profit from the trademark
The domain name is the Exact name of the Trademark
You have no legitimate interest in the domain
You are not and have not been commonly known by the domain name
You should be considered to have no rights or legitimate interest in the domain because the registration infringes on a federally-registered Tradmark

The list above is only a sample of what the complainant will argue, the list is not limited to the above and is exaustive.

You would have to disprove all of the above in the event of a UDRP, or of course America did pass the anti-cyberasquatting law which comes with a nice fine of upto $100,000 or maybe its $10,000 anyway you would have to sell a whole lot of merchandise to cover this..

Hey dont get me wrong I have argued some amazing case law to defend my domains, I am just playing devils advocate here.

I do wish you every success with your venture...

Best Regards

namestrandsâ„¢

[morch]

Originally Posted by namestrands

DudeInva.. you asked for feedback and thats what I gave you.

Someone can be a serial killer, just because he has not been caught does not make murder any less against the law.

My opinion is based on my experience and my understanding, but as you do not say what the name is, leads me to believe that you too think that it is a potential legal minefield.

Every law has case law to defend either party, if and when the owner of the character decides that you are dilluting their trademark character in my opinion you have little to no defence whilst you are profiting from their markâ„¢. You really should find similar cases that have had UDRP's... and if you are serious about this, perhaps you should inform the â„¢ owner and get written permission.

The facts as I see it are..

You are aware of the Mark and therefore Under Constructive Notice.
You are Profiting from a Famous Trademark not of your own
You registered the domain with the intention to profit from the trademark
The domain name is the Exact name of the Trademark
You have no legitimate interest in the domain
You are not and have not been commonly known by the domain name
You should be considered to have no rights or legitimate interest in the domain because the registration infringes on a federally-registered Tradmark

The list above is only a sample of what the complainant will argue, the list is not limited to the above and is exaustive.

You would have to disprove all of the above in the event of a UDRP, or of course America did pass the anti-cyberasquatting law which comes with a nice fine of upto $100,000 or maybe its $10,000 anyway you would have to sell a whole lot of merchandise to cover this..

Hey dont get me wrong I have argued some amazing case law to defend my domains, I am just playing devils advocate here.

I do wish you every success with your venture...

Best Regards

namestrandsâ„¢

Agree be very carefull - Maybe sedo it and ask the guy if he minds you setting up a "fan site" that sells products related to him?


Doug