Misspellings- I need a lawer for this one!! - DNForum - Domain Sales, Domain Forum, Domain Appraisals, Domain Registrars

**Kazam** · 11-27-2002, 01:10 AM

removed

**HOWARD** · 11-27-2002, 04:52 PM

Most GOOD affiliate programs are legitimate and have worked out an agreement with the TM holder to drive traffic to the TM holder's web site. If you're dealing with one of these programs, you have nothing to worry about.

**Kazam** · 11-28-2002, 04:46 AM

**lawpal** · 11-29-2002, 08:41 AM

Quote:

Originally posted by HOWARD
Most GOOD affiliate programs are legitimate and have worked out an agreement with the TM holder to drive traffic to the TM holder's web site. If you're dealing with one of these programs, you have nothing to worry about.

I think that is a very simplistic explanation, and a dangerous one at that. Making an assumption that an existing business would simply accept potential deviation of commercial traffic to a domain name with a misspelling is, in my opinion, stupid. If you are dealing with one of these programs I would not assume "that you have nothing to worry about."

Dump the domain name and the associated risk.

peace
lawpal

**TrafficMonsterRRR** · 11-29-2002, 10:41 AM

It seems that the original question may have been misunderstood.
This is what I think the original poster was asking via example:

1)YrvsModels has a TM and operates YrvsModels.com
2)You reg IrvsModels.om
3)You sign up for an affiliate program with YrvsModels directly.
4)In your app, you told YrvsModels that you will be operating out of ModellingLinks.com (lied)
5)Your promotion, SE submission, better spelling whatever works, so you start pilling up the bucks.

Question is, when YrvsModels finds out you are using the mispell of their TM, will they throw a fit?

I think you are safe if YOU TOLD THEM THE TRUTH about the SITE you would be using in your original application.

If you didn't lie and went through a major affiliate program (into that they examined and approved your app.-a contract) maybe you have some added protection, dunno....maybe that's what Howard was saying...

**Kazam** · 11-29-2002, 12:20 PM

removed

**jberryhill** · 11-30-2002, 02:28 AM

"That is exactly what this is about. "

If the previous description, including the part about lying on your application, is *exactly* what this is about, then you are not taking a "calculated risk", what you are doing is called "fraudulent inducement to contract".

But seeking any kind of intelligent discussion based on a 14 word description of the situation is going to be subject to all sorts of interpretational ambiguity.

**jberryhill** · 12-02-2002, 05:17 PM

As a point of reference, the following text is from the Commission Junction publisher agreement. CJ is a leading affiliate program consolidator:

----
Licensees/sub-licensees shall not adopt any names, trademarks, service marks or domain names that are confusingly similar to, or in combination with any of licensor's tradenames, trademarks, service marks and/or domain names.
-----

That seems about as clear as it can be, for affiliate programs administered through Commission Junction.

12-02-2002, 05:47 PM

Quote:

Misspellings- I need a lawer for this one!!

You're really into the misspelling business, huh?

**Kazam** · 12-02-2002, 06:00 PM

I try not to .Honestly i'm staying away from them now, but the one's I have is a shame to waste all that traffic.i guess i have to drop it.thanks for the advice.

**jberryhill** · 12-06-2002, 06:02 AM

This is what the practice of using "similar" names, even if they are affiliate sites of the actual TM owner, looks like from a TM enforcement attorney's eye view:

http://www.venulex.com/viewdoc.asp?documentID=2119

Excerpt:
------------
"Picture your website as a bustling seaside port where customers obtain your unique products and services. Your port proudly flies your trademarks and copyrighted works, to distinguish your products and services from others. To increase customer visits to your port, you wisely allow certain other ports and ships to display your marks to direct customers to your port for a small, per-transaction fee.

Too often, some of these ships are crewed by Cyber-Pirates (â€œAffiliatesâ€) in league with duplicitous ports (â€œHost(s)â€). Using your trademarks, the Affiliates succeed in attracting customers, but instead of re-directing them to your port, they get them to sail into the Host ports first. Because of those diversions, your port suffers a sharp drop in direct customer transactions (that carry no fee), and you find yourself paying increasing referral fees to these Host ports and Affiliate ships. All the while, the Affiliates hide behind your relationship with seemingly legitimate Host ports, driving substantial internet traffic away from your authorized websites and diverting substantial revenue away from your business."
----------------

Let's say this is one of those reading comprehension multiple choice aptitude tests... Pick the answer that best completes the sentence below.

Based on the passage above, the author believes that TM owners think typo-domains used for affiliate programs are:

(a) worth paying lots of money to the genius who thought of it.

(b) a crime against humanity.

(c) worth paying double whatever anyone who picks (a) thinks

(d) are... arrrrr... arrrgh... Avast ye mateys! Lawsuit ahoy!

If you picked (a) or (c), then the best use of your affiliate checks is to start endorsing them in my favor, and I will start a retainer account for you. Trust me, you'll be glad you did.

**Ari Goldberger** · 12-11-2002, 12:25 AM

I agree 100% with Sir Berryhill.

I think that just about the only time this would be ok is if you got the tm holder's express consent to do this. Now, you say why would a tm holder ever agree to this?

Here's a hypothetical: Say you own the domain name "singular.com," and, say, you use it for a popular singles site which gets tons of traffic. Perhaps, people looking for cingular wireless type that name. Maybe Cingular would be interested in an affiliate deal. It's the twist of where you have the correct spelling and the tm holder is at risk for picking a peculiar one (and what a DUMB thing that is in our "Dotcom" era).

**jberryhill** · 12-12-2002, 02:47 AM

"It's the twist of where you have the correct spelling and the tm holder is at risk for picking a peculiar one (and what a DUMB thing that is in our "Dotcom" era)."

Ari, you mean, like, a lawyer who uses "esqwire" instead of "esquire"? That kind of thing?

**Ari Goldberger** · 12-12-2002, 11:53 AM

It's the twist of where you have the correct spelling and the tm holder is at risk for picking a peculiar one (and what a DUMB thing that is in our "Dotcom" era)."

Ari, you mean, like, a lawyer who uses "esqwire" instead of "esquire"? That kind of thing?

GOOD ONE!! laugh:

But, my saving grace is I came up with the name BEFORE the dotcom era, originally filing my first tm application in 1994 before I had any idea what a domain name was. Believe me, it is pain having to spell E S Q W I R E all the time, and it's why I always show it as ESQwire. I have often thought about switching but I like the name too much, and feel obligated to it.

Maybe if I set-up a good enough affiliate program, I can lure Hearst into signing up, and then nail them with a UDRP action. (I'M JUST KEEDING!)