Best of 2011: Golden Nugget: Request for proposal
Originally posted July 26, 2011.
I’m requesting that the Golden Nugget casino accept a proposal from me — I want to handle their cost-effectiveness-be-damned domain trademark enforcement program! Ryan Gile explains:
When one considers that the minimum cost that a trademark owner would incur to file a domain name arbitration action under the UDRP is around $3000 (including fees paid for the arbitrator) and with an uncertain outcome (as anybody who has been involved in UDRP arbitrations will tell you), [infringement] lawsuits are a much much more cost effective way for a company to obtain possession of these domain names ($300 lawsuit filing fee, $100 bond, and maybe around $500-$1000 per case for attorneys fees and costs (assuming great economies of scale), since most of the documents are nearly identical and can be prepared mostly by administrative staff). In addition, unlike in a UDRP action, the lawsuit route allows the complainant to make a claim towards statutory damages for cybersquatting (minimum $1000 up to $100000 per domain name). Given the low likelihood that the Defendants will even respond to the complaints, each lawsuit has the strong potential to garner a $100,000 default judgment (albeit a judgment that is more often than not nearly impossible to collect).
Still, even at a price of about $1000 per domain name, one wonders why [Golden Nugget Las Vegas] wants to invest even that amount of money for some of the domain names it is seeking. All GNLV is doing is preventing other third parties from obtaining a relatively minuscule amount of [pay-per-click] revenue from the PPC ads showcased on the landing pages for each of these websites. As for the websites involving typosquatting, I continue to maintain that the vast majority of web users looking for GNLV’s GOLDEN NUGGET are saavy enough with respect to internet browsing that they will not be sidetracked by a landing page that offers links to an online casino or other hotel/casino – and will instead recognize their typo and retype the correct URL address or perform a search using one of the more popular internet search engines (which are certainly not fooled by these websites). When all is said and done, GNLV will be the proud owner of several domain names that will likely do very little in promoting the GOLDEN NUGGET brand and will generate very little additional traffic for GNLV’s websites (along with very little additional revenue) beyond what GNLV would’ve already had, but which GNLV now will have to continue to pay annual registration fees in order to maintain these domain names. But I guess GNLV considers that fee (along with the fees paid to its lawyers for these sutis) a small price to pay to prevent domainers from making a single penny (literally) off of the GOLDEN NUGGET mark.
Wonder not, Ryan! I’m willing to wager a guess at this one. I would bet it’s akin to Intel’s domain name enforcement policy: When you have a trademark that is the same as one or more English words, you employ a take-no-prisoners approach to enforcement. It’s part of the illegitimate, but well recognized and mainly judicially-sanctioned, wall that surrounds any “high equity” intellectual property. That wall is built out of the bricks of litigation and the mortar of financial ruin on any who would dare surmount it.
No, that doesn’t mean I think there’s anything meritorious in pay-per-click income illegitimately derived from someone else’s trademark, or that it’s not trademark infringement to generate such income. (Or that I’m saying it is.) But when trying to figure out the economics of the Golden Nugget policy, consider the GOLDEN NUGGET trademark, which has obviously acquired distinctiveness with respect to
gambling gaming, but which will still always contain the English words “golden nugget.” And they hate, hate, hate when people say that — “golden nugget.” Hate that golden-nugget-saying stuff.
So, quite rationally, the Golden Nugget folks want just about anyone with any designs on using those words to stop. Doing so enhances their portfolio of proof that could be used to demonstrate, on a challenge in a real litigation context, vigorous enforcement of both their rights and their “rights.” It also sends “a message that we’re going to protect the brand,” and then some. All this clears the brush and weeds and, well, even legitimate crops that could in any interfere with the flourishing brand equity of GOLDEN NUGGET as a trademark. The ideal goal, which all enforcement teams would acknowledge — well not, Intel, but give them a break here; they kind of almost started out with a fanciful mark! — is not achievable, but which is still the theoretical golden nugget we’re playing for: The extraction of the words comprising a trademark from the English language.
Could it happen? Probably not even in Vegas. But as any
gambler gaming aficionado can tell you, who cares about winning? The fun is in the, uh, fun of it!
Especially for the lawyers.
Hence my proposal. After all, I’d like to play with house money, too!