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Domain Names | LIKELIHOOD OF CONFUSION®
Tag Archives: Domain names

Trademarks are forever?

Originally posted 2006-06-10 22:30:28. Republished by Blog Post Promoter

No, not necesarily, but the DeBeers name is still pretty good currency when it comes to selling diamonds:

A New York diamond merchant acted in bad faith when he sought to capitalize on the famed De Beers name as part of his plan to sell diamonds on the Internet, a federal judge ruled on Friday.

U.S. District Judge Denise Cote ruled Rosenblatt violated trademark law through the use of the name DeBeers Diamond Syndicate Inc. that rightly belonged to plaintiffs De Beers LV Ltd., a joint venture of De Beers and luxury goods maker LVMH Moet Hennessy Louis Vuitton.

Rosenblatt’s decisions to apply for dozens of Internet domain names with the name De Beers, obtain a Web site proposal and seek investment dollars “were done in entirely bad faith,” she said.

This doesn’t sound like a particularly hard case, or an interesting one — so ordinary that it raises, in fact, the interesting question: How did this litigation every get to trial?

UPDATE:  I decided to look into the question on PACER.  This was actually some pretty hard-fought litigation, as obvious as the outcome looks in retrospect.  One opinion and order by Judge Cote involved motions to strike affirmative defenses.  The affirmative defense of unclean hands was stricken (not “struck”?); the motions to strike the affirmative defense of lack of standing and to dismiss the declaratory judgment counterclaim was denied; the motion to dismiss Sherman Antitrust Act counterclaim was granted, and defendants’ motion for was joinder was denied.

It still seems hard to justify, but of course, we know so much more now than they knew then, I guess.

No master of that domain

Originally posted 2009-06-18 00:02:03. Republished by Blog Post Promoter

Hot Property

Evan Brown reports on a California appellate case holding that, in that state at least, a domain name is not something a judgment creditor can have “turned over” as an asset of the debtor:

The provision in California law allowing turnover of property limits itself to tangible property that can be “levied upon by taking it into custody.” Looking to the case of Network Solutions, Inc. v. Umbro International, Inc., 529 S.E.2d 80 (Va. 2000), the court held that a domain name registration is not property, but merely supplies the intangible contractual right to use a unique domain name for a specified period of time. Even if the registration were property, it was not something that could be taken into custody.

It’s easy to miss this part of the equation quoted by Evan:  “a domain name registration . . .  merely supplies the intangible contractual right to use a unique domain name for a specified period of time.” In other words, it’s a license with an option to renew.

Of course, there’s no reason the California “turnover” statute has to limit assets subject to execution to tangible ones, though you have to think there’s some political reason that it actually does.  There are certainly plenty of people, and plenty of interested non-natural persons, in that state who understand the value of income streams and other benefits that may inure from holding a license or other intangible interest.  In fact, it may well be the case that those same people–do I have to spell it out?–are the ones who, if this decision stands, may find themselves in Sacramento asking the legislature there to amend the statute so it specifically applies to domain names.

Ah, you ask, what good will that do a judgment creditor if the Network Solutions is still an accurate description of the interest controlled by a domain nomain holder?  No matter how California law treats it, you can’t shackle a domain name and cart it over to some place it doesn’t really want to be, now can you?

Can you?

Best of 2011: Golden Nugget: Request for proposal

Originally posted July 26, 2011.

Golden Nugget

All that glitters

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. Read More…

Golden Nugget: Request for proposal

Golden Nugget

All that glitters

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.   Read More…


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