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Domain Name Disputes Discuss domain disputes, Nominet DRS or UDRP

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Old 28-04-2009, 07:01:38 PM     #1 (permalink)
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Question Trademark Infriging Domains - Help and advice wanted

Hi all,

Firstly, apologies if this is posted in the wrong area...but I'm after some advice.

I've very foolishly registered 5 domains almost two years ago (set to expire end of may this year) that contain trademarks of the worlds largest software company.

Now their laayers have sent me legal papers asking to hand the domains over which I quite obviously am glad too, but they've also asked for me to sign a declaration of intent to pay legal costs and damages to the the company.

On one of the domains i had set to point to godaddy cash parking and have earnt exaclt nothing from it, the other 4 just went to a nothing page as well with no competing ads and nothing on, so in owning these domains I have earnt diddly squat.

My question is whether or not i should sign the papers ? I have spoken to their lawyers over the phone who suggested that the software co is seeking at least 2K damages per domain name and with 5 names i could be looking at a 10K damages bill plus legal costs ? Is this fair, I havent really caused them any damage, and I'm willing to transfer all domains to them at my cost. So should I sign the papers and agree to pay damages to the company ? Do they need to prove these damages ?

I'm wondering whether or not to get a laywer of my own involved but I'm worried about the costs of them as well getting involved.

I'm not going to list the domains here but was just wondering if anyone else had any issues like this and could advise...(any lawyers out there would be great to hear from you too.)

Thanks in advance

Tiger

Last edited by EyeOfTheTiger; 29-04-2009 at 01:12:28 PM.
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Old 28-04-2009, 07:18:17 PM     #2 (permalink)

 
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DO NOT sign the undertaking in it's original form as you will be agreeing to pay an undisclosed amount of costs/damages.

You honestly need a solicitor, if you need a recommendation of someone who has dealt with a few of these exact same cases drop me a pm.

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Old 28-04-2009, 07:38:20 PM     #3 (permalink)

 
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They have to show loss of earnings to claim damages in the UK, if they can't proove loss of earnings then they can't claim it.

Ask them why if they realised it was costing them 2K in damages they never contacted Nominet and followed their DRS procedure (I presume .co.uk's when you say 2 years ago).

Tell them they have not mitigated their losses as required by UK law on legal costs and have chosen a more expensive legal option when a simple and cost effective solution was available.

Then tell them to pee off
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Old 28-04-2009, 07:42:59 PM     #4 (permalink)

 
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Originally Posted by GreyWing View Post
They have to show loss of earnings to claim damages in the UK, if they can't proove loss of earnings then they can't claim it.

Ask them why if they realised it was costing them 2K in damages they never contacted Nominet and followed their DRS procedure (I presume .co.uk's when you say 2 years ago).

Tell them they have not mitigated their losses as required by UK law on legal costs and have chosen a more expensive legal option when a simple and cost effective solution was available.

Then tell them to pee off
You are honestly advising this chap (who I'm guessing has no legal experience) to go back to them with the above without taking any legal advice himself??

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Old 28-04-2009, 07:51:08 PM     #5 (permalink)

 
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Just given him some legal advice, I used to work in a solicitors. Is that not legal advice?

People have to understand that comments on here do not constitute paid for legal advice and that is different from free legal advice.

If they can't work that out then you may aswell close this section and have a standard answer to every question saying "seek paid for legal advice".
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Old 28-04-2009, 08:03:20 PM     #6 (permalink)

 
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Quote:
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Just given him some legal advice, I used to work in a solicitors. Is that not legal advice?
I suppose it depends if you were a solicitor or worked as a cleaner or something in the solicitors

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Old 28-04-2009, 08:25:20 PM     #7 (permalink)

 
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I worked in a place to know that some solicitors are thick as pig s****,

I worked recovering costs and taking legal actions from third parties. There are strict limits on what are reasonable costs to claim from 3rd parties.

What is treated very strictly by a court is "Mitigation of costs" if one side has not mitigated their costs then it gets thrown out.

They can't just go round making costs up, ask them to break down the 2k costs because your solicitor wants to see it, and if it isn't justified then you will counter claim for the costs of your solicitor.

Maybe it needs rewording then my advice, "ask them why they haven't mitigated their losses by going direct to Nominet"

Ask them if they have previously had disputes in this country and why they continue to not take the cheapest path to settlement?

Might be wise to forget the pee in the wind stuff at this point
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Old 28-04-2009, 08:35:59 PM     #8 (permalink)

 
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Quote:
Originally Posted by EyeOfTheTiger View Post
I've very foolishly registered 5 domains almost two years ago (set to expire end of may this year) that contain trademarks of the worlds largest software company.
My understanding is that this company has regular abuses of its trademarks and is therefore very litigious in protecting them. If you do some further searches on the company name on this forum and on the wider internet, I am sure you will find a few examples of people being prosecuted by them, so you will gain a better understanding of how to minimise damages claimed against you.

FWIW my non-professional view would be that you are in quite a weak position. I too would say don't sign anything they send you as this will put you in an even weaker position. You might also find some useful info at:

OUT-LAW.COM: IT and e-commerce legal advice and support

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Old 28-04-2009, 08:50:06 PM     #9 (permalink)

 
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I am not a lawyer but I would like to point out something here - solicitors and lawyers sometimes like to drag things out and make mountains out of molehills as it's effectively a way of generating more revenue for themselves. So if you are going to see a solicitor, make sure you are well prepared before the meeting and have a list of questions written down before the meeting i.e. do they have a leg to stand on in UK law to try and 'extort' money out of you in this way? what if you simply cancel the domains - would they have a leg to stand on in getting compensation? etc

Also some solicitors partake in a scheme whereby they give you the first half an hour of legal advice for free (ask your local enterprise agency for a list of local ones). They do this basically because they know half an hour is not enough time for an indepth chat or to analyse the legal situation you are in fully. So really it's a con - it's not intended as legal advice at all - they do it as an intro intended to rope you into hiring them for a subsequent meeting (at 200+ per hour).

However I twisted this round to my advantage once by doing as much research into the legalities of the situation I was in first so I didn't need to go round the houses explaining the ins and outs of the situation and giving details of all correspondance (which no doubt they would insist on reading - probably slowly!) etc.

I made a short list of key questions for which I could not find answers in my research. I then booked my free half hour appointment with a major national law firm, explained the situation in legal terms which took me about 5 minutes (as I was well prepared and I understood most of the legal implications of the situation from my research) and hit them with the questions. I got precisely information I needed and hence did not require another meeting, so I got my legal advice for nothing, and learnt a lot from the research. So I would advise put the effort in yourself and be well prepared.
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Old 28-04-2009, 09:06:16 PM     #10 (permalink)

 
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I think my actions would be: I'd transfer the names over to them - without comment to them. I wouldn't admit blame or anything - I literally would not say anything to them at all. I'd just transfer the names and ignore them completely. It's quite possible they would not bother pursuing it further. If they did continue pursuing it, I'd then get a lawyer involved.
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