Domain Manage

Company takes domain even though they formed 2 yr after registration!

Discussion in 'Domain Name Disputes' started by melitaweb, Feb 16, 2006.

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  1. melitaweb

    melitaweb Member

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  2. Domain Forum

    Acorn Domains Elite Member

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  3. sneezycheese

    sneezycheese Active Member

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    Now let’s take as an example:

    Company ‘Z’ forms a subsidiary company named ‘ABCD’, which it lays dormant for a future project. Two year later a company ‘Y’ is created by another group and develops a brand called ‘ABCD’, it then applies and is granted the trademark for ‘ABCD’ and naturally company ‘Z’ and company ‘ABCD’ doesn’t know about it (remember company ‘ABCD’ is dormant). Now, company ‘Y’ wants to own company ‘ABCD’ and see’s that it is dormant and that it is owned by company ‘Z’. Company ‘Y’ approaches company ‘Z’ branding them as ‘Company Squatters’ and demanding that the company be handed over immediately. …Dose company ‘Y’ have a leg to stand on? NO. Can they go to Companies House and have the company handed over to them? NO. Can they go to court and have the company handed over to them? NO. Can company ‘Z’ sell company ‘ABCD’ for more than their ‘Out Of Pocket Expenses’? YES. Some examples: http://www.formationshouse.com/search/readymade.php . So why do we have this ridiculous situation with domains? I understand that in the beginning there was an issue with people buying domains purely to profit from companies/brands that had already been established, but what’s happening now quite frankly scares me.

    Oh dear, this has got me going now :(

    Maybe one day somebody on the receiving end of a poor DRS decision ‘purely’ based on the ‘policy’ will issue proceedings against Nominet for ‘unfair/unlawful contract’ and ‘negligence’.

    Link to ‘similar’ complaint against ICAN… http://wadnd.com/Complaint(ver4).pdf

    Maybe including a complaint to the OFT under the ‘Competition Act 1998’ … http://www.oft.gov.uk/Business/Legal/Competition/ca982.htm

    And maybe for good measure a complaint to Trading Standards.

    Please don’t get me wrong, Nominet staff are very helpful, I just think the ‘tool’ they are using is a bit blunt. It just seems that their contract could do with a bit of ‘tweaking’ to reflect some of the applicable laws of the UK. Personally I think it’s perfectly valid that a contract like this should evolve and improve over time ;)
     
  4. melitaweb

    melitaweb Member

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    I think the scariest bit of this is the complainant's belief they had a case due to this skewed logic:
    'whilst it is accepted that the domain name was registered prior to the date upon which the complainant began use of the ghd brand, the respondent primarily registered the domain name for the purposes of selling, renting, or otherwise transferring it to an entity to whom the domain name would be of relevance for a price in excess of its out of pocket costs....'

    In other words. Domain speculation should not be allowed and, provided we trademark a company, we should be able to take any relevant domain for registration fee even if we didn't have the foresight to get in earlier. By the same token I think people should sell me land they are not using purely because I have a better use for it - also they should sell me it at the *same* price they paid for it no matter how many years later it is.

    DRS 'experts' are nothing of the sort. This goes to show that you should *never* offer your domain to anyone - you don't know who they deal with. Scrap the DRS and let people go to court. At least judgements would be consistent.
     
    Last edited: Feb 17, 2006
  5. invincible

    invincible Well-Known Member

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    Careful there. That was what the Complainant was claiming and they would make their claim since they are obviously interested in acquiring the domain name. Many Complainants cut+paste the DRS policy around their own comments in their complaint. This appears to be what the Complainant did here.[/quote]

    On page 10 of the decision, the expert states
    I think this speaks for itself. Selling a domain name to someone who obviously has an interest in it is not considered abusive on its own when Respondent registered the domain name prior to Complainant gaining any rights on a similar term.

    The Complainant managed to sway the expert because it provided evidence that the Respondent had hawked the domain name around "...a number of stockists of the Complainant's products in order to try and elicit the best price..." and ..."for a sum well in excess of its out of pocket costs..." The Respondent didn't provide much in the way of evidence to back up its case of the "Getta Home Deal" development..

    I don't think it is impossible to offer your domain name to prospective buyers. If you are unsure, seek professional advice an, perhaps, ask the person you are contacting to sign an NDA.

    FWIW I don't agree with the entire decision but I can see where the Respondent made mistakes and also where the Complainant capitalised on them. The decision didn't have to go the way it did and I put the burden of error on the Respondents side, at least from reading the decision. Of course, there might be things we are not aware of.
     
  6. PaulX

    PaulX Member

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    Isn't that the Point ? The Respondent shouldn't be penalized for his ability to argue the case, What if he has a low IQ?

    It should be the job of the Expert to see through the BS and Do the right thing. When was the last time you saw a referee change his mind over a penalty just because the 10 players around him argued better than the other side.
     
  7. retired_member11

    retired_member11 Retired Member

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    The DRS is up for review in the next 12 months so get your views in early.
     
  8. invincible

    invincible Well-Known Member

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    I don't think "being penalized" is the right way of describing it. In a DRS, one party makes a claim over anothers domain name registration. You each get an opportunity to put your side forward, then an Independent Expert might make a decision. If a Respondent makes mistakes, it might cost them the domain name. It'd certainly be the same if the situation were reversed.

    "See through the BS" and "do the right thing". Both mean very little in the context of a DRS. The Independent Expert makes his, or her, decision based on the submissions from both parties. When they come to a decision I would hope they were doing it with their best intentions at heart. I think you're comments are too sweeping and not very specific to the actual case. It's all very well to come out with blanket comments but I feel that with each DRS you need to analyse what specifically happened.:D

    I am pleased to see that the ghd.co.uk appeal made many things a lot clearer. The Respondent got to keep the domain name, as you may have read elsewhere.
     
  9. bb99 United Kingdom

    bb99 Well-Known Member

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    They got to keep it, but only after paying £3k for the appeal (and maybe more for advice etc).
     
  10. vjroberts

    vjroberts New Member

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    GDH.co.uk would never have happened.

    In 2000 to go some way towards preventing companies reverse domain name hijacking an already registered domain name, CNNIC the Chinese Domain Name registry decreed that a Domain Dispute would not be allowed if domain name had been registered over 2 years ago.

    Nominets DRS was written in 2001 but omitted something similar.

    Chinese Domain Names Dispute Resolution Policy (01/11/2000)

    (2) Unless the subject matter of the request for protection has been recognized by the relevant authorities as a well known trademark, domain name dispute resolution authorities shall no longer accept a domain name dispute two years from the entry into effect hereof if the complained domain name was registered before the entry into effect hereof, and two years from the registration of the domain name if the domain name was registered after the entry into effect hereof.
     
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