Be Cautious of “Common” Words That are Trademarks

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Registering or purchasing a domain name that contains a commonly used word is a bad idea. It can lead to litigation or a UDRP, and it would severely limit a person’s ability to use the domain name.

The io9.com website had an interesting article about common English words that are actually trademarks, and I think it’s something domain investors should read. Some of these words are likely obvious trademarks to some people, but they may come as a surprise to others.

The aforementioned article had 15 common trademarks, but there are many others as well. Some trademarked terms that I frequently see in domain names that are listed for sale or sent to me for sale include the following:

Don’t Tell Me You Have a Small Budget

“I am interested in buying your domain name but have a small budget”

One of my big pet peeves when dealing with a prospective buyer is when they open an inquiry by telling me they have a small budget. I understand that they are at least trying to set my expectations at a low level, but I find this quite annoying and sometimes won’t even reply when this is one of the first things mentioned.

I have read various articles advising domain buyers to tell domain owners that they are students, working for a non-profit, looking to start a small business…etc. in an effort to get a better price. When I receive an inquiry with that type of language, I almost immediately write it off.

I understand that

Creative Domain Deal: Lease with Purchase Option

Earlier today, I wrote an article sharing some thoughts about Zalmi Duchman’s Forbes article. In my opinion, the biggest takeaway was Duchman’s advice about being creative to find a deal that works for both parties. Creativity can go a long way in making a mutually beneficial deal happen.

I want to discuss a type of deal that could benefit a startup that needs a particular domain name and a domain name owner: a lease with a purchase option. Essentially this allows a company to pay a monthly fee to use a domain name, and at any point in time, they could purchase the domain name for an agreed upon price. I want to share some advantages of this type of deal for both parties:

Not Owning the EMD Could Be a “Liability”

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I wish every startup founder, brand manager, and other people responsible for buying company domain names could read an article published by Zalmi Duchman on Forbes.com today. The article is entitled, “How I Blew 50 Grand On My Journey For The Perfect Domain Name,” and it offers some valuable insight to people considering a domain name that isn’t the exact .com match (EMD) to their brand.

Duchman discusses his startup called Fresh Diet. Instead of buying the FreshDiet.com EMD from the owner of the domain name, Duchman hand registered TheFreshDiet.com. Duchman explained that the owner of FreshDiet.com was asking $20,000 for the domain name, and he opted to not spend the money. Long (but interesting) story short, Fresh Diet became a big thing, and Ducman wrote that “our continued growth fueled my concerns that not owing FreshDiet.com would become a liability over time.”

The company ended up buying FreshDiet.com for much more than the original asking price, and they were able to get a deal done using a payment plan. Interestingly, based on the Whois information, it looks like Duchman’s deal was with Michael Berkens, whose company, Most Wanted Domains, owns some exceptional domain names.

The article offers excellent advice to others who might be in the same position as Duchman when it comes to buying the right domain name for their business instead of settling on something that may hurt the business:

Sign an Agreement Prior to Negotiating

Domain sale negotiations can be a bit risky. I think two of the biggest potential pitfalls include 1) a prospective buyer using the negotiations in a UDRP or legal proceeding or 2) a buyer failing to follow through with an accepted offer.

I think a creative  way that could reduce the risks is to have the prospective buyer sign an agreement prior to negotiating to buy a domain name. The agreement would list the terms and conditions of making an offer and discussing an acquisition.  When you receive an offer to buy a domain name or an inquiry about a domain name, you can tell the prospective buyer that you require an agreement to be signed prior to negotiating the sale of a domain name.

I would obviously speak with an attorney to have an agreement such as this drafted, and some of the terms I would want to include in the agreement would be the following (along with my rationale):

Buy The Domain Name When You Have the Chance

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I have been in off-and-on negotiations with a prospective domain name buyer since December. I am looking for high 5 figures for this particular domain name. When the discussion progressed last week, he asked why I increased my price from $18,000 to high 5 figures.

I searched through our email exchanges, and I found no mention of an $18,000 price. I asked him to forward me my email with this price because I knew it didn’t exist. He forwarded me an email mentioning the domain name and $18,000 price, and sure enough, it was not from me. It was from a former domain owner. His company subsequently sold the domain name to the company from which I bought it.

Unfortunately for the prospective buyer,