Guest Post: Litigation Fall Out From Playboy Mansion Illness at DOMAINfest 2011

This is a guest post written by attorney Enrico Schaefer of Traverse Legal. Schaefer is an experienced IP lawyer whose firm handles cases in a variety of practice areas, including litigation. I have been told that a complaint in the matter below may be filed today or tomorrow.  For more information, contact Mark Clark.

—-

What started out as a simple post on German domainer Nico Zeifang’s Facebook page two days after the Playboy Mansion Party at DOMAINfest turned into something much bigger. Under the title “Domainerflu count: Who else caught the disease at DFG?” the post generated over 200 comments. Within hours, it was clear that at dozens of Playboy Mansion party attendees were sick, with the same upper respiratory symptoms. Within days, the number of reported illness had climbed to over 150 Playboy Mansion party attendees (no doubt more by now), with many moving into pneumonia.

Ironically, it was the nationalized Health Care providers in Switzerland who did early testing, with one Swiss party attendee reporting positive for Legionellosis with multiple levels of testing. Ron Jackson, whose wife Diana became pretty sick as well, started tracking the illness and reported the matter to the CDC who then involved the L.A. County Board of Health for a coordinated investigation including detailed questionnaires and requests for those who could afford it (or who were in LA and could get the test performed for free) to go through a battery of tests.

As of today, the L.A. Department of Health has confirmed the presence of the Legionella bacteria at the Playboy Mansion, although it has not issued its final findings.

The Los Angeles Department of Health remains circumspect about exact location of the bacteria at the Mansion and is waiting for other positive test results for Legionella bacteria in the samples taken from attendees before issuing a final report. Those of us who went through the testing are being requested to get more tests for comparison in the coming weeks. However, there is little doubt that “it is more probable than not” that the vast majority of Playboy Mansion attendees got sick from a bacterial strain of Legionella as a result of exposure at the Playboy Mansion. The common symptoms, consistency of symptoms with Legionella, timing, prior diagnosis of Legionella in at least one sick attendee and the curious revelation of finding Legionella bacteria at the Playboy Mansion well before the investigation was concluded make this pretty obvious.

I was put in an unusual situation as a result of the illness. I got very sick on Sunday after returning from DOMAINfest, with days of being in bed, long periods were I could barely speak because my voice was just about shut down, fever, wicked pain in my lower back, exhaustion, cough and related problems. My wife, who also became sick but not as severely, was leaving on vacation shortly after I became ill leaving me at home with three young boys trying to get my energy, voice and health back. For the last two years, I had been planning a backcountry hut trip in Colorado at high altitude. It can be a dangerous trip in good health. I had to cancel given the problems with my lungs and breathing. I struggled at home and at work for weeks. I continued to hear about people who were stuck in L.A. because they were too sick to travel, and others whose infection turned to pneumonia.

I asked one of the attorneys in my office to start doing an independent investigation, reviewing expert data on Legionaires, its causes and prevention. How would a place like the Playboy Mansion end up exposing guests to Legionella bacteria? It turns out that the issue really comes down to cleanliness. A little chlorine goes a long way. All of the information suggests that the Playboy Mansion failed to keep their facility clean.

I decided to retain my law firm to represent my wife and I in investigating the matter and, if appropriate, filing a lawsuit against responsible parties. There is information about obtaining legal representation and the anticipated lawsuit to be filed here. I had gone from being a lawyer to a client and this is why I made the decision to hire an attorney to protect my interest.

I see a lot of things as an attorney. A portion of my career was devoted to representing injured people in mass accidents, including class action asbestos cases. Our firm recently handled the largest number of victims from the Crown Princess Cruise ship accident in the Los Angeles, California complex litigation court. “Personal responsibility” is a common theme in tort cases these days. But typically people are referring to the ‘responsibility’ of the person who was hurt.

I know based on my experience that most people who are negligent are quick to point at the victim, without taking any ‘personal responsibility’ for their own actions. Our justice system helps hold people accountable. The “Playboy Plague” was not an accident or act of God. By all appearances, it was an easily preventable exposure at a location, which is paid significant sums to host such events. The effects were much more than a minor inconvenience for me and many fared much worse than me.

So what good can come from all this? I would hope that the Playboy Mansion would clean up its act as appropriate and take the measures necessary to make sure its guests are safe in the future. But the real effect is more likely the other large-scale event locations who see what happened here and find information which causes them to upgrade their efforts to provide a clean environment for their guests. It often turns out that publicity about these types of occurrences can have as much prophylactic effect as courtroom litigation. The Internet is a wonderful thing. It helps people make smarter decisions about many things, including safety. The Internet makes accountability permanent.

There are several other attendees who became ill who have contacted my law firm, and are seeking representation as well. I expect more will join in as more information is publicized about the event. In many cases, the damages for Plaintiffs won’t be unduly large, or have impacted them in a significant manner. Nevertheless, victims will have a shot at ‘fair compensation’ for having the very unpleasant experience of contracting this illness and the knowledge that others may not have to go through the same experience.

And there are questions that still need answers? Has this happened at the Playboy Mansion before? Are there instances where people got sick there but there was no Ron Jackson to step in, coordinate information and contact the CDC?

This has been unfortunate for DOMAINfest which put on the best domain conference ever, and DomainSponsor who shelled out a lot of money to sponsor the party at the Playboy Mansion. Both brands were impacted by the incident, although probably not within the community of people who know them well. Regardless, they deserved better for their A+ effort. Seems like the folks at Playboy may owe them more than an apology before the dust has settled on this one.

Paypal Limitations in India Could Pose Problems for Domain Investors

15

I read the TechCrunch article  yesterday about Paypal limiting payments to merchants in India to $500 beginning March 1st, and I think it will make an impact on the domain business. If merchants need to accept a higher payment amount, they need to look elsewhere.  The restrictions have been put in place by the Reserve Bank of India rather than Paypal, and it was announced on the official Paypal blog yesterday.

In my opinion, this news could be very bad news for  Indian domain investors and could also be a big annoyance to others who live outside of India but who do business with Indian companies.

For just about all transactions that are under a few thousand dollars, I use Paypal. From my perspective, this limitation would pose a problem for me if I am buying a relatively low value domain name for a domain investor in India. The cost of using a service like Escrow.com might be prohibitive on a low value deal (but above $500), yet the seller wouldn’t be able to accept a Paypal payment.

Similarly, for web development projects, it doesn’t appear to be possible to pay Indian merchants more than $500 via Paypal. I’ve worked with companies in India (found on Elance), and this would impact them, and consequently, it would impact my business.

Unless I was buying a domain name or working on a significant project that was critical to my business, it would be highly unlikely that I would opt to use another payment service like Western Union or something else.

Last night, I spoke  about the Paypal situation with Andrew Allemann, who works for Indian-based Directi, the company that operates Skenzo, Big Jumbo, DomainAdvertising.com, and others. According to Andrew, his companies “use  a payment processor for all of our payments, and this payment processor won’t be affected by any of the changes.” That’s a bit of good news.

If you are doing business with merchants or domain investors in India, you need to be aware of these Paypal restrictions that are coming soon and make sure you and they are covered.

Why I Think Groupon Needs Its Domain Names NOW

GrouponYou may have read that Groupon is fighting to get its Australian ccTLD domain name. It had offered to pay over a quarter of a million dollars for the domain name and a similar trademark filing. It seems a bit odd that a company would seemingly reward an alleged cybersquatter for this much money, but Groupon needs this (and similar) domain names ASAP.

Groupon is a rapidly growing company in a vertical that has very few barriers to entry. Local companies with the manpower and desire to pound the pavement can work with local businesses and start their own entities. As businesses go, this one is not too difficult to duplicate, although it isn’t easy to scale.

Groupon is in the phase where they are quickly growing around the world, be it with acquisitions of large enough competitors that they can enter markets rapidly, or by entering the market and becoming the dominant presence. Groupon is fast becoming known throughout the world as THE company that offers group deals.

In addition to using a universal .com domain name (Groupon.com), the company is embracing local ccTLDs. The company operates sites like Groupon.ca, Groupon.de, Groupon.com.mx, Groupon.co.uk, Groupon.es, Groupon.fr, Groupon.co.il, Groupon.jp, Groupon.cn, and many others, which are highly targeted.

With its rapid growth, the company probably doesn’t have the time to wait for the settlement of lawsuits or determination of UDRPs to get the domain names it wants to operate. Instead, the money is less important to this well funded company than the time it will take to get the domain name via UDRP and/or lawsuit.

It’s interesting to watch Groupon seemingly reward others for grabbing Groupon ccTLDs, but domain investors should note that this is an isolated situation, and doing so with other trademarks can be very risky and expensive to defend.

Verizon iPhone Domain Name Suffers Same Fate as WikiLeaks.com at Go Daddy

6

Page Not Available

As news spreads of a presumed iPhone announcement from Verizon Wireless tomorrow, commentators have been discussing some related domain names that are now owned by Verizon. For instance, iPhoneForVerizon.com now appears to be owned by Verizon. The company  fiercely  defends it’s trademarks, so this is no surprise to me.

Perhaps the best iPhone / Verizon domain name would be VerizoniPhone.com, which does not appear to be owned by either Apple or Verizon Wireless. Instead, it appears to be registered to a California resident and registered with Go Daddy.

According to a historical snapshot available on DomainTools, the domain name appears to have previously had a standard Godaddy landing page, which generally contains pay per click links.

However, the landing page seems to have suffered the same fate as that of the WikiLeaks.com domain name. Instead of a PPC-filed lander, there is a graphic that says, “Sorry! This site is not currently available.” I don’t know if there is a way to tell if Go Daddy intentionally isn’t monetizing it or if the customer changed the landing page, but it seems to be a smart move to avoid litigation for monetizing this domain name.

A big question I have though is if Go Daddy is responsible for removing the PPC landing page on this domain name, does it put the company at risk with other potential trademark names that are being monetized by them on their coming soon pages?

Could other trademark holders argue that if Go Daddy is willing and able to change the landing page for a name like VerizoniPhone.com, they should be doing it for all trademark names?  I have no legal expertise but think it’s interesting.

Oh… and I am very eager to hear the news… You can be sure my Blackberry will become a relic once the iPhone is available on the Verizon network.

Lorenzo International Limited Takes Aim at Tucows’ Lorenzo.com

17

According to the  World Intellectual Property Organization’s website, it appears that Lorenzo International Limited has filed a UDRP for the generic, first-name domain name, Lorenzo.com, which is owned and operated by Tucows.

From the outset and without any specific information related to this case, I believee Lorenzo International Limited will have a difficult time proving it’s case.  At the present time, Lorenzo.com is being used by Tucows as a vanity email service, and the domain name appears to be a part of the company’s  NetIdentity suite of first and last name domain names. In fact, it wasregistered to NetIdentity prior to Tucows’ acquisition.

Tucows has already successfully defended a number of similar cases, including UDRP filings for:

Tucows has lost a few similar UDRP filings, perhaps giving hope to Lorenzo International Limited. In the  Aubert.com filing, there was a dissenting opinion. The  Ricard.com UDRP and the  Weidner.com UDRP were lost as well. The  Dunlap.com UDRP was terminated due to a lawsuit filed in Ontario.

In the Walls.com UDRP linked above, the company successfully defending its ownership while citing its use of the domain name in question, which to me, also seems to be applicable for Lorenzo.com:

“Since 1996, NetIdentity had been providing personalized e-mail blogging and web-hosting services through a collection of personal surname addresses.    NetIdentity had acquired thousands of surname domain names such as <smith.net> and including the disputed domain name <walls.com>.  Customers with hosted websites with NetIdentity are given third level domain names corresponding to their own first name and surname, e.g. <bill.smith.net>.    Netidentity had this secured over 70% of US surnames as domain names.”

Considering the similar circumstances between the Lorenzo.com domain name and the Walls.com domain name, I don’t see why the company shouldn’t retain the rights to Lorenzo.com.

In my opinion, it’s upsetting that a company can so easily try and claim rights to a generic domain name that is being used by another company for its business operations. Of course Tucows can easily afford the legal fees in such an instance, but it’s upsetting to me that Tucows needs to defend this domain name.

Alleged Domain Theft Involving 3 Letter Domain Names

4

Someone posting under the handle “Toilet-Monster” posted a warning on DNForum this morning about a reported domain theft that allegedly occurred with his Godaddy account. The DNF member has a iTrader rating of 30 and has been a member of the domain forum since 2007.

According to Toilet-Monster (great name, BTW), the following 3 letter .com domain names were allegedly  pilfered  from his Godaddy account:

  • EOZ.com
  • GEQ.com
  • KPT.com
  • RIJ.com
  • UWU.com

In addition to these valuable domain names, a number of other names, including 4 letter domain names, were also taken. Visit DNForum for the list of domain names.

If someone approaches you to sell names quickly, for less than market value, or using a payment method that doesn’t seem right, you should be extra cautious. It’s also your responsibility to do due  diligence  on the domain names and the seller whenever you complete a deal. If you don’t, you could risk your money and the domain names.