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Domain Legal Advice

Elliot Silver
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4

Subscribe to Elliot's Blog“I’m not a doctor, but I did stay at a Holiday Inn Express last night.” I admit it, I still get a kick out of those commercials. Even when they aren’t on television, I am reminded of them when I visit the legal section of some domain forums. Not only do many people ask some serious legal questions, but I’ve seen some misinformed answers. For people who rely on the advice of non-lawyers, I think you really need to take the answers with a grain of salt.
Don’t get me wrong – there are many smart people who want to help out and give advice to a legal question, especially when a large company threatens a small company who has rights to a domain name. However, unless the question is answered by an attorney who specializes in IP law, and more specificially, has experience in domain-related matters, I think those who are watching the answers need to be cautious.
Although I try to give a conservative opinion when pressed, I really try to advise people to seek the opinion of an attorney when it comes to domain legal matters. Even a response that may seem benign could cause damage to a person’s case or legal standing. While there are always obvious answers, it’s best to turn to a lawyer for legal advice.
Since I’ve been asked this question many times, here are a few lawyers who I’ve met and/or worked with in the past for various legal matters:
John Berryhill
Brett Lewis
Ari Goldberger
Stevan Lieberman
Steve Sturgeon
Howard Neu#mce_temp_url#

Will Newly Passed Legislation Impact Domain Owners?

Elliot Silver
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4

Subscribe to Elliot's BlogI don’t have a legal background, but I was just sent a link to some legislation that was just passed by US Senate.   The Act, known as the “Prioritizing Resources and Organization for Intellectual Property Act of 2008” creates a Cabinet-level position called the Intellectual Property Enforcement Coordinator.
Recently, some companies have gone after trademark domain names by citing violations of copyright acts in lieu of the Lanham Act, which specifically covers domain names.   This Act will allow the US Justice Department to file lawsuits against people who violate copyrights on behalf of the copyright holders.   Could this could be dangerous for domain owners whose names could potentially be considered copyright violations?

HUGE Domain Deal in the Works

Elliot Silver
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9

Subscribe to Elliot's BlogWhen you see that a HUGE domain deal is going to take place in the near future, who is the first person you think of that made the deal?   If you guessed Rick Schwartz, you would be correct.
Lightning doesn’t strike the same place twice, unless there’s a reason for it.   While some people have said that Rick Schwartz is “lucky,” I would strongly disagree.   Rick saw the potential in domain names many years ago, scoffed at selling most over the past few years, and has recently cashed in, while retaining some of his best names. Not only did Schwartz recently work out huge deals for iReport.com and Property.com (and RoomDividers.com last week), another deal is in the works that in Rick’s terms, “will blow the doors off the industry at the darkest time…..AGAIN!”
While the domain name in discussion hasn’t been publicly revealed yet, the deal is going to make headlines for Schwartz again – and for his friend Kevin who had a hand in the Property.com deal as well. While I won’t publicly congratulate Rick for this until the deal is done, I will say that from this and my own personal experience, it appears more end users are beginning to understand why they should own category defining generic domain names, and many are paying big bucks to get them.

Use Caution When Updating Whois Information

Elliot Silver
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0

Mike Berkens wrote an important post today about keeping your Whois information current and updated. ICANN regulations require that Whois information is accurate, and if the information isn’t accurate, there is a chance that your domain name could possibly be taken. There are also many legal reasons to do so, which Mike outlines in his post. It just makes sense to keep your information updated, and if you are worried about spam emails or privacy, just buy the privacy guard.
In this vein, I think it’s also important to note that some UDRP panels have ruled that a change in registration information can be seen as a brand new registration. One recent case (although it didn’t really impact the decision) was on the BME.com case, which the respondent lost. The respondent had changed his Whois information (between his own entities), and they still cited this changing Whois information.
In addition to this issue, Godaddy also seems to still lock domain names for 60 days when the Whois information is updated.   While this can usually be remedied somewhat quickly if you contact them, it is a nuisance.
Yes, maintaining your valid Whois information is most definitely important – especially if a signficant event has impacted it (ended partnership, bankruptcy, company formation, divorce…etc).   However, keep in mind that changing your Whois information could put your domain name at risk depending on who is monitoring your Whois listing.

McCain & Ridge? Ohio Democratic Party Thinks So

Elliot Silver
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0

It appears that the Ohio Democratic Party believes that Senator John McCain will select Tom Ridge as his Vice Presidential running mate. According to the Whois database, on August 18th, Todd Hoffman from the Ohio Democratic Party registered the domain name McCainRidge.net. At the moment, the domain name resolves to a generic Godaddy landing page with links to John McCain buttons and political messages.
While some people might immediately claim that the Ohio Democratic Party is cybersquatting on this domain name, I would like to point out that there isn’t necessarily any evidence of bad faith in this registration – unlike many others who intend to profit from selling the domain name. Should the Ohio Dems decide to post an anti McCain/Ridge website, their rights to free speech would probably be protected under the US Constitution’s First Amendment, although I am not an attorney.
At the moment, the only entity profiting from the registration is Godaddy who is monetizing the name – presumably unbenounced to the registrant. IMO, the real legal question is this: if the Ohio Democrats utilize their First Amendment rights and they attempt to solicit contributions on the site, would this be considered a bad faith registration, as they are profiting off of a famous name/brand?
I think this is more of a John Berryhill question!

McCainRidge.net Whois Record
McCainRidge.net Whois Record

Just Asking for a UDRP from the NBA

Elliot Silver
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5

With the NBA set to announce the name of the newly relocated Oklahoma City basketball team, rumors have been circulating that the team will be named the Thunder. The rumors seem to stem from the registration of OKCThunderBasketball.com as a reason for this, although OKCBarons.com seems to be owned by a law firm in Oklahoma City.
Nonetheless, I must point out something that would seem to be asking for a UDRP. Out of curiosity, I searched for the Whois on ThunderBasketball.com, as this would seem to be a better domain name to own. The name has been registered since 2005, which would indicate the owner didn’t register the name in bad faith or to capitalize on a professional basketball team called the Thunder. Perhaps the owner’s son played for an AAU or local team called the Thunder.
However, I believe he is making a huge mistake that will surely cost him his domain name if the Oklahoma City team is renamed the Oklahoma City Thunder. The owner currently has a statement on the site: “Thunderbasketball.com For Sale… To the highest bidder. Make an offer at info@thunderbasketball.com”
While this certainly doesn’t show the owner intended to profit off of an NBA franchise, a UDRP panel could and probably would interpret it that way. If this isn’t damaging enough, he has an Adsense block advertising “OKC Basketball Tickets,”Sonics Fans – Hoops” and “Supersonics Ringtones.” The NBA is aware of the UDRP process, and is currently 3-1 in UDRP decisions.
There is always a fine balance between trying to sell a domain name that has become sensitive (for whatever reason) and not putting yourself at risk. It would be likely that the NBA and other fans/speculators would contact the owner in an attempt to purchase the domain name whether the owner had the statement up there or not. Putting a for sale sign up at this time is putting the domain name at serious risk.

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