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  1. #1
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    I have noticed a domain on one of the expired domain searches - it takes the form of ...

    companyname-keyword.com

    the two word phrase that this makes is potentially very lucrative - it gets a lot of searches - and I am assuming with this domain it would get you #1 or #2 position.

    Obviously there is a legal issue here - the last thing I want to do is get into that kind of trouble - but I am thinking about registering it and then approaching the company concerned to ask their permission to build an affiliate site.

    I think just going ahead without permission is too risky.

    I'm figuring the worst that can happen is that they will say no way - and they will probably offer to buy the domain off me.

    Maybe I should contact them BEFORE registering - or is that being too cautious?

    If I make it clear that it is only to be used to sell their product - and offer to give them a say in the content - eg I will NEVER put anything on the site that you do not approve 100% - do you think there is a chance they would allow me to use the domain?

    Anyone had a similar issue?

  2. #2
    Affiliate Summit Guy Shawn Collins's Avatar
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    giveawayrooms -

    Unless you don't mind potentially wasting the money to register the domain, I would suggest contacting the merchant first.

    In the case of my program, we forbid the use of ClubMom® or any variation in an affiliate's URL or in the name of their site.

    If an affiliate does this, they are subject to immediate dismissal from our program.

    Shawn Collins
    Director of Affiliate Marketing
    ClubMom, Inc.
    http://clubmomaffiliates.com/
    http://iAfma.us/
    http://affiliatemanager.net/

  3. #3
    ABW Ambassador Ron Bechdolt's Avatar
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    I've heard of many instances where the webmaster has been asked (by threat of legal action) to remove the domain. Be cautious, or you may be throwing your money away. I've even had companies contact me and threaten legal action for putting their company name in as one of my keywords.

  4. #4
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    You're in a potential minefield here.

    Am I right in assuming you have made up your mind to register the domain and make use of it ONLY if the company approves?

    If so, yes, you should contact the company as you suggested. Such an agreement between you and the company would be a Trademark Agreement.

    There's a good chance they'll say no. A lot of merchants are not aware of the advantages of online partnerships, and are merely considering others as competitors.


    If you go ahead without their approval, one of these three things may happen:

    1. They won't care, or your use of the domain will go unnoticed.

    2. They'll sue you in US court based on ACPA. You will loose if you're violating trademark law and you're using the domain in commercial trade (not making "fair use" of it). Note: You would normally only be violating trademark law if the company name is registered as a trademark in the US (likely registered with federal authorities, you can look this up) AND you are selling merchandises in the same market (area) as the company.

    3. . They'll sue you based on ICANN regulations (which you sign up on every time you register a domain) - and you will most likely loose. I don't have time to explain all this in details, but basically the burden of proof is almost non-existent in cases before the ICANN private "shadow" courts. The reason for this is that anyone who chooses to bring a case before the ICANN private courts sign on an agreement not to sue ICANN later in US federal court, including if they should loose the case. It's a way for ICANN to avoid federal lawsuits. To fully take advantage of this ICANN has created dispute rules under which it's much more likely for a complaintant to win than by using federal courts.

    BTW, a case before the ICANN courts does not require anyone to appear before a "judge". The way it works is that the complaintant files a complaint (a document) and pays the filing fee. The respondant is given the opportunity to file a counter-document. A "judge" then decides the case based on those documents.

    A couple of things:
    - If you approach the company before you register the domain and they say no but you still go for it, then you cannot win in ICANN court later
    - If you approach the company after you register the domain and they say no, then you cannot win in ICANN court later
    - If you offer the domain for sale, then you cannot win in ICANN court later
    - Don't expect them to buy the domain for anything more than your out-of-pocket cost, which is the registration and transaction fees only.

    BTW, the outcome of an ICANN case is usually that the domain is transferred to the winner. There's no fine or other "punishments".


    If you ask me what I would have done, I would have registered the domain without contacting the company. Build the site but be careful on how much work you put in. Enjoy the ride and hope that it will last for along time. If you are contacted by the company, stall the case and make sure everything takes place in writing (not by email). If they out of the blue offer to buy the domain from you, say no.

    -- Less is more --

    [This message was edited by Cellophane on October 29, 2002 at 09:56 AM.]

  5. #5
    Domain Addict / Formerly known as elbowcreek Thomas A. Rice's Avatar
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    Aw, no question, I would not go down that road. I guess the thing is, if you have to ask, it's probably not right, even if it's not illegal.

    Companies want you to bring in traffic that was not already looking for them. That's what you are getting paid for. Now, if the company is named 'laptops' , well, okay, you have a possibility there. But if you are wanting to reserve something like 'dell-laptops.com' , well I just don't think skirting the merchant's intentions and legal rights are the right way to go about it.


    So, as a long answer, no, I wouldn't mess with it.

    I Will FOCUS On My Goal

  6. #6
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    Shawn + 7-days

    I wouldn't have a problem as regards their affiliate program - they don't have one - I would be selling their product through another program that has lots of similar products too.

    I suppose the most sensible thing would be to contact them first - not because of the risk of losing money - it will only cost $15 to register the name so it will hardly be a major problem if I can't use it.

    Trouble is - if I contact them first, all that will happen will be that they will register the name themselves I'm sure

    I can't imagine that I could get into any legal problems if I made it clear that I had no intention of developing the domain without their permission - and that if they wanted it, I would transfer the domain over to them for the price I paid for it.

  7. #7
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    cellophane

    I am absolutely NOT going to develop the domain without their permission.

    The only thing I am unsure about really is whether to approach the company BEFORE or AFTER registering it

    I don't want to take any risks here - but if there is a 100% safe way to possible use this domain, I'd love to

  8. #8
    pph Expert! Gordon's Avatar
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    I just had to take a site down in the same circumstances. If you don't mind wasting $10.00 register the name but I feel fairly certain they will ask you to remove it.

    Travel safe
    Gordon
    YouTrek

  9. #9
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    You may safely register the domain if you want. There isn't any legal uncertainties by doing so under ACPA (ICANN thinks differently *sometimes*, the so-called blocking competition by occupying domains rule).

    So it's not illegal to park a domain. It's how someone makes use of a domain which is regulated by ACPA law.

    And yes, anyone may register and use a domain which has a trademark as part of the domain name, as long as the domain is not used commercially in competition with the trademark owner. Example, you could register the domain moonshoes.biz or bestmoonshoes.com, moonshoes being a trademark protected name, and use that domian to sell shoes in Asia, provided the trademark owner of moonshoes doesn't sell shoes in Asia. Or you could use the domain to sell something completely different than the trademark owner, like webdesign services, in the same market as the trademark owner operates within. Again, ICANN may think differently, but ICANN regulations are not law.


    added: I should mention the trademark name itself does play a part in the equation. If the trademark is a generic name, like moonshoes, protection is weak, opposed to a non-generic name like Microsoft which enjoys stronger protection.

    -- Less is more --

    [This message was edited by Cellophane on October 29, 2002 at 12:08 PM.]

  10. #10
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    .
    added2: I know I'm being pretty generic myself in my answer, not exactly in reply to what you asked about, but I wanted you, and others with similar questions, to have the bigger part of the picture.

    -- Less is more --

  11. #11
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    I'm 99% sure they are not going to want me to use it - I think I will email them before registering to check.

    I may as well, since I've already decided that there is no way I will use it without their approval - but it doesn't hurt to ask!

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