Nov 26
2011Domains with trademarks
Filed Under (Domaining) by Denys on 26-11-2011
In the last couple of days someone has placed a number of advanced bids for domain names containing trademark terms. I haven’t noticed them immediately before being notified by one of the members. Previously, I would have just removed them, as it would be against DomainLore policy to run auctions for trademarked domains.
This time, however, it made me think that often people seem to be overreacting when they recognise a well-known brand in the domain name. Would TM presence necessary mean everyone must keep miles away from such domain names?
Could there be a legitimate interest from these bidders? Does DomainLore need to function as a third-party arbiter or should allow for the interested party to leave bids for whatever they think is appropriate, but simply continue to restrict domains containing trademarks from being listed in public auctions. Any interested catcher can make their own grown-up decision, whether to catch them to fulfill the request of interested bidder, or keep away and ignore due to their personal judgments.
And that is what I’ve decided to implement with ‘private catch direct sales’. A number of people has expressed their concerns on this subject and DomainLore policy. Today I wrote extended reply to one of them and I am publishing it here to ease anyone`s else concerns.
> the integrity of your site? I do.
I think it would have affected the platform if it was the case.
But I believe it is not and you are jumping to a quick conclusions here.
There must be a fine line between domains *containing* trademarks and domains *abusing* trademarks.
First of all, you must not forget what trademarks are all about. Trademarks protect intellectual property from infringement, but it does not mean that one can not refer (or use) brands or trademarks in an eligible way.
There are cases when domain names can be immediately recognised as infringing just by the nature of the trademark adoption (a.k.a. blatant trademark uses). "One in a million" case gives a good example of such use. Nominet refers to it at http://www.nominet.org.uk/disputes/caselaw/trademarks/.
It is clear with domains of that kind that there can not be other legitimate uses. For that, DomainLore recognizes the importance of trademarks and does it best to prevent any blatant trademark infringing domains to be listed on the platform. This policy is clearly outlined in the rules.
It doesn't mean though that the mere presence of the brand/trademarked term must advance beyond common sense approach.
More often than not, it is simply too complex to decide and make one`s judgements based on the limited information available.
Do you know who has submitted this advanced bid for the domain containing trademarked keyword?
You don't know and neither do I.
Do you know what is his relation to the rights holder or what is his intended use of the domain name?
I don't know and neither do you.
What I know is that right holders often use well-known domain backordering services like Snapnames.com or Pool.com to secure domain names required. I can not see why DomainLore can not offer similar service (albeit differently, based on specifics of .uk drop catching).
Do you also realise that when trademark is used as a supplementary word, in a form of brand+generic word, it might be adopted to describe a genuine service provided and can be perfectly eligible for that fair use. (think 'iphone+repairs', 'teamxbox.com', 'directford.co.uk', 'trademarkSUCKS' domains..etc).
If you consider domain names you were referring to: samsungphones_org_uk - contains trademark but does not infringe trademark unless used inappropriately. It would constitute a perfectly legitimate domain registration for many parties, including affiliated Samsung phones re-sellers.
Look at the other one - britishgasboiler_co_uk and you can research already registered plural version - 'britishgasboilers_co_uk', which is owned and used by an affiliate of British Gas.
IP is a complex law and I am not here to be policing auction submissions based on available assumptions.
Neither you nor I have enough information to decide and be third-party arbiters to evaluate domain`s rights to exist.
Notwithstanding that, it is DomainLore policy to restrict clear cases of trademark-abusing domains.
Moreover, to avoid unnecessary concerns, domain names *containing* recognisable trademarks will not be eligible to be auctioned on DomainLore.
Advanced bids on such domains will not be policed, however, to allow independent catchers to determine themselves whether they want to catch these domain names to sell privately to the interested party.
I hope this addresses your existing concerns.
Good luck,
Denys