Domain Trademark Question - GoFuckYourself.com

Babaganoosh · 09-19-2011, 10:08 AM

Let's say, hypothetically of course, that I bought a domain that contains a trademark. For example, let's say I wanted to promote Netflix so I register something like ilovenetflix.com. Now, knowing that's a trademarked name, I contact Netflix and they give me their permission to use that domain to promote them. Since I have been given permission I build a site and do some SEO and start getting some organic traffic.

Fast forward a few years, Netflix sends me an email letting me know that I am using their trademark in my domain and they want me to transfer the domain to them immediately. I show them that they gave me their permission and they inform me their TOS has changed and they are now cracking down and I must hand over the domain immediately to remain in good standing with them (and presumably not have the domain seized).

Should Netflix be responsible for paying for the time spent building a site that I was given permission to build?

BTW, this has nothing to do with Netflix but since I have a Netflix envelope on my desk I chose them as my example.

d-null · 09-19-2011, 10:12 AM

what type of documentation did you get from them when they "gave you permission" to use their trademark to promote them?

Babaganoosh · 09-19-2011, 10:16 AM

Quote:

Originally Posted by d-null

what type of documentation did you get from them when they "gave you permission" to use their trademark to promote them?

Just an email but fortunately I still have that email.

d-null · 09-19-2011, 10:25 AM

Quote:

Originally Posted by Babaganoosh

Just an email but fortunately I still have that email.

the exact wording in that email may be part of the answer to your question, but even then their lawyers might have a different idea

woj · 09-19-2011, 10:32 AM

I would think they would kick you out of their affil program first for some bullshit unrelated reason and then it won't matter if they allowed you to use it or not...

DaddyHalbucks · 09-19-2011, 10:35 AM

Without a strongly worded contract, my guess is they can withdraw permission as easily as they can grant it.

This is not legal advice and I am not a lawyer.

DaddyHalbucks · 09-19-2011, 10:41 AM

As an addendum, my general advice would be.. don't build houses on other people's land.

Kenny B! · 09-19-2011, 10:48 AM

Keep in mind it will cost them to send this complaint to ICAAN arbitration, so offer to sell them back the domain to make up for your costs.

AdultKing · 09-19-2011, 12:04 PM

Quote:

Originally Posted by DaddyHalbucks

Without a strongly worded contract, my guess is they can withdraw permission as easily as they can grant it.

This is not legal advice and I am not a lawyer.

However this is the same advice I have had from our legal team in the past

I think that if permission is granted , unless you have a solid contract, that permission is what is known as 'fortunate use' meaning you're fortunate while you can use it but when the game changes the trademark owner will win.

AdultKing · 09-19-2011, 12:07 PM

Quote:

Originally Posted by Kenny B!

Keep in mind it will cost them to send this complaint to ICAAN arbitration, so offer to sell them back the domain to make up for your costs.

We have successfully claimed and won these costs back in court in Australia after a UDRP claim. Simple default judgement through VCAT.

CYF · 09-19-2011, 12:15 PM

Quote:

Originally Posted by Kenny B!

Keep in mind it will cost them to send this complaint to ICAAN arbitration, so offer to sell them back the domain to make up for your costs.

offering to sell a trademarked domain to the trademark holder is almost always positive proof of bad faith and a slam dunk when it comes to UDRP. Doing what you suggest is not advised.

DaddyHalbucks · 09-19-2011, 12:20 PM

Quote:

Originally Posted by AdultKing

However this is the same advice I have had from our legal team in the past

I think that if permission is granted , unless you have a solid contract, that permission is what is known as 'fortunate use' meaning you're fortunate while you can use it but when the game changes the trademark owner will win.

Correct. Trademark = property. The owner gets to determine the use of its property.

lazycash · 09-19-2011, 12:20 PM

The affiliate program may react like Dirty D did here: https://gfy.com/showthread.php?t=941614

Babaganoosh · 09-19-2011, 12:42 PM

My attorney just suggested that we try to work it out like gentlemen but if anything is said in either direction that might be construed as a threat or hostile in any way to call her and she will get involved.

Her advice was to not offer to sell them their trademarked domain but request reasonable compensation for what was put into the website that was placed on the domain.

What baffles me is that these people are acting like I care if my affiliate account with them is in good standing or not. They've said something to the effect of "give us the domain and your account will be in good standing." Like I am going to continue sending traffic to them after this.

V_RocKs · 09-19-2011, 03:05 PM

The ONLY way this can work in your favor is if we are talking about a substantial amount of money. That is the only way it would make it worth your while to fight it.

Case in point: www.webergrills.com

Back in 2000 Weber requested the domain name be transferred to them. The hardware/home improvement company using the domain successfully fought to keep the name citing their substantial investment in the branding, advertising and marketing efforts to make the domain a successful Weber grill online store. They sold Weber grills on the site. They have sold decades worth of the grills before going online.

At first Weber gave their enthusiastic support for the site. But when it did better in the search results then their own site they decided to cut out the middleman.

On May 15, 2000, the WIPO Administrative Panel unanimously rejected the Weber-Stephen Products Co. Complaint.

Source: http://www.allbusiness.com/legal/int...#ixzz1YRFiN6tW

Weber has since bought the domain for an undisclosed amount and redirected it to their own domain.

InfoGuy · 09-19-2011, 03:22 PM

Quote:

Originally Posted by Babaganoosh

Let's say, hypothetically of course, that I bought a domain that contains a trademark. For example, let's say I wanted to promote Netflix so I register something like ilovenetflix.com. Now, knowing that's a trademarked name, I contact Netflix and they give me their permission to use that domain to promote them. Since I have been given permission I build a site and do some SEO and start getting some organic traffic.

Fast forward a few years, Netflix sends me an email letting me know that I am using their trademark in my domain and they want me to transfer the domain to them immediately. I show them that they gave me their permission and they inform me their TOS has changed and they are now cracking down and I must hand over the domain immediately to remain in good standing with them (and presumably not have the domain seized).

Should Netflix be responsible for paying for the time spent building a site that I was given permission to build?

BTW, this has nothing to do with Netflix but since I have a Netflix envelope on my desk I chose them as my example.

I'm not a lawyer, but the problem as I see it, is you registered the domain first and then subsequently asked for permission to use it, instead of getting permission first.

suesheboy · 09-19-2011, 03:42 PM

Quote:

Originally Posted by DaddyHalbucks

Without a strongly worded contract, my guess is they can withdraw permission as easily as they can grant it.

This is not legal advice and I am not a lawyer.

Couldn't have said it better.

Even employee changes can screw you. As an affiliate you have zero leverage. You have no value.

suesheboy · 09-19-2011, 03:43 PM

By the way, most emails will never stand up in court. We all know how easy they are to fake out.

porno jew · 09-19-2011, 03:46 PM

just talked to my lawyer he said you should ignore it.

Diomed · 09-19-2011, 04:15 PM

I always wondered,

seems Naked.com has a trademark on it..

Is that a useless trademark? Not sure if they would have the rights to sue say.. NakedSluts.com, NakedBitches.com, imnaked.com, etc.

Babaganoosh · 09-19-2011, 04:23 PM

Quote:

Originally Posted by InfoGuy

I'm not a lawyer, but the problem as I see it, is you registered the domain first and then subsequently asked for permission to use it, instead of getting permission first.

True, but I did get permission before I spent any time developing the site. Had I not been given permission, I likely would have either given them the domain or just let it expire.

I am outranking them for a few terms and I think that's probably what this is about. It's either for the SERPs or they like the domain.

Babaganoosh · 09-19-2011, 04:25 PM

Quote:

Originally Posted by suesheboy

By the way, most emails will never stand up in court. We all know how easy they are to fake out.

Fortunately the person who gave me permission is also the person I am dealing with on this issue. He's not disputing the legitimacy of the email granting permission at all.

DBS.US · 09-19-2011, 04:47 PM

Nobody smart would let you use their trademarked name in you domain.

PornMD · 09-19-2011, 05:08 PM

I don't know this area of domain law but would agree that they are likely able to revoke rights to the use of the trademark whenever they see fit. If you didn't have any sort of contract put in place, there's not really anything you can do about it. I highly doubt you'd be entitled to anything from them, and you should definitely not try to sell them the domain. In these matters it's best not to rock the boat, as they could attempt to sue you for damages and while it would seem farfetched for that kind of case to get anywhere in court given their granting of use of trademark to you prior, you having regged the name first certainly doesn't help your case.

Either way, keep in touch with your lawyer.

InfoGuy · 09-19-2011, 05:30 PM

IIRC, similar UDRP complaints in the past have been dismissed in favor of the domain registrant, due to prior or existing business relationships. However, such decisions basically say that these types of disputes are beyond the scope of the arbitration panel and should be settled by a court.

Relentless · 09-19-2011, 05:34 PM

You do not have to be wrong to be sued. People always seem to forget that.

If it's a large company (netfix) the can sue you and the cost to them is meaningless.
Meanwhile your legal costs are likely more than it's worth to fight them.
They know all of this and can use the threat of lawsuits to get their way from 99.9% of webmasters

DBS.US · 09-19-2011, 06:35 PM

Don't spend your time doing anything "around" somebody name, website, or product.

Companies going out of business or change name all the time.

PornMD · 09-19-2011, 07:47 PM

Quote:

Originally Posted by Relentless

You do not have to be wrong to be sued. People always seem to forget that.

If it's a large company (netfix) the can sue you and the cost to them is meaningless.
Meanwhile your legal costs are likely more than it's worth to fight them.
They know all of this and can use the threat of lawsuits to get their way from 99.9% of webmasters

Yea, that's the problem with ever dealing with anything risky in a trademark sense. You can get screwed without losing.

Babaganoosh · 10-20-2011, 07:04 AM

Haha anyone want to guess which sponsor prompted this thread?

u-Bob · 10-20-2011, 07:12 AM

Quote:

Originally Posted by Babaganoosh

Haha anyone want to guess which sponsor prompted this thread?

lightflesh?

NALEM · 10-20-2011, 10:09 AM

Quote:

Originally Posted by Babaganoosh

Let's say, hypothetically of course, that I bought a domain that contains a trademark. For example, let's say I wanted to promote Netflix so I register something like ilovenetflix.com. Now, knowing that's a trademarked name, I contact Netflix and they give me their permission to use that domain to promote them. Since I have been given permission I build a site and do some SEO and start getting some organic traffic.

Fast forward a few years, Netflix sends me an email letting me know that I am using their trademark in my domain and they want me to transfer the domain to them immediately. I show them that they gave me their permission and they inform me their TOS has changed and they are now cracking down and I must hand over the domain immediately to remain in good standing with them (and presumably not have the domain seized).

Should Netflix be responsible for paying for the time spent building a site that I was given permission to build?

BTW, this has nothing to do with Netflix but since I have a Netflix envelope on my desk I chose them as my example.

Contact me off the board at [email protected] for some general advice. If the trademark holder is on member of this community I would recomend you dont make any firther comments. Good luck.

Babaganoosh · 10-20-2011, 10:11 AM

Quote:

Originally Posted by NALEM

Contact me off the board at [email protected] for some general advice. If the trademark holder is on member of this community I would recomend you dont make any firther comments. Good luck.

I have some general advice for you; eat shit and die.

signupdamnit · 10-20-2011, 10:23 AM

It's a legal question. To be sure you need to have a lawyer look at the specific case and circumstances because it is entirely possible that technicalities can change around the answer.

In practice though most affiliates are easily bullied and they seldom have any power. They are looking to get money owed to them by the sponsor/company or they are afraid of a legal battle or threat. Personally if a sponsor did this to me I would just assume that eventually they are going to find another way to screw me out of the money because they are showing that they see me as a liability and not an asset.

I pointed it out in FNCash thread but there are potential issues which may not make the sponsor's claim to the domain so clear cut:

Quote:

3. Failure to enforce your rights against infringers. If you continually allow known infringers to violate your trademark rights, you effectively give up the right to challenge their use. While this might not result in cancellation of your registration, you are undermining your trademark by wilfully adopting a very narrow scope of protection.

http://indianaintellectualproperty.w...demark-rights/

Quote:

Failure to take action against a trade mark infringement may bar action at later date
One of the defences to trade mark infringement under the Trade Mark Act 1994 is where a trade mark owner has knowledge of the use of a potentially conflicting mark and has failed to take action for a period of more than five years after discovering the same. In such cases the trade mark owner will be taken to have effectively given up his right to challenge this use.

http://www.lawdit.co.uk/reading_room...ter%20date.htm

Quote:

Wrongful or groundless threats of infringement

Various jurisdictions have laws which are designed to prevent trademark owners from making wrongful threats of trademark infringement action against other parties. These laws are intended to prevent large or powerful companies from intimidating or harassing smaller companies.

Where one party makes a threat to sue another for trademark infringement, but does not have a genuine basis or intention to carry out that threat, or does not carry out the threat at all within a certain period, the threat may itself become a basis for legal action.[18] In this situation, the party receiving such a threat may seek from the Court a declaratory judgment; also known as a declaratory ruling.

http://en.wikipedia.org/wiki/Trademark

Companies tend to think they can get away with just about anything but often the reality is the main reason they are able to get away with it is because few choose to fight them hard on their actions. It's just like how technically shaving is usually fraud and breach of contract. In theory under certain circumstances and with a good enough case it could lead to criminal penalties.

If one ever does find themselves in this situation be very careful with what you say to the sponsor/company as your words could come back to haunt you. Remember that the company probably has a legal team and they may be trying to get you to say or do certain things in order to improve their own legal position. Ideally you need a lawyer to represent you and your interests. If not you need to be very savvy and read all you can on the laws.

epitome · 10-20-2011, 11:37 AM

Again, the fair thing for them to do would be to take ownership but leave it pointing to your server or something similar.

They can honor their agreement with their business partners while still protecting their brand. The customer still has to order the product from their site.

They don't have to be greedy assholes when there is a solid middle ground that keeps everybody happy and them protected.

At this point there is no question they allowed and even encouraged this for years.

NetHorse · 10-20-2011, 12:23 PM

It depends on what a judge rules, but my opinion is that you would be at their mercy. Signed affidavits could sway a judge, (an email less likely, they tend to not hold up in court and they could always argue that the person you corresponded with wasn't in the position to give you permission); but trademark infringement is trademark infringement regardless of the premise you committed it. So even if a judge doesn't rule in favor of them getting compensatory damages you would likely still lose the domain name assuming you registered it after they trademarked the name.

raymor · 10-20-2011, 12:51 PM

Does the email from them specifically mention the affiliate program?

This is an estoppel case. You have several grounds for estoppel, including promissory. Because they allowed you to use trademark for some time and you made an investment in reliance on that permission, they can't now change their mind and take back that permission to use their trademark in the way described in the email.

HOWEVER, you also agreed to their affiliate agreement, which probably gives them the right to terminate your affiliate account without cause. So they've given up some rights under trademark law, but probably not given up their general right to stop doing business with any affiliate at any time.

So the question then becomes "does their email give permission to use their trademark ONLY for the affiliate program, or do you have the right to use it for some other purpose?" Obviously to answer that question one had to look at the exact wording of the email exchange.

leg4 · 10-20-2011, 01:21 PM

Quote:

Originally Posted by suesheboy

Couldn't have said it better.

Even employee changes can screw you. As an affiliate you have zero leverage. You have no value.

Even employee changes can screw you. As an affiliate you have zero leverage. You have no value.
Even employee changes can screw you. As an affiliate you have zero leverage. You have no value.
Even employee changes can screw you. As an affiliate you have zero leverage. You have no value.
Even employee changes can screw you. As an affiliate you have zero leverage. You have no value.

Exactly.

Barry-xlovecam · 10-20-2011, 01:55 PM

Did you receive a license to use their trademark and pay for the license?

That's concrete proof -- anything less is a legal pissing contest.

If it's worth spending a few $1,000.00 over to you on lawyer's fees -- call their bluff -- WIPO arbitration. Better to reach some written agreement if possible.

09-19-2011, 10:08 AM	#1
Babaganoosh ♥♥♥ Likes Hugs ♥♥♥ Industry Role: Join Date: Nov 2001 Location: /home Posts: 15,841	Domain Trademark Question Let's say, hypothetically of course, that I bought a domain that contains a trademark. For example, let's say I wanted to promote Netflix so I register something like ilovenetflix.com. Now, knowing that's a trademarked name, I contact Netflix and they give me their permission to use that domain to promote them. Since I have been given permission I build a site and do some SEO and start getting some organic traffic. Fast forward a few years, Netflix sends me an email letting me know that I am using their trademark in my domain and they want me to transfer the domain to them immediately. I show them that they gave me their permission and they inform me their TOS has changed and they are now cracking down and I must hand over the domain immediately to remain in good standing with them (and presumably not have the domain seized). Should Netflix be responsible for paying for the time spent building a site that I was given permission to build? BTW, this has nothing to do with Netflix but since I have a Netflix envelope on my desk I chose them as my example.

09-19-2011, 10:32 AM	#5
woj <&(©¿©)&> Industry Role: Join Date: Jul 2002 Location: Chicago Posts: 47,882	I would think they would kick you out of their affil program first for some bullshit unrelated reason and then it won't matter if they allowed you to use it or not... __________________ Custom Software Development, email: woj#at#wojfun#.#com to discuss details or skype: wojl2000 or gchat: wojfun or telegram: wojl2000 Affiliate program tools: Hosted Galleries Manager Banner Manager Video Manager Wordpress Affiliate Plugin Pic/Movie of the Day Fansign Generator Zip Manager

09-19-2011, 10:35 AM	#6
DaddyHalbucks A freakin' legend! Industry Role: Join Date: Feb 2004 Location: Las Vegas, Nevada USA Posts: 18,975	Without a strongly worded contract, my guess is they can withdraw permission as easily as they can grant it. This is not legal advice and I am not a lawyer. __________________ Boner Money

09-19-2011, 10:41 AM	#7
DaddyHalbucks A freakin' legend! Industry Role: Join Date: Feb 2004 Location: Las Vegas, Nevada USA Posts: 18,975	As an addendum, my general advice would be.. don't build houses on other people's land. __________________ Boner Money

09-19-2011, 10:48 AM	#8
Kenny B! Confirmed Abuser Industry Role: Join Date: Jun 2003 Location: Montreal Posts: 5,716	Keep in mind it will cost them to send this complaint to ICAAN arbitration, so offer to sell them back the domain to make up for your costs. __________________ Kenny -at- YourPaysitePartner.com Skype: kennyb514 Do business with us: Your Paysite Partner Kenny's Pennies Sticky Dollars Radical Cash Indie Bucks Stand Ahead Read My Ambush Interview Here

09-19-2011, 10:12 AM	#2
d-null . . . Industry Role: Join Date: Apr 2007 Location: NY Posts: 13,724	what type of documentation did you get from them when they "gave you permission" to use their trademark to promote them?

09-19-2011, 12:20 PM	#13
lazycash Troll Patrol Industry Role: Join Date: Aug 2002 Location: Local Socal Posts: 15,214	The affiliate program may react like Dirty D did here: https://gfy.com/showthread.php?t=941614 __________________ "WTF, on google you can find the answer to every question in human history, EXCEPT how to convert cams.. Its crazy..." VenusBlogger

09-19-2011, 12:42 PM	#14
Babaganoosh ♥♥♥ Likes Hugs ♥♥♥ Industry Role: Join Date: Nov 2001 Location: /home Posts: 15,841	My attorney just suggested that we try to work it out like gentlemen but if anything is said in either direction that might be construed as a threat or hostile in any way to call her and she will get involved. Her advice was to not offer to sell them their trademarked domain but request reasonable compensation for what was put into the website that was placed on the domain. What baffles me is that these people are acting like I care if my affiliate account with them is in good standing or not. They've said something to the effect of "give us the domain and your account will be in good standing." Like I am going to continue sending traffic to them after this.

09-19-2011, 03:05 PM	#15
V_RocKs Damn Right I Kiss Ass! Industry Role: Join Date: Dec 2003 Location: Cowtown, USA Posts: 32,391	The ONLY way this can work in your favor is if we are talking about a substantial amount of money. That is the only way it would make it worth your while to fight it. Case in point: www.webergrills.com Back in 2000 Weber requested the domain name be transferred to them. The hardware/home improvement company using the domain successfully fought to keep the name citing their substantial investment in the branding, advertising and marketing efforts to make the domain a successful Weber grill online store. They sold Weber grills on the site. They have sold decades worth of the grills before going online. At first Weber gave their enthusiastic support for the site. But when it did better in the search results then their own site they decided to cut out the middleman. On May 15, 2000, the WIPO Administrative Panel unanimously rejected the Weber-Stephen Products Co. Complaint. Source: http://www.allbusiness.com/legal/int...#ixzz1YRFiN6tW Weber has since bought the domain for an undisclosed amount and redirected it to their own domain.

09-19-2011, 03:43 PM	#18
suesheboy Confirmed User Industry Role: Join Date: Nov 2002 Location: FL - TN/NC Posts: 5,211	By the way, most emails will never stand up in court. We all know how easy they are to fake out. __________________ Adult Web Site Domain Names For Sale Adult Sex Toy Domain Names For Sale Tantric Delights, Sex Toys Blog, Tantric Sex Toys

09-19-2011, 03:46 PM	#19
porno jew Too lazy to set a custom title Industry Role: Join Date: Nov 2006 Posts: 10,166	just talked to my lawyer he said you should ignore it.

09-19-2011, 04:15 PM	#20
Diomed Converting like it's 1999 Industry Role: Join Date: Jan 2009 Location: The South Posts: 6,165	I always wondered, seems Naked.com has a trademark on it.. Is that a useless trademark? Not sure if they would have the rights to sue say.. NakedSluts.com, NakedBitches.com, imnaked.com, etc. __________________ 10 years of experience in: CHAT SALES - PAID TRAFFIC - CONVERSION - CREATIVES - CONSULTATION

09-19-2011, 04:47 PM	#23
DBS.US Geo Cities Industry Role: Join Date: Aug 2003 Location: North Captiva Island, Florida USA Posts: 11,828	Nobody smart would let you use their trademarked name in you domain. __________________ Make a Free Chaturbate White Label site in 34 minutes and be making money tonight

09-19-2011, 05:08 PM	#24
PornMD Mainstream Businessman Industry Role: Join Date: Jan 2007 Location: San Diego Posts: 9,291	I don't know this area of domain law but would agree that they are likely able to revoke rights to the use of the trademark whenever they see fit. If you didn't have any sort of contract put in place, there's not really anything you can do about it. I highly doubt you'd be entitled to anything from them, and you should definitely not try to sell them the domain. In these matters it's best not to rock the boat, as they could attempt to sue you for damages and while it would seem farfetched for that kind of case to get anywhere in court given their granting of use of trademark to you prior, you having regged the name first certainly doesn't help your case. Either way, keep in touch with your lawyer. __________________ Want to crush it in mainstream with Facebook ads? Hit me up.

09-19-2011, 05:30 PM	#25
InfoGuy 80/20 Rule Industry Role: Join Date: Apr 2010 Location: Los Angeles Posts: 3,051	IIRC, similar UDRP complaints in the past have been dismissed in favor of the domain registrant, due to prior or existing business relationships. However, such decisions basically say that these types of disputes are beyond the scope of the arbitration panel and should be settled by a court. __________________ Support American Heroes \| How Bad is My Batch? \| Vaccine Deaths & Adverse Reactions \| Free Speech Coalition \| <WARNING> ePayService / Guerra Capital, INC / MTACC payments \| Flirt4Free Fucks their Affiliates \| Don't do business with piece of shit Andy Alvarez from Webmaster Central / VR3000, who said: "If it was up to me, they would have shot all 30,000 of those country loving shitheads"

09-19-2011, 05:34 PM	#26
Relentless www.EngineFood.com Industry Role: Join Date: Aug 2006 Posts: 5,698	You do not have to be wrong to be sued. People always seem to forget that. If it's a large company (netfix) the can sue you and the cost to them is meaningless. Meanwhile your legal costs are likely more than it's worth to fight them. They know all of this and can use the threat of lawsuits to get their way from 99.9% of webmasters __________________ Website Secure \| Engine Food ICQ# 266-942-896

09-19-2011, 06:35 PM	#27
DBS.US Geo Cities Industry Role: Join Date: Aug 2003 Location: North Captiva Island, Florida USA Posts: 11,828	Don't spend your time doing anything "around" somebody name, website, or product. Companies going out of business or change name all the time. __________________ Make a Free Chaturbate White Label site in 34 minutes and be making money tonight

10-20-2011, 07:04 AM	#29
Babaganoosh ♥♥♥ Likes Hugs ♥♥♥ Industry Role: Join Date: Nov 2001 Location: /home Posts: 15,841	Haha anyone want to guess which sponsor prompted this thread? __________________ I like pie.

10-20-2011, 11:37 AM	#34
epitome So Fucking Lame Industry Role: Join Date: Jun 2009 Location: St. Petersburg, FL Posts: 12,158	Again, the fair thing for them to do would be to take ownership but leave it pointing to your server or something similar. They can honor their agreement with their business partners while still protecting their brand. The customer still has to order the product from their site. They don't have to be greedy assholes when there is a solid middle ground that keeps everybody happy and them protected. At this point there is no question they allowed and even encouraged this for years.

10-20-2011, 12:23 PM	#35
NetHorse Confirmed User Industry Role: Join Date: Dec 2006 Location: Chicago Posts: 3,526	It depends on what a judge rules, but my opinion is that you would be at their mercy. Signed affidavits could sway a judge, (an email less likely, they tend to not hold up in court and they could always argue that the person you corresponded with wasn't in the position to give you permission); but trademark infringement is trademark infringement regardless of the premise you committed it. So even if a judge doesn't rule in favor of them getting compensatory damages you would likely still lose the domain name assuming you registered it after they trademarked the name. __________________ ┌∩┐(◣_◢)┌∩┐ ICQ # 427013273 Last edited by NetHorse; 10-20-2011 at 12:27 PM..

10-20-2011, 12:51 PM	#36
raymor Confirmed User Join Date: Oct 2002 Posts: 3,745	Does the email from them specifically mention the affiliate program? This is an estoppel case. You have several grounds for estoppel, including promissory. Because they allowed you to use trademark for some time and you made an investment in reliance on that permission, they can't now change their mind and take back that permission to use their trademark in the way described in the email. HOWEVER, you also agreed to their affiliate agreement, which probably gives them the right to terminate your affiliate account without cause. So they've given up some rights under trademark law, but probably not given up their general right to stop doing business with any affiliate at any time. So the question then becomes "does their email give permission to use their trademark ONLY for the affiliate program, or do you have the right to use it for some other purpose?" Obviously to answer that question one had to look at the exact wording of the email exchange. __________________ For historical display only. This information is not current: support@bettercgi.com ICQ 7208627 Strongbox - The next generation in site security Throttlebox - The next generation in bandwidth control Clonebox - Backup and disaster recovery on steroids

10-20-2011, 01:55 PM	#38
Barry-xlovecam It's 42 Industry Role: Join Date: Jun 2010 Location: Global Posts: 18,083	Did you receive a license to use their trademark and pay for the license? That's concrete proof -- anything less is a legal pissing contest. If it's worth spending a few $1,000.00 over to you on lawyer's fees -- call their bluff -- WIPO arbitration. Better to reach some written agreement if possible.