RE: Re: OT: Domain Names LEGAL Stuff

["Mark Harrison" <Mark.Harrison@xxxxxxx>]

Wayne,

You have, in your message below, claimed that my employer has, through my m= essage, purported to provide legal advice on Domain Name dispute resolution= .

I must, restate for the record, that the opinions I expressed were mine per= sonally, based on 13 years Internet experience, 10 of those as a corporate = IT Manager.

I felt it appropriate, however, in the context of a genuine legal problem f= aced by a member of the group to fully clarify where my experience lay, and= what I was, and was not, qualified to comment on.

There ARE some good lawyers on this group. They HAVEN'T gotten involved in = this thread, presumably because they can only give legal advice in situatio= ns covered by their professional indemnity insurance.

I am deeply concerned that several people in this group are giving advice t= o someone ACTUALLY faced with the prospect of legal action, without having = commercial or legal knowledge of the subject. I realise that some of the su= ggestions made were flippant, but, had they been followed, could potentiall= y have led to an escalation of legal action and significant costs to the pe= rson in question.

Mark Harrison
Writing as an individual
The opinions contained are not those of Kingfisher plc or its subsidiaries<= BR>


-----Original Message-----
From: Wayne Kerr [mailto:waynekerr169@xxxxxxx]
Sent: 8 August 2002 22:07
To: ukha_d@xxxxxxx Subject: Re: [ukha_d] Re: OT: Domain Names LEGAL Stuff


>From: "mark_harrison_uk1" <Mark.Harrison@xxxxxxx&g= t;

I don't know the domain name involved but my opinions expressed below = are
based on the assumption that the domain name is not a registered trademark =
of the company concerned.

>give legal advice. However, I am a senior manager with overall
>responsibility for Domain Name registrations for a FTSE 100 company
>with significant web presences Europe-wide. The following, however,
>is my personal opinion, not that of my employer.

Make your mind up. If you have overall responsibility for the subject in question, your opinion is effectively that of your employer.

>Personally, I think that =A3100 + transfer costs is fair, and my advice=
>would be to take it. If the company is a large, household name, then >they might go to =A3500 + transfer costs, but are very unlikely to go >any higher.

I personally think that =A3100, from the initial =A350, plus transfer fees = is a
poor offer for companies of almost any size. An appropriate domain name is =
an increasingly valuable business asset. Just look at how much domain names=
like news.com, slate.com and linux.com changed hands and you'll see that th= e
sum offered is simply a bad joke. Even some of the new .tv names cost much =
more than the sum offered. They could have added the money that they have <= BR> spent on solicitors to the offer to make it more attractive. They could at =
least ask what sum the person has in mind. It could be =A3101 before they <= BR> know.

>I feel that, actually, the company has acted reasonably in making you >the initial offer. The fact that they have threated legal action has >happened only AFTER you have refused to consider this. However, the

The company, from the sound of it, acted in an aggressive manner. Two
token-sum offers and immediately followed by strong-arm tactics on an
individual.  They are obviously hoping that he would be scared by
official-looking papers into giving up his legally obtained domain name.
>As I see it as a laymam, there are a number of issues here. The key
>issue is that the UK legal system now very much frowns upon
>Cybersquatting - the deliberate registration of someone elses trading >name with no intent to do anything other than sell on the domain name.<= BR>
Whilst it is true about the hardening attitude of the courts towards
cybersquatting, there is no evidence of it here. The company concerned has =
not been approached, I assume, for the possible sale of the domain name for=
any amount.

>3: The fact that the names are .coms rather than .co.uks raises the
>question of whether the UK courts would have any jurisdiction. You

ICANN and WIPO usually arbitrate on domain name disputes.

>could argue that .com is, according the the standard, intended for
>use by US Companies, and that the ONLY basis for challenging a
>registration is that a company has registered a FEDERAL (not State)
>trademark as the contested name, and that US courts would have
>jurisdiction.

That was how .com was originally set up for but it is a recognised
international domain suffix now. Country specific suffixes are for regional=
use. e.g. .us, .uk, .de.

>4: What do you intend doing with the domains? If you haven't used
>them for the last 18 months, and demonstrably had no intention of
>doing so AND refused a good faith offer, then there IS a chance that >the courts could find in their favour, and you'd be stuffed. The fact
And that chance is very slim indeed. Even Network Solutions, the original <= BR> sole registrar for .com suffix, offer "domain parking" facilities= to negate
the need to have a real website.

>5: Do THEY have the name registered as a UK trademark? If not, then I >don't think they have a leg to stand on unless you're passing off

Absolutely. If the name concerned is a registered trademark of the company =
and the registration of the domain name is subsequent to the trademark
registration, the company concerned would have a strong case.

Wayne


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