Second domain arbitration loss for financial media company today.

Earlier today Domain Name Wire wrote about financial media company Bloomberg losing a domain name arbitration case for BloombergRealty.com. Apparently today isn’t a good day for financial media companies and domain names: Dow Jones just found itself on the losing end of a case for Marketwatch.net.

Dow Jones runs the popular Marketwatch.com web site, which it launched in 1997. About a month after it launched the site, Marketwatch.net was registered by the respondent in this case. The site has never really been developed, although it did include a news story feed.

The panel ruled that the domain name was not registered in bad faith because Marketwatch would have to show a “substantial degree of prescience in December 1999″ of the Marketwatch.com web site to have trademark rights at that time. When Marketwatch tried to get a trademark on the term in 2002, the U.S. Patent and Trademark Office originally rejected the application on the grounds that it was descriptive and did not have secondary meaning. It was later approved with a first use date in 1997, but the panel inferred that the USPTO’s initial doubt makes it unlikely the web site was very popular in December of 1999.

However, the panel did note that the domain could still be used in a way that infringes Dow Jones trademark. It just wouldn’t be a matter under UDRP:

Decisions under the Policy are directed to the issue of abusive domain name registration and use. They are not directed to issues of trademark or service mark infringement. Without prejudice to the legal character of Respondent’s future conduct, that the Panel decides Respondent did not register the disputed domain name in bad faith in 1997 does not provide instruction regarding whether Respondent may now or in the future infringe on a service mark owned by Complainant. These are distinct legal issues. It is possible to register a domain name in the absence of bad faith, yet subsequently infringe a third party trademark or service mark.

Media giant loses case against small town real estate agent.

Financial media company Bloomberg Finance has lost a domain name dispute with a small town real estate agent over the domain BloombergRealty.com.

Bloomberg filed a case with National Arbitration Forum, arguing that the domain name BloombergRealty.com violated the media company’s trademark. The domain’s owner is Nancy Shulman, a real estate agent whose married surname was Bloomberg.

Bloomberg Finance failed on all three elements it must prove under the Uniform Dispute Resolution Policy. The case was doomed right off the bat when the arbitrator found that BloombergRealty.com was not confusingly similar to the mark Bloomberg.

While finding that the domain wasn’t confusingly similar, Arbitrator Nelson A. Diaz wrote:

The Panel concludes that Complainant has not satisfied Policy 4(a)(i) because the disputed domain name is not confusingly similar to the mark; therefore, the Panel declines to analyze the other two elements of the Policy.

But he then went on to analyze the other two elements of the policy, in which he also found in favor of Shulman. After all, her former last name and kids’ names are Bloomberg, establishing some rights to the name. She also has operated a web site at the domain name to promote her real estate business.

Marchex takes a big hit from product change at Yahoo.

Back in August I wrote about potential exposure Marchex has to the Yahoo-Microsoft search deal, particularly around Yahoo’s paid inclusion service. Marchex grossed about $2 million from the product in the second quarter of this year, but the product’s future was up in the air with the search deal.

Now that Yahoo has announced the end of paid inclusion at the end of the year, look for Marchex’s revenue and earnings to take a hit.

Research firm Benchmark is lowering its 2010 revenue estimate for Marchex by $10 million due to the product cancellation. Benchmark questions Marchex’s sustainability.

The product was low margin for Marchex, but was a key component of packages it sold to small businesses.
Shares of Marchex are up 22 cents to $4.97 in early trading today.

[Disclosure: I own shares in a number of domain name stocks, including Marchex.]

DDOS to blame for problems during auction yesterday.

Sedo’s outage during the .de domain name auction yesterday was not due to intense bidding activity, but was actually a distributed denial of service (DDOS) attack, reports the company.

In a statement released today, Sedo wrote:

Due to a malicious attempt to disrupt our services, Sedo suffered from two different distributed denial of service (DDOS) attacks which temporarily caused the Sedo and GreatDomains.com websites to be slow or irresponsive between 17:55 and 20:15 CET on October, 22nd 2009 (11:55 and 2:15 PM EDT). Together with its protection provider, Sedo successfully fought both attacks and our websites are again fully operational. While the GreatDomains auction has concluded, to provide equal opportunities for all parties interested of the 1, 2 & 3-Character .de Pre-Auction, Sedo has extended the auction and attempted to contact and notify all bidders of the extended schedule.

Yesterday Sedo’s message on its web site during the outage and in tweets suggested that the downtime was due to intense bidding activity for .de domain names. Although bidding was indeed intense, there appears to have been more at play.

TV.de leads .de domain name pre-auction.

When .de registry DENIC starts releasing previously unavailable domain names tomorrow, you can bet a lot of Sedo’s partner registrars will be hammering the registry for TV.de.

A “pre-auction” for TV.de closed at 279,499 EUR, which is about $419,000 USD at today’s exchange rates.

The auction is still ongoing as I write this (thanks to Sedo’s web site failing under the bidding activity), but only one character .de domain names remain open for bidding. And, in what may be a lesson to other registries planning to release one character domain names, the one character domains aren’t selling for as much as many of the two character domains.

This morning I started tracking the top couple dozen domains in terms of current bid price. They’re below, with the first number in Euros and the second in US dollars. I suspect bidding would have gone even higher had the domains been guaranteed to the winner; but right now bidders are counting on Sedo to acquire the domains for them.

(unofficial results)

tv.de 279,499 $419,249
pc.de 158,700 $238,050
com.de 135,623 $203,435
bad.de 52,000 $78,000
net.de 44,111 $66,167
co.de 41,000 $61,500
öl.de 40,000 $60,000
it.de 36,100 $54,150
hp.de 31,000 $46,500
iq.de 31,000 $46,500
hm.de 30,500 $45,750
pr.de 30,000 $45,000
123.de 28,800 $43,200
dm.de 27,000 $40,500
24.de 26,100 $39,150
los.de 24,500 $36,750
bar.de 22,500 $33,750
ok.de 21,956 $32,934
dj.de 20,600 $30,900
ey.de 20,500 $30,750
tm.de 13,500 $20,250
888.de 12,100 $18,150
030.de 10,099 $15,149
666.de 10,000 $15,000