Panel decision is good news for domain investors.
Complainants in UDRP cases often point to a domain owner’s willingness to sell and a price quote as proof of bad faith. But sometimes a broker responds to a domain name inquiry on behalf of the domain owner without consulting with the owner.
A recent ruling for MegaShoes.com brings good clarity to the issue.
The complainant had a weak case in general, but one of its claims was that the domain owner’s agent responded to a domain inquiry suggesting that $4500 would be a reasonable offer. The domain owner didn’t make a $4500 offer to the complainant; instead the broker merely suggested it as a good offering price.
Somewhat surprisingly the panel understood this distinction:
In the opinion of the Panel, the so-called offer to sell is nothing of the sort. It is not uncommon for a domain name site of the type operated by Respondent to be prefaced by a banner advertisement offering the domain name in question for sale. Anyone replying to this is automatically directed to a broker, such as in this case DomainDirect Inc., who will often reply specifying a price without referring the offer to the owner of the domain name. It would seem, from Respondent’s Additional Submission, when it denies any knowledge of any offer to purchase, that this is exactly what occurred on this occasion. The Panel therefore dismisses Complainant’s assertion that Respondent attempted to sell it the domain name.
This is a good case for domain investors to point to when this issue arises in the future.
The respondent was represented by domain attorney John Berryhill.
The Big Cheese says
I’d like to pre-announce the 4th-quarter, 2011 launch of Squatvestor.com (SVC). SVC will publish tongue-in-cheek commentary on domain-industry news and trends and will eventually offer a moderated forum, as well as domain registration services and auctions. It is our goal to become regarded as “The Onion” of the domaining industry, while at the same time providing factual coverage and commentary on those subject held so near and dear to the average domainer’s heart.
Let’s face it, none of you commoners reg’ing 3Ddogsqueeze.co are going to make the kind of money the guys who were smucky (smart ‘n lucky) back in the mid-90’s have already made. The money is-a-flowin’ to the registrars and the holders of “I-Reg’d-This-Zillion$-Keyword-In-1995.com and now I’m going to sell it for 7-figures to this multinational corporation that’s paying with taxpayer funded bailout money”, but not to you – unless the occasional $1,000 turns you on. So while you’re dreaming of that pie-in-the-sky payday, we’ll do our best to inform you and make you laugh.
We’ll entertain some of you and we’ll p*ss some of you off, but whichever it is, we’ll make sure we have fun doing so.
– TBC
jorge says
@TBC: Disappointed there is no real site there 🙁
Michael says
So respond to every inquiry that comes in with a fake name, and if you get UDRP’ed say that it was your broker and not you? Can’t say I’m upset with the decision, but I don’t get it. If you have a broker, you were obviously trying to sell the domain, so why does it matter who quotes the price?
Rich says
What i dont get,first TM expired in 2003 ,in 2004 the domain was registred, in 2010 TM was registred.Why would the complaint have a case any way? Can someone explait that to me?
Can a domain be taken in this conditions?
stewart says
okay now let me see if I have this correctly? If I have a car for sale on a car lot, then it is not really for sale?
Is that what I understand about this matter, that something was not for sale? Unless of course it was for sale, huh?
Jeff Schneider says
Hello Andrew,
If you give the power of a sales decision to a registrar or some other entity, you are at the mercy of their judgement. Something to consider very seriously, because the one hand doesnt know what the other hand is saying or doing. This luckily went in favor of the domainer with the help of an attorney. What if the domainer did not have an attorney, RISKY BUSINESS.
This is why Rick Schwartz and many others handle the sales themselves.
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
John Berryhill says
Jeff, your point is well taken, and relates to what Michael asked above.
The point here is that what is relevant to the UDRP is an intention of registering a domain name with the “primary purpose of selling to to the Complainant or a competitor”.
What’s been happening, across the board, is that people have registered and been using domain names for years and years, and then someone in the Complainant’s organization hits up a broker, such as Sedo, Marksmen, Buydomains, and so forth, to communicate an offer or obtain a quote. From the perspective of the domain registrant, it’s just another broker inquiring for a quote which, if you have a fair number of domain names, is not that remarkable, uncommon, or memorable.
The broker, though, some of whom also buy and sell their own names, doesn’t communicate anything about whether it is for their portfolio, an end user, another domain investor, and so on.
Weeks or months go by, and then up pops a UDRP complaint that says, “They were trying to sell the domain name.”
The relevant point under the UDRP is “did they register the domain name with the ‘primary purpose’ of trying to sell it TO YOU?”
So, it’s kind of irritating when UDRP complainants do that sort of thing, knowing full well the domain registrant was responding to a blind offer or quote request, without the foggiest idea who was ultimately trying to buy the domain name. That scenario, particularly when the domain name has been monetized for years, doesn’t really fit the argument – “this guy registered the domain name primarily because he wanted to sell it to me.”
Now, on the other hand, Jeff is right that a lot – meaning A LOT – of the registrar/brokers that field inquiries do not put a lot of thought into the kinds of things you need to look out for when you receive what appears to be a purchase inquiry. While there are serious purchasers who do not want to disclose their identity because they believe it might influence the price, some of these things are just a set up for a manufactured cybersquatting claim. That’s why it is a good idea to know who is asking. But, by the same token, a “purchaser” like the one in this dispute can’t turn around and say that the domain registrant was targeting them, because the domain registrant had no idea who was seeking to buy the name in the first place.
John Berryhill says
Interestingly, I had thought this would come up in a previous recent dispute, but the Panel decided not to discuss that aspect of it.
What had happened was that, during the dispute itself, a self-styled “fixer” who happened to know someone in the Complainant’s organization, and didn’t even know about the pending dispute, offered his “services” to the Complainant to buy the name. He even told the Complainant a price that he thought he would be able to negotiate with the domain registrant.
We had absolutely no idea this person was doing those things, and he had no authority to do it at all. So when it popped up in a Supplement, as you might imagine, there were some exchanges of choice words.
The proceeding was decided favorably, but it is pretty surprising to be thrust into the position of having to prove that some guy thought he could set up a deal and obtain a commission without even contacting the owner of the thing in question. I can’t blame people for wanting to make a buck here and there, but some of these so-called “brokers” can put you into sticky situations like that.