Haunted house owner must transfer domain name to competitor.
The owner of screams.com has lost his domain name thanks to a ruling by a National Arbitration Forum panelist.
The owner of Cutting Edge Haunted House in Fort Worth, Texas registered Screams.com all the way back in 1997. The complainant has operated the Screams Halloween Theme Park, located in nearby Waxahachie, Texas, since 1996.
Even though “screams” is generic, I can certainly understand how the complainant believes the domain name was registered in bad faith to directly steal traffic from it.
My problem with the case is the length of time that has lapsed between when the domain name was registered and the case filed. In fact, the complainant says it sent notices to the respondent back in 1999. So it was clearly aware of the registration. Was it not confident in its rights to the domain back then to pursue it further?
Hi Andrew – I’m not sure you can say that “Screams” is necessarily generic as a brand of a theme park.
For example, “MovieWatcher” is a trademarked brand of a theater affiliate program.
Definitely a wild coincidence at best how the domain was registered literally the day after the TM was published for opposition. NAF should have deferred this one to real courts as being outside the scope. This one was a bit too close to call “blatant” bad faith as per the policy IMHO.
I wonder if Cutting Edge Haunted House would prevail, and overturn the NAF decision, if it filed in court.
A Laches argument that ‘Screams Halloween’ lost its rights by waiting 14 years clearly doesn’t work in a UDRP setting, but it may work in a US court.
I saw this decision this morning and it really got my attention. It is simply crazy to me that the UDRP has any right to take away and force the transfer of a domain, let alone one that I feel is a true generic term, after 14 years.
It is clear that the only way to fight back is to ensure that you have your domains in a Jurisdiction in which you can either represent yourself/your shell company in Court and in a Jurisdiction that will mean that it will take years for a decision (such as for only an example the “italian torpedo” .Look it up on Google and you will get the idea). I had a trade mark for one domain and yet they still took it from me. It is going through the Courts now. I hope that this “screams” guy goes to Court.
At least now Generic domain owners will need to think about how domains are used in the future. Redirects of great names is a waste of a domain.They should used in a useful manner with actual development.
@ccboyii – So is “Staples” generic for an office supply store?
The issue is that the complainant waited 14 years to pursue a dispute, so perhaps the respondent is entitled to relief on that point.
However, the argument that “Screams” is generic for a scary theme park is not reasonable.
I think the thing that is most relevant here is that the guy registered this name, according to a previous poster, “literally the day after the TM was published”. If this is true, then you don’t have to be Einstein to realise that the registrant read the TM notice and saw an opportunity in registering the domain. Also, as stated above, the registrant resides in Texas, “nearby” to where the Screams Halloween Theme Park had been operating for three years prior to him registering the domain name.
To my way of thinking, this is the very essence of cybersquatting – where you register a domain in order to benefit from an existing business. I personally don’t think the fact the complainant waited 14 years to take the matter to the tribunal is against the complainant. After all, letters were sent to the defendent in 1999, so there is a trail of the complainant being active in his opposition.
I think the bottom line here is an ethical one – the guy registered the domain knowing full well that a major fun park of the same name was operating nearly, and that a TM application was pending.
This is the type of cybersquatting that makes it hard for all the people who have genuine generic domain nams registered.
A concern of mine is that someone will send you a C&D and then let it go for a decade before raising the issue again.
In this case it’s not a huge deal since the guy was just forwarding it. But let’s say the circumstances were different. A company send you a c&d on a domain a decade ago. In the interim you develop it or create plans for it assuming you won’t be bothered again. Then bam, you’re hit with a UDRP or ACPA a decade later.
@John Howard. Let us not forget that there are rules of business. Take for example Trade Marks. Trade Marks have thousands of different classes and are restricted to geographic regions . Clearly the way trade marks are structured shows that no one, not even the first to use “a” name, is entitled to or can expect to have a total monopoly either by class or territory, and yet many of these complainants seem to be granted such by an “Expert” with no restrictions.
As I say, I have a trade mark and yet still they took the domain,something I am fighting now in Court.
@Andrew Alleman. Why is it show of bad faith to forward a good domain name to another of your websites that is related to that domain name?
I had a production company back in the 90’s. The name of the company was clear, in use for at least seven years, and featured nationwide for almost as long. TM notices applied, and even after that, a competitor brazenly STOLE the name, started holding events using my production name, even COMPETING with a current event I was producing.
We sued the infringer and lost. Why? Because, according to the judge, we waited six months to file the lawsuit, even though we were in the discovery phase.
I know this isn’t referenced to a UDRP, but it has to do with fair use of a term, a TM, and an idiotic judge who said in her final brief:
“The complainant waited over six month after discovering the defendant’s use of their company name to file their legal action. The Defendant has already started their events and is in process of holding those events where people have paid them money to participate. The Complainant’s action was filed too late, where the Defendant has invested time and money into using this name, regardless of the fact that the name could also be considered generic, the Defendant will lose money and hundreds of participants could be damaged if I filed injunctive relief for the complainant.”
Yes. That’s an actual JUDGE talking. Anyone who believes there is justice, logic, and intelligence at work in matters of law needs to push a tenpenny nail into their ear to wake them up. At least 40% of the time, there IS no justice or logic in legal decisions.
My attorney was aghast at the outcome, as he pocketed over $75,000 of my money.
NOTE: The “other” production company who stole my company’s name went out of business a year later.
By then, the damage was done, and I had to create a new production company name.
MORAL OF THE STORY: Don’t ever think you are safe with your “generic” domains. Don’t ever think logic reigns supreme in decisions that can affect your business and your life. Don’t ever think that money isn’t exchanged to help “the Decider” pick the “winner”. Who of us can stand up and wave their hand and say “I am not sorry I voted for GW Bush!”.