Maker of Wholly Guacamole goes after widow of domain registrant; loses.
I love Wholly Guacamole. It’s the only guacamole I buy; I just picked some up at the grocery store over the weekend.
Too bad it turns out some people at the company are assholes.
I don’t think I’ve ever used that term on this site, but I think you’ll agree after reading the case the company (Avomex, Inc) filed to try to get WhollyGuacamole.com. (It lost.)
The domain name was registered by Barry Pierce in 2004. He died in 2006. In 2007 Avomex started using the Wholly Guacamole brand in commerce.
After trying to pressure Pierce’s widow and her son to accept an offer to buy the domain in a short time frame, Avomex filed a UDRP on the domain name.
You want to hear what Avomex’s first example of supposed bad faith is?
“First, that Respondent failed to properly update the registration WhoIs information after Barry Pierce’s death.”
Yeah, Mrs. Pierce. You should be ashamed of yourself for not updating the whois record on WhollyGuacamole.com as soon as your husband died. I’m sure it would have been top of mind.
Oh, it gets better:
Finally, citing Ticketmaster Corporation v. Global Access, WIPO Case No. D2007-1921 (February 13, 2008), Complainant alleges that when Barry Pierce died, Respondent effectively acquired the domain name “in 2007, after Complainant filed†its trademark application. Therefore, interpreting Ticketmaster, supra, Complainant alleges that Respondent failed in a duty to perform due diligence to ensure that the new domain name “acquisition†would not violate existing trademark rights.
So when your spouse dies then it’s a new registration. But you acted in bad faith by not updating the whois information right away. And you should have done a trademark search after your husband died to make sure his existing domain registration didn’t violate a newly filed trademark.
Unbelievable. Simply unbelievable.
Anyone know of another good brand of guacamole?
Acro says
Nothing wrong with a company wanting to protect their brand. “Wholly guacamole” is not a phrase that you’d expect to use outside of the particular product, the common phrase is “holy guacamole”. In that respect, the original registrant (RIP) most likely used bad faith in registering the domain. However, the “knife to the bone” approach and reference to a dead person’s inability to defend themselves reek of lawyeristic imagination. For a better brand of guacamole, go to http://avocado.com
Andrew Allemann says
@ Acro – read it again. He registered it before they started using the term, so it couldn’t have been done in bad faith to target these guys.
David J Castello says
Yes, do what I do and always make your own. It’s simple and tastes 10X better. Email me if you want my recipe.
And, yes, these people are assholes for either approving or not reviewing what their attorney was going to file.
Chip says
Sleazy and Slimy. This is the sort of thing that in a court of law, the attorney could get slapped with some sanctions. At least this shows that there are assholes on both sides of the UDRP process.
Acro says
I read it very carefully. Several “wholly guacamole” trademarks exist (two registered: one from 2003, one dead from 1999) which further indicates the deceased wasn’t much of an angel registrant.
Andrew Allemann says
Well, he wasn’t targeting these guys.
Mansour says
@Andrew
I must say you have been unfair to Mrs. Pierce and you owe her an apology. It is very difficult to respond to a complaint without a lawyer, and it looks like she did not want to spend the money. It was the responsibility of the wipo panelist to be fair. No one knows what it’s like to lose a husband. Avomex INC is just a sleazy company. I love Guacamole, but I promise you that I will not eat it anymore for the rest of this month.
Andrew Allemann says
@ Mansour, yes, it was sarcasm
Acro says
Mansour, Andrew was being sarcastic. However, Mr. Pierce passed away five years ago.
Mansour says
I must say I took the Bait.
Thanks guys
Mike Robertson says
It’s sad that the family has to go through something like this after already having to deal with the pain of losing of their husband/father. I wouldn’t be surprised if Mrs Pierce and her son had no idea about Barry’s domains and even if they had, most family aren’t experienced to know how to manage names, handle disputes. It’s good to see that UDRP panel ruled in favor of the respondent… this time.
Domainer Extraordinaire says
Those bozos still don’t own WhollyGuacamole.com.