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Can this one simple step save you in a UDRP?

A disclaimer on a domain offer page could help you defend against a UDRP.

There was a panel on domain name law and the UDRP during last week’s TRAFFIC conference.

Bill Sweetman of Name Ninja provided some tips on how to mitigate the risk of losing a domain in a UDRP. One suggestion was to add a disclaimer to a domain offer page that says the submitter claims no legal right to the domain it’s making an offer on.

Nat Cohen of Telepathy was also on the panel.

Fast forward a few days and there’s a UDRP case involving Nat Cohen in which he put up that exact defense: that the complainant had expressly agreed to it had no legal right to the domain when it submitted two offers for it.

Here’s part of Telepathy’s defense for LGG.com:

In both cases the Complainant disclaimed legal rights to the Disputed Domain by confirming the following statement that accompanied both offers:

“By submitting this offer, I confirm that neither I, nor my organization, claims a legal right to the registration of the domain listed above. If I am inquiring on behalf of another entity, I confirm that this entity does not claim a legal right to the registration of the domain listed above and that I am authorized by such entity to make this representation.”

The offers were made on SecuredOffers.com.

Now, there were a lot of reasons Telepathy successfully defended the LGG.com domain name. The case was a joke.

But in a more marginal case, this disclaimer may have been helpful. That said, I haven’t seen a UDRP panel make a ruling based on such a disclaimer. I have no idea what sort of legal weight it carries.

It should be common sense to a panel that if a company offers $10,000 for a domain name, it must feel that the domain owner has rights to it. But common sense doesn’t always prevail.

What do you think? Could a disclaimer like this be helpful?

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  1. UDRPtalk says

    I think it could hurt by coming off overly defensive which could taint any potential negotiation.

    I do think it’s good to have if you are just starting out though.

  2. Miss Claimer says

    These cases do not hinge on disclaimers.
    If you are in the wrong no disclaimer can help if you are on solid legal ground the disclaimer is moot.

  3. John Berryhill says

    It’s silly voodoo of the type that leads people – law firms in particular – to attempt to unilaterally impose “terms” by virtue of sending an email.

    Why not just put up a statement on the website saying, “By visiting this site, you agree to pay me a million dollars”. Can’t go wrong there, eh?

    This type of voodoo was commonplace years ago when people would try that sort of stunt with clearly cybersquatted distinctive brands.

    What it says, pretty clearly, is “I think I’m cybersquatting, and I’m going to try to put a stupid unilateral ‘condition’ on your telling me that, and by some kind of magic I won’t be cybersquatting.”

    IMHO, it’s a dumb idea that makes it appear as if you have something to be defensive about.

  4. John Berryhill says

    …or how about those “disclaimers” on prostitution websites which say things like “This offer is for companionship only. By contacting me, you agree you are not a law enforcement officer, and that anything that might happen other than companionship is between consenting adults” and so on. You might as well put up a flashing GIF that says “PROSTITUTION HERE!”

    When I was about five years old, I had left a mess in the kitchen and my mother lined us up to ask “Who left this mess in the kitchen?” While my brother and sisters denied it, my response was “What will happen to me if I did?”

    Now, any lawyer will tell you that plea bargaining negotiations are inadmissible as evidence in a criminal proceeding. It didn’t work that way with my mom, though. If I were on the complainant end of a scheme like that, I would argue such a disclaimer to be an admission, and I’ve been telling people not to do harebrained things like this for over ten years.

    If someone sends you an offer to purchase a domain name for $X, then they have sent you an offer for $X, which is clearly an invitation to deal.

    If, on the other hand, you get those “How might I go about acquiring your domain name?” or “Would you be interested in transferring your domain name to us?” inquiries – those are lazy attorneys on a fishing expedition. If someone has a trademark claim, the straightforward approach is to put you on notice of the claim. From there, they can make a settlement offer, a demand, or whatever.

    I have one on my desk now where the complainant says, among other stupid things, that “using a pseudonym, the complainant contacted the respondent to purchase a domain name”. In that situation, you have to ask “Why the Hell did they do that?” Since the point of the exercise is to attempt to prove the domain name “was registered primarily for the purpose of selling… to the complainant” then using a pseudonym is a desperately stupid way to go about doing that.

    And that’s what these sorts of nitwits do – it is, in fact, a mere part of the stupidity in which P&G engaged in the Swash case. You have these folks like Treadstone Group, CSC, Marksmen and, oh yes Sedo, who hit people up for “anonymous negotiations” and then their client turns around and says “he tried to sell it to us because it is our trademark”. In reality, these kinds of people do more damage to their own case with their two left feet than anything else.

    If someone wants to make a trademark claim, they’ll make a trademark claim. If someone wants to make an offer to purchase a domain name, they’ll make an offer to purchase a domain name. Anything in between, absent an express settlement offer, is garbage on which you shouldn’t be wasting your time anyway.

    And, oh yes, I did mention Sedo. After a couple of weeks have gone by, remind me to ask Andrew to write a guest column on how Sedo will, in fact, lie to their client about what you told them. Save all your emails folks, there is gold in them.

  5. John Berryhill says

    And if anyone at Sedo wants to talk about defamation, then you had better first do this:

    1. Look at my email to Frank Aiello on March 21, 2011

    2. Look at what you then told your client in Germany

    The biggest mistake domainers make is trusting outfits like Sedo to do things like “tell the truth”.

  6. Andrew Allemann says

    John, I understand your points.

    I don’t think the email disclaimer example is the same sort of thing, since in that case you’re trying to impose terms on someone who hasn’t agreed to them yet.

    As for sneaking in terms, I guess you could make the same argument regarding the person who submitted a complaint to DomainTools and then was sued in Washington on the grounds that the forum selection clause in the DT TOS.

  7. John Berryhill says

    “who submitted a complaint to DomainTools”

    Ummm, he sent DomainTools a copy of a federal lawsuit which he was threatening to file against them, and has since been furious that, OMG, he was sued. All indications were that he wanted to be in a lawsuit, since he was the one making the threats. The case in WA, which I did not file or argue, was dismissed for lack of jurisdiction. So is your point that such terms are effective, or not?

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