Limit the chances of receiving bogus legal threats with these helpful tips.
[Editor’s note: Bill Sweetman participated in a legal panel about domain names at TRAFFIC Las Vegas. He gave ten tips to help domain owners protect their domains from bogus legal threats. I asked him if he would turn his talk into an article for Domain Name Wire. I’ve split the tips into two separate posts.]
In a perfect world everyone is knowledgeable, honest, and has the best of intentions in regards to your valuable domain names. Sadly, we don’t live in that world, which means there are some bad actors out there – including some over-reaching trademark lawyers who should know better – that will pull some pretty underhanded stuff and use trumped-up ‘legal’ claims to bully and steal your generic domain names away from you. I’ve seen this kind of sneaky stuff attempted hundreds of times, and I’d like to help you and your domains avoid falling prey to this.
With that in mind, here are some simple, actionable steps you can take right now to reduce the risk of losing your domain names for the wrong reason. Please keep in mind that I am not a lawyer (I only play one on TV), the following is not legal advice, and if you think you are facing a genuine legal situation please seek help from a knowledgeable domain name lawyer such as Karen Bernstein, John Berryhill, Bret Fausett, Ari Goldberger, Zak Muscovitch, and Howard Neu.
1. Do not park your domain names
The parking companies are going to hate me for writing this, but I figured I might as well start with my most controversial tip. Personally, I don’t have a beef with parking, and I know lots of domain investors who are making a ton of money with parking. But if you want to significantly reduce the risk of inbound complaints (legitimate or otherwise) about your domain names, do not have PPC ads appearing on the landing page. Nothing gets other people hotter under the collar than seeing what they believe to be PPC ads targeting their industry or featuring their competitors. This doesn’t mean you or the parking companies are doing this intentionally, or are even aware that it is happening, but you will significantly reduce the level of nuisance complaints you get by nuking the parking. Put simply, you give the other side less ammunition to use against you. There have been many a UDRP where the ‘evidence’ of supposed bad behaviour includes printouts of pages of ads for X where the complainant went to a parked domain and did a search for X. Surprise surprise, a page of ads for X shows up. Of course anyone familiar with how search engines work realizes this is normal, non-infringing behaviour, but sadly many UDRP panelists and lawsuit judges do not. Don’t give folks the chance to accidentally or deliberately use the PPC ads on your parked domain as evidence against you, no matter how innocent you really are. Perception is everything. If you still want to park your domains, work with your parking company to lock the keywords to a generic theme or topic. Ideally, use a “for sale” lander with no ads on it instead. Whatever you do, make sure the domain does resolve, because a non-resolving domain can also freak out the other side and can hinder your ability to sell the domain. One more thing to watch out for is forwarding. Be very careful about forwarding a domain to another destination since it can be easy to lose track of where the domain is forwarding to and what is being displayed at the forwarded destination.
2. Make sure the WHOIS info is accurate
Another thing that riles the other side up is the inability to contact the domain owner to lodge their complaint, regardless of the legitimacy of the complaint. Don’t give the complainants the ability to claim that they tried to contact you via the WHOIS record and couldn’t get a response. “We tried to notify the domain owner of our concerns, your honour, but they ignored us so they must be a cybersquatter…” Make sure that all channels of contact in the WHOIS records work and are monitored by someone responsible and responsive.
3. Avoid using WHOIS privacy services
This is another thing that really rattles people who might have a beef about one of your domain names, especially because lots of actual cybersquatters hide behind WHOIS privacy services. You are perceived as being guilty by association, no matter how good a reason you have for using the WHOIS privacy service. Where possible, display your actual contact info. If you really need to use a WHOIS privacy service, make sure that the privacy service forwards emails (and ideally snail mail) to you. Not all of them do. At least that way you will know if someone has an issue with one of your domain names and will have time to respond. On a related topic, find out what your registrar’s policies are about handling complaints about their registrants’ domains. Will your registrar protect your rights (and your identity) or will they roll over at the slightest possible threat? I have heard of some registrars charging their clients hundreds of dollars if one of their clients’ domains gets hit with a UDRP complaint, even if the complaint is totally bogus. Make sure your registrar has your back.
4. Put your contact info on the domain’s landing page
You’d be amazed how many people, including otherwise intelligent lawyers, don’t know what a WHOIS search is. Make it easy for these folks to contact you if they have a concern about one of your domains. Put your company name, email, and other contact info on your domain’s landing page. This also can be used as evidence of you being a legitimate operation since, in effect; it proves you are not hiding from anyone. Don’t give anyone the excuse to say they had no way of reaching you to express a concern about one of your domain names.
5. Be careful how you handle inbound phone calls
Sorry to say, but sometimes that innocent sounding phone inquiry about purchasing your domain name is actually a sneaky fishing expedition trying to gather evidence of your supposed malfeasance. If someone phones you about one of your domain names, say very little other than to thank them for their call and request that they put their inquiry, whatever it is, in writing. And by writing I mean email, although if you really want to gather a paper trail you can ask for a fax or snail mail letter on their company letterhead. The goal here is to have a solid, time stamped paper trail of the communication that you can use to defend yourself in case things go bad.
Stay tuned for the next five simple tips to protect your domains from bogus legal threats…
Bill Sweetman is the President & Lead Ninja of Name Ninja, a boutique domain name consulting firm that helps companies acquire, manage, protect, and profit from their domain names. Name Ninja offers a suite of domain name consulting services for startups, entrepreneurs and marketers, corporate domain name owners, and new gTLD registries and operators.