It's better to approach them Kev Ari Goldberger John Berryhill.
Two knowledgable domain lawyers on the top of my head that are very well respected in the domaining industry.
Good luck Kev..
Thanks for that. I cant reveal to much about the actual case unfortunately.
Why not? Sometimes the best defense is good publicity..
This is rarely true in a TM dispute.
Kev - you're on the right path. Consult legal counsel first...
Thanks name maker,.
I might reveal what the name is in a few days..
Ok, I will reveal the name since I am probably going to hand it over anyway. I received a 150 page document from Microsofts lawyers saying they want my name ZuneTunes.com. They obviously want to use this name for there download site for the zune.
I am not up to speed with regards to the legality of owning this name but I was wondering since I registered my name before they released there trademark for "Zune", will I have a chance in keeping the name if I were to take this further?..
Unbelievable, 150 pages just to bring the message "Transfer the domain to us".....
They tried to scare me by including a court transcript of the Burger King trial.
Basically, Burger King were offered the name burgerking.co.uk for 25,000 GBP by a cybersquatter back in 1997 I think it was. Burger King successfully got the domain in the end and sued for damages which put the company out of business.
But what I dont get, I never offered microsoft my domain.
Do I have a chance on keeping this name? I have had low x,xxx to mid x,xxx offers on this name so I think it is worth fighting for if I have a case.
But what is preventing me from taking this further, is that microsofts lawyers said they are entitled to sue me for up to 100,000 GBP, according to some uk law. I certainly dont want to take that risk. I suppose money talks..
THis is very key, and this puts you in a big position of advantage over microsoft. I think they're just trying to shake you off the name with a little intimidation,..
Did you had any feedback from above listed lawyers Kev?..
No not yet...
Im kinda annoyed with microsofts brute force attitude. I am actually getting a mention in my local paper tommorrow or monday. I think my family would be shocked if they found out microsoft were wanting to sue me though..
Their going to place a article in the paper? If this is the case they are doing something that can work against them since...well in my country you just can't post names of ordinary people like you and me in the papers. I've seen mentionings of peoples property going to be impounded and stuff like that where names are indeed listed but those are cut and dry cases.
This dispute isn't even resolved yet and they are threathning with publication in the paper. Doesn't sound legal but I am not a lawyer so it's not really up to me to say.
But it sure stinks!..
It seems like Kevin is going to get the mention in the news paper.
If I were you, I would let it go. You may be true and honest and hardworking and sincere but at the end money talks. Unless you a hire a big lawyer and fight back along with huge publicity say in major blogs. But then think about it, what right you have the word zune and why did make zunetunes unless your name or your company name is zune and you guys produce tunes.
So I think you made the decision already to hand over the name. May be you can get some money back in the name of expenses.
Well, I told one of my friends that microsoft might be taking me to court and he passed it on to my other friends, and someone sent an email into the local paper. ive sent an email and given the paper a phone about trying to stop this from happening, but I may be too late thanks for the advice. much appreciated. I'm just a bit annoyed that I'm getting picked on when there are hundreds of other zune names floating around..
I am sorry to hear that Kev. But they might have picked you because you were brilliant in choosing that name. and we know MS is not that brilliant, so they will use the money to cover the gaps. They may also go after the other good zune names that are floating around. There is a reason why some big holders of names do not register TM names though they knew the news in advance about the launch, imo.
This was the first tm related name I have gone for. I dont normally go for them as I know the problems they would cause. but seeing ZuneTunes.com as available when I did a search for zune names, it was too good to miss...
Why don't give it to them, but ask some money in return. I bet MS wouldn't think twice if you asked $100 (Dunno how much money you put in it, so I'm just saying $100)...
Well, I guess I'll burst the bubble here.... This is a TM name, you admit it is a TM name at registration, and by your use of the domain, you are squatting on the name for your own personal gain... so what exactly is your complaint???.
You intentionally cybersquatted on a TM, the TM holder is enforcing his mark, I don't see any problem here.... sorry, but you need to jsut hand it over and say, thank you for not taking every penny I have.
This was discussed during the great "What Zune name did you get" thread. Everyone on there was squatting, so please don't go crying that you got caught...
I am not "crying" that I got caught. I'm just merely bringing peoples attention to this incident...
Although I can understand if you just hand over the name (I probably would do that myself in your case), the fact that you registered the name BEFORE their trademark date might be an important detail.
Some months ago I had a small legal question about some expensive country .tv domain I regged and mailed Ari Goldberger. He replied and gave some good free advice.
Like Damion is saying, it might be a good idea to send a clear and short email (without the 150 page complaint) to Ari Goldberger or John Berryhill or both. You never know and if they don't reply, nothing is lost anyway..
My only advice is not to respond to them, or if you do, mention that you are having your lawyers review the situation and you will get back to them. By responding you could inadvertently say something that will later harm your case if you do decide to fight it. If you give them the impression that you have legal representation, they may be willing to try to settle with you, instead of going to court... It would be much cheaper for them to do this, but then again, it is MS, so maybe they just don't care.
Personally, I don't think you really have a case, which sucks, because it is a great name...
Bringing atention to what? MS is just protecting thier TM which you admitted they have. Plus you acknowledge that you bought the domain after the announcement of "Zune". So in reality, you did not register the domain before the TM as claimed, you registered it afterwards. And a TM is not just the date of filing either. I am sure MS can prove Zune was being used (or more importantly, that was thier product) before the registration of the domain.
You are stating here that they are wrong (or at least implying it at the start of this thread), and several people are jumping on the badwagon here.
It is a nice domain, but how nice would it be in MS did not roll out Zune? This is classic cybersquatting, and you still have your parking page up which competes with MS.
It is reasons like this that domainers get a bad rap.
So the people saying there chance to win this csae, you better look at all the facts first, not just someone says...
Kev, you should do yourself a favour and listen to DNQ. I brought this up in the great Zune thread, pointing out MS decision to hunt down squatters and was of course shot down under the claim that "MS wont chase us".. Unfortunately you are living proof that they will...
JB and AG probably wont reply to you because it is a waste of their time. You have no case, you are in the wrong, you will lose and you are unfortunate to have bagged one of the nicest Zune domains.
Simply do as they ask. Remember, they can still sue you regardless that you agree to hand the name over. They probably wont if you comply to their demands.
Sorry to be the supporter of what must be bad news for you..
If I were a judge, I'd say that.
A) It was registered in bad faith.
B) It can be said that the domain is 'passing off' as something of microsoft's (unless you put some obvious notice on the parking to the contrary).
C) You have no objective interest in the name. For example, if you had some business called Zu Netunes that was established and had built up goodwill under the trade name, you could arguably have a legit interest.
IMHO (not a legal opinion), you'd be best selling to those who've expressed interest and letting them know about the letter. (Edit: Meant to say that none of this is a legal opinion.)..
While everything sounds good in this post, the one that is in red may not probably take the OP off the hook. The only best course is to hand over the name.
Did you honestly tell any of your friends why you registered the domain name in.
The first place? Or the fact that MS filed suit? http://www.internetnews.com/bus-news...le.php/3628046 Yours might be one of theirs or a recent development. Then again, who cares.
Perhaps you'd like to honestly take a longer harder deeper look into your intent.
In the first place...
DNQuest is 100% right. I feel sorry for those who rushed in to register zune domains. You may be the next in the line..
I don't think going for publicity is a wise move. Publicity is not the best defense when you have a powerful corporation going after you..
Remember M$ is cracking down on TM infringements and if your case becomes a high-profile one they will want to make an example of you. To me there is no doubt that your best option is to be humble and hand over the domain to them. It's a nice name but a huge liability at the same time...
This is where I differ, I DO NOT feel sorry for those who squatted on the Zune name. They conciously knew what they were doing when they registered Zune domains. They wanted to make some money one way or another.... and that's is agaisnt the law...
As I said, this is the first tm name I have ever owned. if microsoft are only going to come after one name out of possibly hundreds of "zune" names then it is worth the risk. at the end of the day, I have only lost $8..
Hold on a moment... let us reflect on the penalties of cybersquatting:.
Loss of the domain...................................................... $8.00.
Loss of revenue already gained (all PPC clicks) .......(fill in the blank).
Loss of profits (or punitive damages).............................unknown.
Paying thier legal fees (150 pages... that's alot of time)...$$$$$.00.
Lanham Act being invoked.......................................$100 ,000.00.
A hard lesson learned..................................................priceless..
This might allow you to rethink your risk vs reward business model.....
Interesting link Badger, thanks for the link.
A little eye opening though I know MS is agressive about these things. I made similar mistake in my early domaining days. I registered a typo of a famous site and parked it and it started getting hits right away. The keywords are premium too. TBH, I was scared. We all know these lawsuits can take away everything that you have legally or otherwise.
Ironically, that name was registered again and for sure is an earner for the new registrant, but who knows.
Go on, tell us the domain name ... you know you want to!.
Strange they are coming after you (sorry to hear this) but not this one:.
Full article: http://www.redherring.com/Article.as...inmentAndMedia.
Some snippets: Maybe it's because the buyer has a non-profit message board there...
They probably will come after that name too. In fact zunemarketplace.com was auctioned off at Namepros auction few weeks ago. Then I saw an article about that zunemarketplace.com was on sedo for 3k or so and MS did not bother to buy it.
Ye, I am about to transfer the name over. They said they had plans to develop it in the future..
What was it's final auction price, if you recall ? Btw, is there a way to find out the final prices of domains sold at NP auctions, if such a record is kept by NP?..
And to think I tried to register Zunetunes.
Mmm... lucky I didn't.... reason... thought there might be a TM problem with "Zune" so have stayed out of that area alltogeather. By a simular note, can you blame people that ahve the name "Mac" in their domain title? Do you think they want to "exploit" the mac, chances are they are there to actually build constructive sites that only benefit the image of mac.
Domaining for the purposes of squating is the problem... and this rarely works.
As long as you have good intentions for the domain name, then what can they do. Are we to be censored for using their name in a context?.
Saying this.... err.... don't take my advice I know nothing about law talk to lawyers don't do anything stupid and best of luck...
Nice and constructive derrida, well done....
Im sure the OP is really interested about your lucky escape..
The domain is registered to MS now judging by the WHOIS info:..
Yep, Damion but still listed @ Sedo...
Maybe they are trying to make some PPC to pay for that 150 page doc they sent to kev...
I offered them MSFT*US some months ago, but no reply. MS seems to get their domains after the fact...
Yeah, I sent it to them about a week ago. they gave me $100 without me asking for anythin which was ok I suppose..
I guess a lesson learned...
At least you can say you were the original registar..
And you earned a couple of bucks...[50 :S] Still a good profit - $8 turned out to $100..
Well ithink as the domain was registered before microsoft got the trademark you could have kep the domain but well your cboice..
I woulda asked for an Xbox 360... Probably costs them alot less than $100 to make one... heh....
Keep it and face the consequences.....
Wise choice from Kevin not to pursue to keep the domain...
Yeah, I didnt want all the hassle from a court trial so I just handed it over. my heart was to go for it, but my head said otherwise. it is a good experience which I have learnt from..
I honestly don't think there is a lesson to be learned here... I'm big on TM law, so I know how it works and I know it works both ways. As often as you have the little guy trying to reg a TM domain in hopes of making some money, you also have deep pocket companies that overstretch their legal rights and throw money at a situation to essentially steal domains from people who have every right to own them. In a perfect world TM law would be just and fair, but then again, in a perfect world, law in general would be just and fair, but we don't live in that perfect world. And I'm just not self-righteous enough to think that I should obey all the laws to the letter while everyone else manipulates them to put things in their favor. Personally I like to see the little guy make off with a $92 profit...
So you learn whatever lesson you want, but know that no one else is playing by those rules It seems the only rule in the world of business today is to maximize your profits and minimize your liabilities, and that's exactly what you did...
Well said. Minimize liabilities from case to case. I did see TM infringement in day light to make money with them. So until caught or asked, one MAY play with it and even profit from them.
Can you tell me in which state do the Microsoft lawyers have their office? In which state do you live? Can you also tell me if their lawyers advised you to seek advice from an independent lawyer before transferring your domain to them?..
There UK lawyers based in London sent the details. I live about 500 miles north of london in scotland. They never said anything about me seeking legal advice.
So did you ask for anything in return? Like at least $10 ?
As a general rule, lawyers in the US are required to include in their letter to an unrepresented defendant a notice advising him to seek advice from an independent lawyer first. This prevents opposing counsel from taking advantage (bullying) of the unrepresented defendant's ignorance of the law. I don't know if the same ethical rule applies to lawyers in the UK...
I guess thats fair, atleast he didnt lose anything...
I've seen many people post C&D letters that they received on this forum and I honestly can't remember a single one where the letter advised them to seek independent counsel. They basically just spout out a bunch of reasons why they need to hand over the domain immediately, and alot of times, the reasons they state are completely unfounded and misleading. Like I said, no one is playing fairly or ethically in this game...
What I don't understand is, that it was registered BEFORE MS made Zune a trademark.
Surely that in itself is a defence? because otherwise I could make "blog" a trademark (for instance) now and then start raking in the cash )))..
It's nice if they do. But do they have to?.
AFAIK they don't even have to send a C&D in the US...
Yeah I don't get it either, if you reg it before the TM what legal ground does the "new" TM holder have on a name. Makes no sense to me...
Just for your info. I got a name with the same case as you are. A very big company did the same thing but it is notthing problem for me, the name still is mine. What did I do?.
1- Say nothing (do not reply) to their complaint..
2- Do not use the name for anything, just parked with empty pages "under contructions" no ppc terms...
Finally, the court say, I am still the right owner...
Can I ask which name it was? pm me if you want to tell me..
Sorry to bring some facts into this soapbox arguement... The name was registered AFTER MS announced the Zune product, the OP admitted that (and there is a whole thread here with about the gazillion TMed names willfully registered by squatters after the name was announced). The OP admitted that he was looking to score off the name.
As it was mentioned, there is no hard lesson here, it was a willfull TM violation. The trick is to learn from the mistakes...
I'm curious on what it is that people have learned from this example.
A. You see a new brand, product or service mentioned somewhere and you quickly register that domain before they get their trademark but the lesson you have learned is not to mentioned anything about the fact that you knew in advance. So when they take you to court you say I donno.
B. You have learned not to register any names that could have possible TM issues since it is not worth the headache.
So which one is it?.
I have a fictional scenario in mind. Assuming there is a company and they name their products following a certain pattern. Let's assume it goes like i710, i730, i750,....
Then you quickly jump in and register i810.com. Where do you stand?..
I view that as pre-cybersquatting.
Much would have to do with usage. Any sign of bad faith could doom you (PPC of their products or competitors products). But is you have a site that has nothing to do with their area and it was registered before they even announce thier new product, you would have a good chance at keeping it...
21st century fox would be a prime example of such an eventuality..
It's already the 21st century But quick, lets reg 22nd century fox and then in 94 years we can reap the benefits..
I'm pretty sure I read an article on Microsoft getting a foriegn trademark on Zune before they released the name. Not sure what the strategy was but I understood it that this would legally cover the time period before they got the U.S. trademark and put them in no rush to get a U.S. trademark. If this is true, you probably actually didn't register the name before it was trademarked. Hopefully that will make you feel better about the decision you made...
If I remember correctly, Microsoft took their sweet time before making a public announcemnt that Zune was going to be the official name. I bet they didnt even know what they was going to call the product until the last minute. They do not even own zune.com - Can they take that poor guys name too?..
Interesting... zune.com was registered on the 22nd of June 1998.
If you try to visit the site it will give you "Directory listing denied" (in spanish).
According to alexa, it has 100k hits a day. And if you go to http://web.archive.org/web/*/zune.com and click on the 2001 archive, you will see: 1997 Microsoft Corporation. All rights reserved..