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Got an inquiry from a company in England for a domain I've owned since Sept. '06. (It's been parked at Fabulous since buying it.).

The inquiry e-mail came directly from their company to my whois admin address.

They wanted to know, "What is the price of the domain?" I wrote back that "I wouldn't be opposed to discussing a price for the domain.".

The company sells a product (one of several) with the same name as my domain. I don't lnow how long they've been selling it.

They filed for a TM in Britain in Dec '06 and got it in May of '07.

The co.uk version of the domain is not registered.

There doesn't appear to be a US TM on the name.

1. Does asking for a price mean anything akin to making an offer?.

2. Do you see anything for me to worry about?.

3. Any advice?..

Comments (19)

I always say it was purchased for development at auction, however it's currently on the back burner. If they want to make a serious offer, you would consider it. Im not sure if this legally protects you, but it makes me feel comfortably...

Comment #1

I would just tell them my price, but if you are afraid just ask them to make you an offer...

Comment #2

I'm not a huge re-seller, but my good friend is and he NEVER gives a number - he makes them make on offer and he'll negotiate from there...

Comment #3

This is pointless as most often the offer would be $100...

Comment #4

Make an offer higher than you expect them to go for and higher than you expect to sell for. Then see if they offer something lower...

Comment #5

What ever they offer you, remember they will pay 300-1000% more!..

Comment #6

Personally I would ask them for an offer instead and not want to give them a price. The reason I say this is because you are unsure how much they value the domain. So when you give them the price it may be too little so you may have been able to get more out of it.

About the legal side, as long as are not selling their product there shouldn't be any problems.

Good luck though!..

Comment #7

Then a good reply is simply "Thanks for the offer, but I'll have to pass on it." ....period.

If they were testing the waters, they got their answer. If they really want it, they'll offer more. If they were baiting you for a UDRP, they failed. You've sent the message you aren't desperate to sell or naive about value...

Comment #8

I realize it's beneficial in the negotiation process to get the other guy to name a price first. While strategies to persuade the other person to do so are important, I'm concerned about how to reply to an "inquiry" so that I don't bolster a UDRP case if that's what the inquiry is trying to do, and what has to be included in an inquiry that would categorize the inquiry as an "offer"....or not an offer, as that plays an important part in the UDRP defense.

So one main question is: What makes an inquiry become an offer? Does "What is the price of the domain?" constitute an offer, or is it too vague?.

And, part two, if the inquiry is too vague to be an offer, how should a reply be phrased so as not to cross any bad faith boundaries by the reply?.

Finally, in this case, regardless of the status of the inquiry, are there grounds for the buyer to file a UDRP for the domain with his UK TM, even though the filing for the TM was after I bought the domain? I've found unsolicited offers directly to me to be about 50% $200 or less (but will often usually pay above $200 when counter-offered); the other 50% offer above $200...sometimes substantially over that amount. I've found it's usually through 3rd parties like sedo and such that a make-an-offer listing gets low-ball offers more than 50% of the time and are often unwilling to go much higher than the original low bid...

Comment #9

I set a minimum offer price for every domain I list on sedo. Many times someone will make an offer for that minimum price (eg 600 euro) and will not go any higher..

Is it a coincidence that their budget was exactly at my minimum price? I doubt it. Maybe it is the inability of sedo to explain that this minimum offer is not the sale price but the minimum price to start a negotiation...

Comment #10

One thing to keep in mind in all this is how your response might look if you eventually ended up in an arbitration proceeding with the name. You should be truthful in your response, but making it obvious that you're simply holding the domain for resale is not a particularly good response if the company files an action to recover the name...

Comment #11

That's one reason for my original post...and if the buyer's e-mail would be considered an offer. Would it?..

Comment #12

If the company wrote, asking: "What is the price of the domain?," that is not an offer. It is an inquiry. An offer has to be something that would allow everyone to know what is being considered, and make important material terms clear (i.e. price). A valid offer would be:.

"I offer you $5,000 for domain LLLLLLL.com.".

If you immediately wrote back and accepted, that would form a contract, though you'd probably have to fight to enforce it.

Good luck...

Comment #13

As I thought...thanks.

Unfortunately, if your premise of "holding the domain for resale is not a particularly good response if the company files an action to recover the name" proves valid, it seems to be a double-standard in many respects...that particularly for domains, investing for resale is somehow not defensible.

Edit: I'm quite surprised that an offer, followed by an acceptance, both in writing, would be difficult to enforce. Then again, despite the number of years it's been around, domaining still has many mysteries...

Comment #14

Oh really, I'm in Rwanda. Feel free to come enforce a judgment...

Comment #15

Not my specific situation in this case, but your comment brings up a related point: How difficult are international trademarks to enforce? Does it depend on agreements between specific countries (and the committment to enforcement), or more than that? It seems fairly convoluted...

Comment #16

Why would I do that when I could probably just pay a few guys to kill you?..

Comment #17

I'm interested in what verbster is touching upon too. If you get an offer, like CyberLaw says ""I offer you $5,000 for domain LLLLLLL.com." Are you immediate in a bad faith situation if you respond "The price for this domain is $15,000". Or with any higher price at all...

Comment #18

Http://www.wipo.int/amc/en/domains/s.../index.html#31.

3.1 Can bad faith be found if the disputed domain name was registered before the trademark was registered/common law trademark rights were acquired?.

Consensus view: Normally speaking, when a domain name is registered before a trademark right is established, the registration of the domain name was not in bad faith because the registrant could not have contemplated the complainants non-existent right.

Relevant decisions:.

John Ode dba ODE and ODE - Optimum Digital Enterprises v. Intership Limited D2001-0074, Denied.

Digital Vision, Ltd. v. Advanced Chemill Systems D2001-0827, Denied.

PrintForBusiness B.V v. LBS Horticulture D2001-1182, Denied.

However: In certain situations, when the respondent is clearly aware of the complainant, and it is clear that the aim of the registration was to take advantage of the confusion between the domain name and any potential complainant rights, bad faith can be found. This often occurs after a merger between two companies, before the new trademark rights can arise, or when the respondent is aware of the complainants potential rights, and registers the domain name to take advantage of any rights that may arise from the complainants enterprises.

Relevant decisions:.

ExecuJet Holdings Ltd. v. Air Alpha America, Inc. D2002-0669, Denied.

Kangwon Land, Inc. v. Bong Woo Chun (K.W.L. Inc) D2003-0320, Transfer.

Madrid 2012, S.A. v. Scott Martin-MadridMan Websites D2003-0598 among others, Transfer.

General Growth Properties, Inc., Provo Mall L.L.C. v. Steven Rasmussen/Provo Towne Center Online D2003-0845, Transfer..

Comment #19


This question was taken from a support group/message board and re-posted here so others can learn from it.

 

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