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Domain Bits

Frank Schilling Loses UDRP  20 Nov 2008, 8:14 am

In one of the most ridiculous UDRP decisions that I have ever seen, Frank Schilling (owner of Name Administration) lost the domain ChilliBeans.com.

The case was brought by a company in Uruguay, which owns a trademark for “CHILLI BEANS” for eyewear and watches.

The panel found that the domain ChilliBeans.com was identical or confusingly similar to the trademark CHILLI BEANS and that the design elements of the trademark didn’t matter.  No big surprise here.

In the second stage of the UDRP analysis, the panel looks at the parties’ rights and legitimate interests in the domain.  The panel found that the Complainant had such rights and interests. Schilling argued that he was using the domain in a legitimate way - to display ads linking to goods and services relating to food and beverages, which is consistent with the meaning of “Chilli Beans.”  However, the panel found that there was no evidence that Schilling explored the possibility of third-party trademarks before registering the disputed domain name.  The panel further found that there was evidence of (a very small amount of) pay-per-click advertising links on the ChilliBeans.com, related to the trademark.

The Panel decided to make up its own law and stated:

Moreover, this Panel cannot ignore the implications of publicly available traffic rankings generated by Alexa – and unchallenged by the Respondent – reflecting that in August 2008 some seventy-five percent (75%) of the traffic to the Respondent’s website originated in Brazil. This is significant given that the CHILLI BEANS mark has been used in Brazil since as early as 2000 and is more widely known there than in other areas of the world. While the Panel has no effective means of discovering traffic data at earlier dates, this certainly cautions against the Panel blindly accepting the Respondent’s contention that the sheer numerical preponderance of links keyed to the generic or descriptive meaning of the domain name renders the presence of paid advertisements related to a trademark insignificant or inconsequential, at least insofar as it concerns the pay-per-click revenue generated as a result of these links.

What??  The panel is looking at Alexa data and domain owners are expected to do so too??  And Alexa can’t be easily gamed?

The ultimate issue in these sorts of cases is whether the domain owner registered the domain in bad faith.  Apparently, not knowing about a trademark, plus intending to use a domain only for its generic use, and targeting ads for the generic meaning are not sufficient.  The panel concludes that Schilling registered and used the domain in bad faith, as he failed to explore the possibility of third-party rights and his parking software was incapable of distinguishing between dictionary meaning and trademark meaning of a term.

The panel completely ignored the fact that Schilling went out of the way to target food products in his ads.

The panel ordered Schilling to transfer the domain.

My guess is that Frank will be taking this to court soon.  If something as generic as ChilliBeans.com is in danger of an UDRP loss, almost every domain is too.

The Domains

Buy Yung Yee’s Portfolio At A Discount  20 Nov 2008, 6:08 am

Ever seen a great deal get done and think to yourself, “I wish i could have been involved in that one?”

Well you may have your chance.

As you will recall that Yung Yee, arguably the best domain portfolio ever available, sold his portfolio several years ago for $165 million to Marchex, a publicly traded company.

As of yesterday, Marchex closing price of $4.57 the market cap for Marchex ($175M) is just slightly more than the purchase price of Yung Yee’s portfolio, several years ago.  However factor in to the equation that as of last quarter Marchex was sitting on $29 million in cash then the Market cap not counting cash is $146 Million or almost $20 Million less than Marchex paid for Yung Yee portfolio.

With today’s stock market looking weak, on more bad unemployment figures, it looks like Marchex market cap may decline even further.

So the bottom line is, if you believe the domains are worth more they were a few years ago when this portfolio was sold, you now have a chance to own a piece of the portfolio, by buying some shares of Marchex, at a discount from what Marchex bought the domains for.

I thank the couple of readers who bought this to my attention.

The Domains

WIPO Decision With Big Ramifications: Dealers Can Use A Manufacturer’s Trademark In Its Domain Even When Their Sales Are Not Authorized By The Trademark Holder  19 Nov 2008, 4:39 am

Here is a WIPO decision of wide ranging impact, the first one deciding that a dealer or reseller can use the trademark of a manufacturer even if not authorized by the manufacturer to reseller it products and without the trademark holder permission.

In what i consider to be an important WIPO ruling, pressure gauge maker ITT sought to get the domain name ITTbarton.com, itt-barton.com and 11 other domain names, owned by a seller of ITT pressure gauges, a company called Differential Pressure Instruments.

ITT argued trademark infringement before an arbitration panel of the World Intellectual Property Organisation (WIPO). The US company holds over 700 registered marks incorporating the ITT mark, in more than 100 countries.

Nicoll, based in Norfolk, Virginia, sells products that were made by ITT and purchased by the US Government but never used. The Government sold off its surplus stock to Nicoll and others who bought them for resale.

ITT argued that Nicoll had no rights or legitimate interests in the domain names.

The three-member WIPO panel applied a test laid down in a 2001 case.  In that case, a computer accessories maker, Oki Data Americas, took action over another company’s use of the domain name Okidataparts.com. The panel in the ITT case wrote:

“The Panel in Oki Data concluded that the use of a manufacturer’s trademark as a domain name by a dealer or reseller (an authorized dealer in that case) should be regarded as a ‘bona fide offering of goods or services’ […] if the following conditions are satisfied:

• the respondent must actually be offering the goods or services at issue;
• the respondent must use the site to sell only the trademarked goods (otherwise, there is the possibility that the respondent is using the trademark in a domain name to bait consumers and then switch them to other goods);
• the site itself must accurately disclose the respondent’s relationship with the trademark owner; and
• the respondent must not try to “corner the market” in all relevant domain names, thus depriving the trademark owner of reflecting its own mark in a domain name.”

ITT argued that the Oki Data test should be limited to authorized resellers only.

The WIPO panel disagreed.

“The Complainants argue that the Oki Data rationale should not apply to an unauthorized reseller,” said the ruling. “The Panel concludes, however, that the issues of legitimate reseller interests in accurately describing a lawful business, on the one hand, and of potential abuses of trademark, on the other, are similar whether or not there is a contractual relationship between the parties.”

The Panel noted that:

“”"”Respondents unquestionably offer devices that were originally sold and labeled as ITT or ITT Barton products. The record indicates that they have done so since 2000, before the Domain Names were registered. The Respondents’ website accurately discloses in its heading the name of the company offering those products (DPI) and includes a home-page disclaimer of affiliation with the Complainants. The website also includes a more detailed explanation, on a page linked from the home page, of how the Respondents have purchased and stocked “new surplus” ITT Barton devices for resale. The Respondents have not attempted to “corner the market” in relevant domain names.”"”"

It concluded that “the Oki Data criteria are appropriate here to assess the rights or legitimate interests of the unauthorized reseller for purposes of this element of the Policy.”

The panel said that Nicoll had “a legitimate interest in making nominative use of the ITT mark consistent with the Oki Data requirements; consequently this does not reflect bad faith.”

However it should also  be noted that if the domain were “parked” the results would have been different as one of the domain was “parked” by the domain registrar (Tucows) for some time:

“”"”The Domain Name <itt-barton.com> resolved at times to parking websites with nothing but third-party advertising links. The Respondents assert that the Registrar parked the inactive Domain Names in this fashion without agreement or payment to the Respondents. This assertion is plausible. There is no indication on the archived pages themselves that they were parked under the Registrar’s advertising revenue-sharing program, and it is a common practice for many registrars automatically to park idle domain names for their own benefit until the registrant makes other use of them.

This use does not appear to have been part of a deliberate “bait and switch” scheme, although at least one advertising link was associated with a competitor of the Complainants.

Nevertheless, the Respondents allowed some of the Domain Names to be used by the Registrar in this manner for at least a year at a time, in connection with the offering of goods other than those associated with the ITT mark. This is not a legitimate reseller use of those Domain Names under the Oki Data test.”"”"

However since the parking was done by the registrar, not by the domain holder, and the registrar did not share the revenue with the domain holder, again in this case Tucows, the panel disregarded the short time the domain was parked and found for the domain holder.

You can read the full decision here

The Domains

Foundit.com: A Great Use of a Domain is Launched  18 Nov 2008, 5:38 pm

A couple of years ago I leased the domain foundit.com, with an option to buy to a startup.

Since then the buyer has been hard at work and today they announced the completion of their lost and found site for all things, from your camera to your laptop to your blackberry and much more.

Another great example of how you can use a good domain and turn it into a business with an idea, a lot of hard work and a few bucks:

The Company
FoundIt is a loss protection and recovery service that virtually guarantees a lost and found item will be returned to you. Sign up today to protect your cell phone, laptop, camera, blackberry…even your little girl’s teddy bear, through our custom tracking service.

Your Problem
With everyone today walking around with their personal and corporate lives attached to their hips, the amount of lost personal items has skyrocketed 350% since 2001.

If you’ve lost a laptop, PDA or cell phone, then you are well aware of what this horrible experience has cost you or your company. While expensive insurance might provide a refurbished replacement, what you really want is your irreplaceable data and sentimental item that you value the most, back in your hands.

Our Solution

Foundit provides individual plans, corporate packages and enterprise solutions whereby customers acquire a unique numbered Foundit decal and then register anything from a PDA, iPod and laptop to a skateboard and a bicycle through Foundit.com. When a registered item is found, Foundit’s service team facilitates the entire return process.

An Awesome idea, which we believe will be very successful and we wish all the folks at foundit.com the best of luck.

Domain Name Wire

GoDaddy Increases Default Registration Period to 5 Years  18 Nov 2008, 9:17 am

Be careful as you click through checkout on GoDaddy .

If you’re used to quickly clicking through the GoDaddy checkout process to register domains, be warned: the default registration period has changed to 5 years. The graphic below shows the default when I tried to register the domain RegisteringDomainsForMultipleYears.com.

Most domainers already stop at this step to change the default from two years to one, and it’s likely that you’ll catch the change when it comes time to pull out your credit card and you see the $49.95 charge per domain (the price for 5 years).

Don’t blame GoDaddy for making this change, as it makes sense for the company to boost revenue. Frankly, any small business registering a domain should go ahead and register it for 5 years. $49.95 is a small start up expense. Domainers, on the other hand, usually register domains for one year at a time to manage cashflow.

Incidentally, GoDaddy is still offering .com domain names for $9.99 plus the 20 cent ICANN fee. After VeriSign increased its prices in October GoDaddy increased its official rate to $10.69 plus the fee, but has sense had the domains “on sale” for $9.99. I suspect that $10 is a heavy marketing barrier. By charging $10.19 and pulling out the 20 cent fee, domains stay below the psychological barrier.

Have an opinion about GoDaddy? Review and rate registrars at Registrar Judge.

© DomainNameWire.com 2008.

Review and rate domain name registrars at Registrar Judge.

DomainPulse.com - The Beat on the Domain Name Industry

Pisos.net makes Six-Figure Sedo Domain Sale  18 Nov 2008, 3:07 am

Sedo’s domain name sales for the week to 11 October resulted in a big .net sale with pisos.net selling for €150,000. “Pisos” means “story” in Spanish. Other notable sales were aed.nl, selling for €25,500, rencontre.org (€25,000 – meeting in French), voyance.net (€25,000 – clairvoyance in French) and telefonbuch-deutschland.de (German telephone book) selling for €19,500.

To check out the full list of Sedo’s sales for the week, see below:

Domain Name    Price    Currency    Type    Translation

.COM
vicaso.com    10,000    USD
cardpay.com    7,000    USD
wuh.com    5,877    USD    GreatDomains
pettalk.com    5,500    USD
ugd.com    5,100    EUR    GreatDomains
umschläge.com    3,990    EUR    Envelopes in German
mymailbox.com    3,900    USD
wconcept.com    2,500    USD
heritage-group.com    2,500    USD
singaporeluxuryhotels.com    2,200    USD
glennmartindds.com    2,000    EUR
newaveups.com    2,000    EUR
tunesdirect.com    2,000    USD

ccTLDs

aed.nl    25,500    EUR
telefonbuch-deutschland.de    19,500    EUR    German telephone book
sonnerie.fr    18,500    EUR    Ringing in French
betclick.it    7,500    EUR
betclic.it    7,500    EUR
blue-efficiency.de    7,000    EUR
glue.co.uk    6,675    GBP
sparkling.eu    4,500    EUR
wio.eu    4,500    EUR
ichina.asia    3,500    EUR
2in1.ch    3,000    EUR
lastminutetravel.cn    3,000    EUR
luk.fr    2,750    EUR
industry.fr    2,500    EUR
sportwette.ch    2,500    EUR    Sports bet in German
x.fm    2,500    EUR
directv.in    2,500    USD
onlinethesaurus.co.uk    2,500    USD
boell.eu    2,500    EUR
freizeittipp.de    2,380    EUR    Leisure tip in German
golfen.be    2,250    EUR
tkm.eu    2,200    EUR
mmogame.eu    2,000    EUR
handball24.de    2,000    EUR
partyurlaub.de    1,800    EUR    Holiday party in German
flyonair.de    1,650    EUR
blu-ray.hu    1,600    EUR
kontrovers.de    1,550    EUR    Controversial in German
salairenet.fr    1,500    EUR    Net earnings/ salary in French
darlingmarket.nl    1,500    EUR
smarterenergy.co.uk    1,490    USD
video-forum.de    1,350    EUR
clasificados.ws    1,250    USD    Leaders in Spanish
podcast.fm    1,200    USD
chroma.us    1,100    EUR
challengecasino.eu    1,050    EUR
everestpoker.us    1,000    USD
chatsex.fr    1,000    EUR
o2-bar.de    1,000    EUR
parrainage.fr    1,000    EUR    Sponsorship in French
wein-praesente.de    1,000    EUR    Wine present in German
sammleruhren.de    1,000    EUR    Internet games in German
video-conferencia.es    900    EUR    Video conference in Spanish
trnd.nl    750    EUR
mijndate.nl    700    EUR
upgrading.me    700    USD
fundraise.me    675    USD    Fundraise in German

Other
pisos.net    150,000    EUR    Story in Spanish
rencontre.org    25,000    EUR    Meeting in French
voyance.net    25,000    EUR    Clairvoyance in French
charme.net    3,950    USD    Charm in French
crowdsource.net    3,500    USD
holiday.biz    3,000    EUR
restaurantes.mobi    2,527    USD
cayman.mobi    1,899    USD
feil.net    1,500    EUR
nudity.mobi    1,400    USD
durban.mobi    1,284    USD
consultant.mobi    1,111    USD
benelux.org    1,100    EUR
carta.info    1,100    USD
virginislands.mobi    1,075    USD
backgammon.mobi    1,051    USD
liability.org    1,000    USD
amarillo.mobi    950    USD
tse.mobi    600    USD

Predictive Domaining

Copyright-free books for domain development  17 Nov 2008, 6:22 pm

Performancing.com - Helping Bloggers Succeed

MakeUseOf.com Victim Of Domain Hijacking  3 Nov 2008, 6:34 am

MakeUseOf.com which is a very popular tech blog with over 20,000 RSS subscribers has become a victim of domain hi-jacking. The MakeUseOf domain is hosted through GoDaddy and somehow, the account was hacked where the perpetrator transfered the domain to a web hosting company in Dubai. Aibek who owns the domain recently stated:

We have absolutely no idea how this was achieved but we are currently in full contact with GoDaddy’s fraud department to get our legal property back. Obviously this is deeply embarrassing for us but we will not rest until the domain name is back in our possession. We have all worked too long and too hard to watch it all slip away like this.

MakeUseOf.com is an excellent resource that always makes the rounds of being read within my FeedReader. The speculation going around right now is that, a security hole was used inside of Gmail to retrieve the Gmail password which then gave the hijacker access to some other webmail. I hope Aibek is able to retrieve his domain and then on top of that, share the details on how this hijacking occurred.

What would you do if you were in Aibeks situation? Have you ever gone through a similar situation? Let me know in the comments.

Discovered via - Daily Blog Tips

Google Webmaster Central Blog

Google's SEO Starter Guide  12 Nov 2008, 11:55 am

Search Engine Journal

Local.com and Virgin Mobile Partner for Local Mobile Directory Service  12 Nov 2008, 10:20 am

Local.com and Virgin Mobile USA have partnered to rollout their Local Mobile on the Virgin Mobile USA network, which enjoys more than 5 milion customers. Local Mobile is an advertising supported mobile site that gives users access to local directory services and results for local businesses, products and services.
(more…)

Drop Dude

Enom drop catcher is available now  14 Nov 2008, 1:54 am

The Domains

PubCon On Effective Domain Strategies & Trademark Laws and Domains  13 Nov 2008, 3:15 pm

The Pubcon show, Webmaster World, is going on in Las Vegas this week.

There are some interesting sessions and some transcripts coming out of those sessions you can check out

The first one is on the topic of effective domain strategies.

The Panel was comprised of Jeremy Wright, CEO, B5Media; Jeff Libert, CEO of DirectoryCompany.com; Grace Della, CEO of Ten Golden Rules and Victor Pitts VP of Sales & Client Services for  Moniker.

The second panel was to discuss trademarks and domain names and the legal issues involved.

That panel was comprise of:

Deborah Wilcox, Partner, Baker & Hostetler LLP
Clarke Walton, Founder, Walton Law Firm
David Naffziger, President & CEO, BrandVerity, Inc.

In that session a pretty scary story of punchclock.com and the judgment, that one of the speakers was able to obtain against the former domain holder.

Check both of these out.

DNKitchen - Domain News

Domain Selling and ROI  11 Nov 2008, 8:53 am

I had a brief discussion about this topic on one of the domainer forums just the other day.  I believe it to be an important subject and a possible education opportunity for other domainers new and old.

What lead to the conversation was this.  I purchased a domain name for $150 and was willing to sell it for $180.  The comments that followed were, that’s not a high enough return on investment (ROI) for me or I wouldn’t sell it unless I could double my money.

Take that same domain name in two scenarios…

Example.com purchased for $150 and sold for $300, but say twelve months after initial purchase giving it a profit of $150 minus any fees.  It may have taken twelve months because they were looking for an end buyer, making several calls, sending many emails and maybe some regular mail trying to reach the right buyer.  Using this method you turn a 100% ROI over the course of one year.

or

Take that same domain name purchased for $150 and sell it within 30 days for $180 giving a smaller profit of $30 minus fees if any.  Lets take that money and do the same thing every month for one full year.  Your total profit at $30 a month would be $360 for the year which is a 240% ROI.  Also assuming you sold the domain name at a good value your buyer pool opens up tremendously, maybe even selling wholesale at these price points.

Which method is better?

Personally I would have to say the answer is both.  If you are running a domain name business you have to utilize both strategies to succeed.  As a business you have to continually turn your money bringing in enough new money to cover your monthly expenses.  While doing this you are also trying to find the right buyer for certain domain names.  An example from my personal collection, I own DryRoastedPeanuts.com, you better believe I am going to contact every peanut and snack company possible before I let this domain name go at wholesale pricing.  Now lets take that domain name with a slight variation like DryRoastedPeanutRecipes.com, my first thought would be to wholesal