Legal Theft?

They aren't trying to steal your domain - they are protecting their own trademarked business name. "smartdate" is a registered trademark with a domain of that name used since 2000.

Suggest you hire an attorney quickly if you want to claim "rights" on this.

kay

Hiring anyone to represent me is not a option at this point as this site is built to help me pay bills. I have had the domain now 4 years and invested time, software, effort and money in building the site up from nothing. I have done my best to be as thrifty as i could about building the site and finally starting to break even on it.

Why wait 4 years until i finally start going in a positive direction building traffic?

I understand copyright and the importance of protecting a copyright but if it was so important why wait 4 years?

They will profit from my time and effort for free.

From just a quick study, it appears that trademarked words cannot be common words, unless they are unrelated to the product (Like Apple - for computers). Apple was able to trademark that common word because they weren't actually selling apples.

So I think that you'd have a real chance at winning this if you chose to fight it. Because "smart date" is a phrase of common words, and it has everything to do w/ the product being presented. For instance, someone couldn't just come along and trademark the name "cheeseburger and fries", because that would put the rest of the burger joints out of business. Now they might be able to obtain the trademark, but they wouldn't be able to defend it in any litigation against another burger joint.

But that being said, my advice would then be to weigh the cost. If you're not really making much money w/ this site, then just let it go. It's not worth the effort. Or maybe you're making a halfway decent amount of money, then maybe consider just finding a new domain name, transfer everything over, and then duplicate your efforts. But if you're making good money, then this is definitely a winnable fight.



edit - also be aware that many companies out there like to flash their lawyer card, but then never really intend to use it. If you're brave enough you could force them to show more of their hand. Most that are serious will send you a letter in the mail. Was this notice an email or a letter?

Maybe you could change you domain name to the dating smarter or smarter dating
Then it should be okay
Just write and tell them you will cease to use their name and apologize it will save you a lot of money and heart ache. If you have a list for this site you can let them know of the name change or use a redirect for a while.

Wishing you the best of luck

They waited 4 years because they didn't know you were around until now. If they've had the name since 2000 they are not the ones in the wrong protecting it -- you are in the wrong for taking it.

Gary - you are right that common words can't be trademarked, but the way they are used is also a factor. SmartDate is a viable trademark as far as I can tell. Consider "Manpower". Common enough right? Tradmarked and has money backing it. There are more considerations to trademark than just the name. But here we have not only the same company name chosen (with the exception of the article "the"), it is exactly the same field of business and customers and viewers will be extremely easily confused about which entity is which -- and that will carry as much weight as the words used. This one is so close on all counts that no matter how innocent the rip off was - it's very likely to come across as an intentional infringement if it's allowed to go to suit.

I am not a lawyer nor do I play one on TV, but I think you need to either ditch out and do some fast apologizing for infringing on someone else's territory or grab a lawyer real fast.

thesmartdate.com 3/15/2006

10/31/2000

You FLUNKED the very first test! SO, even if they DIDN'T register the trademark, they have a case. and YOU stole THEIR traffic, and site NAME.



They are NOT stealing your domain now! In a sense, YOU stole THEIRS!!!!! They claim to have a trademark. If they do, they are REQUIRED BY LAW to pursue things in this manner. If they don't, they could LOSE the trademark!

Your domain technically is EXACTLY the same! Articles generally DON'T COUNT as to meaning except that "a/an" implies there are many such domain names, and "the" implies there is one, or this is THE first, which we all know is NOT true!

As for what you can do? FIRST check to see if there IS such an attorney, etc... I believe there is a law against such impersonations. If there is, tread carefully, as they may have a lot invested already. You can try to point out differences and try to defeat this on the basis that you are not taking away business. It is really a LOUSY argument, since you are both going after the SAME market! You can TRY though. But ICANN basically says you have lost the case if they have a previous trademark, and maybe even if they had NO trademark.

As for doing this 4 years after the fact? WHAT! Are they supposed to check THOUSANDS of permutations every minute of the day or something? That is not only impractical, but against EVERY TOS I know of! GRANTED they could try actually going to the sites, but that means testing maybe 2 sites a minute. I believe the trademark rules statute of limitations STARTS upon discovery!

BTW IANAL

Steve

Where are you located BP72. I know sign language - but that doesn't help if you live in the states.

threats, threats, threats and threats when i am trying to be accommodating.

It is all about doing the right thing... just offered up i have another very similar domain.

I would rather go through it all now than waste any time building another site up.

So i might lose 2 domains but now looking at it from their point of view that i was unable to see until the feedback here. Acknowledgement of that point of view and sincere apology explaining my point of view and my goal at the time when buying the domain... well.. .. they are really being cool about everything.

Kay King and Seasoned.... thank you..

I did a quick check on the Wayback Machine. The domain has been around since 1998, but there are no entries after 2007. The last entry:

MARKEM Corporation

Shows the domain was selling some sort of "date" code software? On the site it says:

MARKEM Corporation provides stand alone digital coding systems to completely networked solutions, backed by over 90 years of knowledge and experience.



According to the trademark search, the registered the trademark back in 2001, but under the following:

Goods and Services IC 009. US 021 023 026 036 038. G & S: electronic over printers for printing batch codes, best before end dates, bar codes and/or variable information directly onto packaging materials, labels and products. FIRST USE: 19921000. FIRST USE IN COMMERCE: 19930800

Owner (REGISTRANT) Markem Corporation CORPORATION NEW HAMPSHIRE 150 Congress Street Keene NEW HAMPSHIRE 03431



According to Whois, the domain has been registered to the same company since October 2000 - the company is in France:

registrant-firstname: Smartdate
registrant-lastname: Administrator
registrant-organization: Smartdate SA
registrant-street1: 14 rue Vivienne
registrant-pcode: 75002
registrant-city: Paris
registrant-ccode: FR
registrant-phone: +33.1772712884
registrant-email:



I am no expert, but from what I see is the domain has either been off line between Jan. 2007 and now (no other entries in Wayback since Jan 07) or they have excluded themselves from Wayback somehow...

Or, they decided just recently to open this "dating" website.

I am not a lawyer, but I would take this info to yours. Even though they have a TM, it seems it's listed for something MUCH different than they (or you) do now.

Mike

that totally sucks major monkey nuts. good luck to you.

Kay - and consistently... very good point.

MikeAmbrosio - thanks.. lets just say my new mission in life is to learn and understand all this copyright and trademark stuff asap. :O)

Everywhere i have worked i have always had someone or a department of legal people that took care of contracts and any liability assessment before anything reached me. I just did the work. I bought these domains to learn and tried to pick the domains from keyword trend searches in what remains consistent in traffic.

With what i have learned so far it seems that i still have 1 if not 2 domains that were a very bad idea to buy. Not real sure what to do with them at this point.

I wanted to learn.. i am learning.. and it sucks sometimes but there is no book, blueprint or how to guide that will cover everything i want to do. Much less how to do all the ideas i have.

I just have to get out there, do it, get knocked down a few times, get up and go at it again.

I do greatly appreciate the insightful people that have responded to this thread and have a little hope my "learning" will be less painful if i post my questions on this forum. At the least... i will learn.

BP72,

People that lack some fidelity in their hearing, while they are learning to talk and learning words, often don't speak in quite the same way as the average hearing person. It CAN be considered an ACCENT. And MANY people will then know that, at least at some point in your life prior to the age of say 5, you had profound hearing difficulties. It is THAT distinct.

Don't be annoyed. Be HAPPY that you at least got to THAT point. SOME people practically THINK they can talk, and they make noise and move their lips, but it is simply annoying to hearing people, and not understandable.

If you can hear a normal male register, and speak understandably, you are FAR better off than MOST deaf people. Some people pay a LOT of money for cochlear implants and hope to one day be maybe where you are. And the deaf community may look at THEM as turncoats, because they are trying to get out of the deaf community. 8-(

Steve

Seasoned, you have explained my world quite well and it sounds you have experience as you are the second person in my life to express some key points that most completely overlook. First loss of hearing for me was at 4 years old... 106 fever. When you start off with less the natural decline seems to roll a little bit faster down that hill.

It is VERY annoying as most communication takes place over the phone and the simplest things can be quite unnecessary difficult and insulting. Use a TTY service and i am looked down upon as i can talk. Not wearing my hearing aids it looks like i am in denial. Wearing my hearing aids people talk to me in slow motion as if it helps. If i recommend a speech pathologist or speaking exercises for them to speak clearer then i am a jackass. For some reason i should be thankful for being treated as if i should wear a crash helmet if unsupervised.

I cant count the times i have been tested over and over by the same people as, "there is no way i can talk as well as i do and have the hearing loss i have", blatantly accusing me of fraud as if they are some sort of authority on my life since they are a class from graduating college and work the volume control on a oversized meat cooler. The fact there are a little over 30 years of the same exact hearing test done with the same results in both ears with the same consistent decline in one ear means nothing.

Voc rehab and disabled services were completely useless at best as a kid. Not being able to hear 80% of my teachers all i did was get in trouble as i was not eligible for tutors, notes or aid because i talked too well. Although i had documented years of speech classes to communicate in English a foreign language was required to graduate and sign language at the time was not close to to being considered a language.

To this day any disabled services are pretty much useless as i seek no money, no free education, no free ride but rather someone i can have help me with student loan representatives that keep liquidating my checking account and just communicating with them. Voc Rehab no joke basically said i make $1,000 too much... have a nice day. The numerous documented blatant failures disabled services has demonstrated in just the past 5 years is enough to make someone think that the system truly does actively encourage people to only do enough to get by.

I graduated college with no help from any disabled service despite consistent requests and never asked for a dime. I jumped through he flaming hoops and did the hearing tests over and over just as i have always done and finally came to accept that ambition is the problem. If i gave up i could ride it out for the rest of my days. If i keep pushing and learning they will do nothing. I think i might of met one lady finally that might help but i am not going to get my hopes up.

The real kicker are deaf people. I know quite a few wonderful deaf people... in Orlando. In the town i live... in 5 years.. i have only met 1 deaf person. The kicker comes in with my sign name.. a cupped B behind the ear. Hearing people say, "Wow that is so cool. The first letter of your name like that by your ear.. They must know you are hard of hearing.".. I dont have the heart to bust their bubble and explain the slap in the face my sign name is as the only thing my sign name signifies is i still try to live in the hearing world. A turncoat would be a upgrade.

Annoyed??? Yes, daily as much of a understatement as that is. Thankful for the small problems i have as i know they could be worse. Daily contemplate the scales and balance of life and if my problems were one way or another tilted slightly. Would I have a foot firmly in one world or the other? Or is the tip of a toe touching each world about as good as it gets?

Better off than most? The grass will always be greener and the view might seem to be better often anyplace than were we are in life. Far too often the view and weather are the primary concern, more important than anything else in the world, quite simply should be... are you truly alone in that place or not? Even in the worst of storms you can dance in the rain and have the time of your life with someone. If you dance in the rain alone the only thing to follow will be a public intox ticket. :O)

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