Ok, Seriously - A Law Suit? Are they having a giggle?!

by Simon Nicholls 148 replies
Hi All,

I've just had an email from a lawyers office in the USA, stating that my domain NeverGetYourselfLost.net is in violation with some law. Apparently, it's nearly the same as Hertz's "Neverlost" trademark . . .?!?!

Are they having a laugh? Or am I seriously in the wrong? My domain sounds nothing like the above trademark, nor do I sell any Hertz products! It's an eBay site!

Below is a copy of the file they sent me, I've replied to them saying if they want the domain, then they can buy it off of me for a price that I seem right!



LAW OFFICES
HOWARD, PHILLIPS & ANDERSEN


C

E-Mail:

September 30, 2008



VIA EMAIL () AND
FIRST CLASS MAIL

Simon Nicholls

UNITED KINGDOM

RE: NEVERGETYOURSELFLOST.NET — Infringement and Dilution of Hertz
Trademarks

Dear Mr. Nicholls:

This law firm represents The Hertz Corporation (“Hertz”) on intellectual property and
trademark enforcement matters. Hertz takes policing and enforcement of its intellectual property
rights seriously.

Hertz is a worldwide corporation, specializing in the leasing and renting of automotive
vehicles. NEVERLOST® is a duly registered trademark that belongs to Hertz. Hertz first began
using NEVERLOST® in 1995 and has been using the mark continuously since that time as the
name for Hertz’s in-vehicle navigation system, which uses state-of-the-art GPS technology and
digital mapping to provide driving directions and other information to automobile drivers.
NEVERLOST® is a famous and distinctive trademark that is used by Hertz worldwide and is
associated by consumers exclusively with Hertz and Hertz’s navigation system. The domain
name for Hertz’s official website is neverlost.com.

Your recent registration of the domain name nevergetyourselflost.net, a domain name that
is confusingly similar to Hertz’s world famous NEVERLOST® trademark, and use of the
domain name to operate a commercial website advertising GPS-related goods and services,
violates Hertz’s trademark rights. The Anticybersquatting Consumer Protection Act (“ACPA”)
provides for statutory damages of up to $100,000.00 per domain name when a famous trademark
is incorporated in a domain name without authorization from the trademark owner. See 15
U.S.C. § 1117(d). Hertz has obtained injunctions and judgments against those who have used its
trademarks in Internet domain names without authorization. See, e.g., The Hertz Corp. v. Names
for Sale, Civ. No. 00-734-A (E.D.Va. Aug. 10, 2000) (permanently enjoining defendant’s use of
Simon Nicholls
September 30, 2008
Page 2



neverlost.com, hertzneverlost.com, and hertzmagellan.com and ordering transfer to Hertz).
Under the ACPA, moreover, a United States court has the power to enter orders concerning
domain names that incorporate famous trademarks that have been registered in violation of the
ACPA without the registrant’s presence or participation.

Hertz, accordingly, asks that you make no further use of the domain name and transfer
your registration to Hertz. If you have not done so by October 10, 2008, we will infer that you
are unwilling to resolve this matter voluntarily and will advise Hertz of its remedies.

Cancellation of the registration will not resolve this matter. If you attempt to cancel the
registration, Hertz will have no choice other than to immediately file suit for violation of the
ACPA. If suit is necessary, we will advise Hertz to seek to recover from you all costs and
expenses incurred by Hertz in recovering the domain name from any subsequent registrant, as
well as actual and statutory damages.

This letter is without prejudice to the rights of Hertz, all of which are expressly reserved.

Very truly yours,






Any help of advice would be appreciated!
#main internet marketing discussion forum #giggle #law #suit
Avatar of Unregistered
  • Profile picture of the author Simon Nicholls
    Found this link after doing a google search about these people.

    Howard, Phillips & Andersen
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141767].message }}
    • Profile picture of the author JohnMcCabe
      Originally Posted by Ezy Dollar View Post

      Found this link after doing a google search about these people.

      Howard, Phillips & Andersen
      I'm not sure who is "having a giggle" here, but I doubt it's Hertz.

      The supposed link to the law firm lands on a "VW Sucks A$$" forum, and the link in your sig is dead.

      A court may look at such behavior, and determine that you did indeed try to cash in on Hertz' trademark.

      Whether they have a case or not, they have deep enough pockets to make things miserable for you. Best case is they offer you something for the domain. Whatever it is, I would take it.

      And if you want to keep any credibility here, change those links...
      {{ DiscussionBoard.errors[141835].message }}
      • Profile picture of the author Dan C. Rinnert
        Originally Posted by JohnMcCabe View Post

        I'm not sure who is "having a giggle" here, but I doubt it's Hertz.

        The supposed link to the law firm lands on a "VW Sucks A$$" forum, and the link in your sig is dead.
        That forum comes up in Google as #2 on a search for "Howard, Phillips & Andersen" and the discussions there are all about this firm. The title of the page in that forum is "Howard, Phillips & Andersen" so when he put in the link, WF automatically changes it to the title of the webpage.
        Signature

        Dan's content is irregularly read by handfuls of people. Join the elite few by reading his blog: dcrBlogs.com, following him on Twitter: dcrTweets.com or reading his fiction: dcrWrites.com but NOT by Clicking Here!

        Dan also writes content for hire, but you can't afford him anyway.
        {{ DiscussionBoard.errors[141854].message }}
  • Profile picture of the author AgileHosting
    Hire thyself a solicitor.

    Bailey
    Signature

    Guacamole.

    {{ DiscussionBoard.errors[141777].message }}
    • Profile picture of the author Tuzic
      Banned
      hi,

      yes seek some legal advise against it like free advise & google search them, be thorough.
      {{ DiscussionBoard.errors[143193].message }}
  • Profile picture of the author Simon Nicholls
    But do I really need to? Do they have a case?

    The website never even has any visitors! I've not marketed it at all.
    As far as I'm concerned the domain is not infringing any slogans?!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141782].message }}
    • Profile picture of the author AgileHosting
      Originally Posted by Ezy Dollar View Post

      But do I really need to? Do they have a case?

      The website never even has any visitors! I've not marketed it at all.
      As far as I'm concerned the domain is not infringing any slogans?!
      It doesn't matter whether they have a case, or what your opinion is. Telling them "as far as I'm concerned the domain is not infringing any slogans" is not going to make this go away. Rather it will just cause them to escalate.

      Welcome to the world of 'legal bullying' ... fun stuff, huh! :rolleyes:

      The most efficient and most fair way of dealing with this is by consulting with a solicitor. He or she can offer you a professional opinion of whether or not your domain name may be infringing; whether they may have a case; what your options are; and what they will cost.

      It may be cheapest and easiest to just surrender the domain name to them.

      By the same token if your site is related to online auctions and has nothing to do with rental cars, and you can show that your domain name is pertinent to the site content (online auctions) thereby giving it its own stand-alone claim ....... well then maybe it's worth fighting for.

      But no, this is not a joke, and you can get in way over your head really fast.

      These kinds of lawyers, this is all they do. They troll the internet far and wide, looking for anything remotely related to their clients' keywords or concepts, and they go after it. Every minute they spend is billable to the corporation. So think about it - it's to the lawyer's advantage to go after every remote possibility, because doing so brings in more fees from the client.

      The majority of small operators are going to just roll over and surrender their site, domain, whatever, because it costs too much to defend against such a claim. The corp's lawyers know that. That's what makes this technique so successful.

      Anybody can sue you for anything at any time. This is the time, right now, to get this issue nipped in the bud, before it turns into a true lawsuit. Lawsuits are expensive. Negotiation at the C&D stage is cheap. To make sure that you get the most fair deal possible, get a solicitor.

      Bailey
      Signature

      Guacamole.

      {{ DiscussionBoard.errors[141833].message }}
    • Profile picture of the author askloz
      No, they don't have a case, if they wanted to protect their arse, they would of registered other similar names, but yours sounds NOTHING like theirs and even if it did, they still have no case, trademarks don't cover this, the trade mark only covers the actual name.

      Originally Posted by Ezy Dollar View Post

      But do I really need to? Do they have a case?

      The website never even has any visitors! I've not marketed it at all.
      As far as I'm concerned the domain is not infringing any slogans?!
      Signature
      {{ DiscussionBoard.errors[141979].message }}
    • Profile picture of the author Buster Iversen
      Originally Posted by Simon Nicholls View Post

      But do I really need to? Do they have a case?

      The website never even has any visitors! I've not marketed it at all.
      As far as I'm concerned the domain is not infringing any slogans?!
      It is irrelevant if they have a case or not, the important part is if you can afford to go to court over it or not.
      Apart from that it is not particular bright to ask for legal advice on a forum, or respond to legal letters without legal advice for that matter.
      {{ DiscussionBoard.errors[251799].message }}
      • Profile picture of the author Simon Nicholls
        Originally Posted by Buster Iversen View Post

        It is irrelevant if they have a case or not, the important part is if you can afford to go to court over it or not.
        Apart from that it is not particular bright to ask for legal advice on a forum, or respond to legal letters without legal advice for that matter.
        Yeah well, you learn from your mistakes!

        If I can't afford legal advice, I can't get legal advice can I? Even if I went to the Citizens Advice Burearu, I'd only get 30 minutes before I need to start paying.

        If there is a next time, well - maybe I'd go about it in a different way. But unfortuantly a $7.99 domain isn't worth going to court over . . . as said before, if the site was pulling in $300 a week or whatever, then maybe, just maybe it would be different.

        Simon.
        Signature
        Your Online Golfing Resource
        My Current Website Auctions
        I'm new to the IM world, so please . . . go easy on me!
        {{ DiscussionBoard.errors[252143].message }}
        • Profile picture of the author davezan
          Originally Posted by Simon Nicholls View Post

          If I can't afford legal advice, I can't get legal advice can I?
          Depending on how relatively easy or difficult the case might be, some lawyers
          or solicitors might give a free initial consultation. Not everyone might give any
          surefire answer if they're not given the full specifics, and if they think it's not
          easily answered in an email.

          Look on the bright side: you could've been made an example...or worse. Some
          got lucky, but those that didn't weren't so.

          Good for you if you listened to a few who told you to fight and later won. But
          if you lost, what will you maybe do to them?
          Signature

          David

          {{ DiscussionBoard.errors[252449].message }}
  • Profile picture of the author Asher
    Man... that's scary... I don't know what to say to something like that
    but keep us updated! Hope it settles down quickly >_<
    Signature
    {{ DiscussionBoard.errors[141792].message }}
    • Profile picture of the author RyanLeisure
      They expect you to just transfer it to them? Haha, what a bunch of jokers. That sounds pretty shady to me. I'd look into some legal advice and find out if they have a leg to stand on. You might be able to make out with a decent buyout of this thing if they really want it.
      Signature

      Designer, marketer, Wordpress guru.

      {{ DiscussionBoard.errors[141812].message }}
  • Profile picture of the author Simon Nicholls
    The thing I'm really confused about is that Neverlost® (Better put the ® in!) and nevergetyourselflost.net are two completely different phrases! I can understand if I had neverlost.net or whatever, but there are 2 extra words!

    If it was really that much of an issue, why didn't Hertz buy all of the domains that they think will violate any terms!

    If they are going to sue me, then I have no choice but to transfer the domain over. However I've replied that if they want it, they can buy it off of me!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141805].message }}
    • Profile picture of the author Dan C. Rinnert
      Originally Posted by Ezy Dollar View Post

      If they are going to sue me, then I have no choice but to transfer the domain over. However I've replied that if they want it, they can buy it off of me!
      That was a bad move. That only helps reinforce their claim that you are a cybersquatter.

      Had you not done that, you might have had a better chance. NeverLost and NeverGetYourselfLost don't seem to be confusingly similar to me. NeverLost is memorable, whereas NeverGetYourselfLost isn't as much so. I can't imagine people confusing the two.

      Of course, your best bet is to discuss it with an IP attorney.
      Signature

      Dan's content is irregularly read by handfuls of people. Join the elite few by reading his blog: dcrBlogs.com, following him on Twitter: dcrTweets.com or reading his fiction: dcrWrites.com but NOT by Clicking Here!

      Dan also writes content for hire, but you can't afford him anyway.
      {{ DiscussionBoard.errors[141816].message }}
    • Profile picture of the author Thomas Dean
      I think it's a good idea to remove their email address from your post.
      {{ DiscussionBoard.errors[141817].message }}
  • Profile picture of the author Gary McCaffrey
    Think they might go after these guys too?

    Neverlost - Home
    {{ DiscussionBoard.errors[141823].message }}
    • Profile picture of the author jensrsa
      Originally Posted by Gary McCaffrey View Post

      Think they might go after these guys too?

      Neverlost - Home
      Probably with less success as they do not sell GPS.

      I was in a similar situation last year (in South Africa) but I think the general principle remains the same.

      Neverlost and Nevergetyourselflost are "confusingly similar" because both involve GPS and the one is a trademark.

      EzyDollar, I agree that you should see a lawyer but you will probably have to transfer the domain without compensation.

      Maybe I'm just sceptical but honestly, you registered the domain to try and cash in on the Neverlost trademark, didn't you? Don't answer as everything you say may be used against you.

      Jens
      {{ DiscussionBoard.errors[141973].message }}
      • Profile picture of the author jensrsa
        BTW, domain names and trade marks can be a great business opportunity. Here's and email a client of mine received recently. His domain is imbokodo.com
        Asia Network is the company of internet services that the domain registration is one of the major online style of our service range. Now we have something need to confirm with you. We hope you to cooperate with us. On 2008-09-22, we received an application from one person named “Kall Fisher” who wants to apply the following domain names and internet brand:
        1. Domain Name
        imbokodo.asia imbokodo.hk imbokodo.in imbokodo.cn
        2. Internet Brand

        imbokodo

        According to our investigation, we found that domain names have relevance to your company’s name and trademark, so we send this email for you to confirm it. We are dealing with this affair in these days, so we wish to get the confirmation and the assent of your company. If Karl Fischer doesn’t belong to your company and you don’t authorize him to register these domains, Pls contact with me asap in order to prevent some guy from abusing your trademarks and the company names.
        ...

        obviously hoping to sell him these domains

        Jens

        {{ DiscussionBoard.errors[141992].message }}
    • Profile picture of the author sylviad
      Originally Posted by Gary McCaffrey View Post

      Think they might go after these guys too?

      Neverlost - Home
      Good catch, Gary. Good question. These guys are using the EXACT name, and the product is unrelated. Maybe they get away with it because they are in Sweden and not the US. (extension .se)

      PJS...

      The thing is, if you haven't started marketing the site yet what's the big deal? Just let it go. It isn't worth the trouble - hassles - legal fees, etc. to fight them. You have to admit that Hertz is a mighty big organization with lots of power. It would be differnt if you'd had the site for awhile and was making great progress with it, getting lots of attention... but you aren't.

      Let them have it and move on. Is it really worth your time to go through legal battles or even to bother communicating back and forth, which could take a lot of writing? Put your time to better use and get yourself a better domain name.

      Sylvia

      Edit: By all means, check into the so'called legal firm, see if they are legit and that the issue is real, as Dixie explains. If that all turns out to be real, do as I say and give them the domain. Otherwise, ignore them and carry on with the domain.
      Signature
      :: Got a dog? Visit my blog. Dog Talk Weekly
      :: Need articles, ebooks written? - Award-winning Journalist is taking new projects. Warrior Discounts!
      {{ DiscussionBoard.errors[144221].message }}
  • Profile picture of the author Simon Nicholls
    Unfortunatly I can't afford any kind of attorney. If they want the domain, then they can have it. It cost me $10 and hasn't made me any money whatsoever!

    But I'm just confused, it has no link to the trademark at all.
    I can think of so many sites that could potentially violate a law!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141827].message }}
    • Profile picture of the author JasonKing
      Originally Posted by Ezy Dollar View Post

      Unfortunatly I can't afford any kind of attorney. If they want the domain, then they can have it. It cost me $10 and hasn't made me any money whatsoever!

      But I'm just confused, it has no link to the trademark at all.
      I can think of so many sites that could potentially violate a law!
      That didn't take much ...
      {{ DiscussionBoard.errors[142225].message }}
  • Profile picture of the author Simon Nicholls
    John,

    Unfortunatly, I did not know when I posted the link to the forum that it would shorten like that.

    As for the sig, it's not my site anymore - I've not posted here for a while and need to update it!

    I'm emailing them now, saying that I'll transfer the domain to them. It's not worth the hassle.

    Simon.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141850].message }}
    • Profile picture of the author KarlWarren
      While you're at it... I'd keep an eye out for a letter Bernie Ecclestone.
      Formula1 is also a trademark

      I doubt they'd go after you though... lol.
      Signature
      eCoverNinja - Sales Page Graphics & Layout Specialist
      {{ DiscussionBoard.errors[141868].message }}
      • Profile picture of the author Dan C. Rinnert
        There are at least 8 other TLDs, including .COM, available for nevergetyourselflost. Somebody at Hertz should hurry up and register all those. It will save them a bundle on future legal expenses.
        Signature

        Dan's content is irregularly read by handfuls of people. Join the elite few by reading his blog: dcrBlogs.com, following him on Twitter: dcrTweets.com or reading his fiction: dcrWrites.com but NOT by Clicking Here!

        Dan also writes content for hire, but you can't afford him anyway.
        {{ DiscussionBoard.errors[141889].message }}
      • Profile picture of the author AgileHosting
        Originally Posted by KarlWarren View Post

        Formula1 is also a trademark

        I doubt they'd go after you though... lol.
        Agreed. F1 (and open-wheel in general) has been wringing their hands trying to figure out HOW to cash in on a piece of the pie that NASCAR has somehow found, but open-wheel hasn't.

        And it's really a shame, because open-wheel racing is outstanding quality racing. But they need all the visibility they can get ......... and they know it.

        Bailey
        Signature

        Guacamole.

        {{ DiscussionBoard.errors[141912].message }}
    • Profile picture of the author Kim Standerline
      You probably don't need to transfer it, just tell them you'll not use it at all (that's all they usually want)

      I registered a name with ebay in it a couple of years ago and got the dreaded lawyers email lol

      You could tell them you want what u paid for it, but is it worth it!

      This is legal bullying, but unless your madly passionately in love with the name, just let it die. Otherwise its just not worth the hassle.

      Kim

      BTW, never ever take legal advice from a forum, liable to jump up and bite u in the ass






      Originally Posted by Ezy Dollar View Post

      John,

      Unfortunatly, I did not know when I posted the link to the forum that it would shorten like that.

      As for the sig, it's not my site anymore - I've not posted here for a while and need to update it!

      I'm emailing them now, saying that I'll transfer the domain to them. It's not worth the hassle.

      Simon.
      {{ DiscussionBoard.errors[141952].message }}
  • Profile picture of the author mr2monster
    I'd call their bluff... sounds scammy to me.
    {{ DiscussionBoard.errors[141855].message }}
    • Profile picture of the author JohnMcCabe
      Originally Posted by Ezy Dollar View Post

      John,

      Unfortunatly, I did not know when I posted the link to the forum that it would shorten like that.

      As for the sig, it's not my site anymore - I've not posted here for a while and need to update it!

      I'm emailing them now, saying that I'll transfer the domain to them. It's not worth the hassle.

      Simon.
      Originally Posted by Dan C. Rinnert View Post

      That forum comes up in Google as #2 on a search for "Howard, Phillips & Andersen" and the discussions there are all about this firm. The title of the page in that forum is "Howard, Phillips & Andersen" so when he put in the link, WF automatically changes it to the title of the webpage.
      Excuse me a moment while I wipe the egg from my face...

      I jumped to a conclusion, and I apologize. I saw a post about a possible lawsuit regarding a GPS trademark, about a site auctioning GPS related items. A link that looked like it led to a law firm led to an automotive forum with a provocative domain name, and the sig link (also auto related) came up as a dead link.

      Since the glove don't fit, I must acquit...

      Simon, sorry I doubted you.

      Dan, thanks for showing me were I went wrong.
      {{ DiscussionBoard.errors[141875].message }}
  • Profile picture of the author Simon Nicholls
    I see Mr Ecclestone at my work on a weekly basis, he won't be a problem! ;-)

    I just hope all this will go away! At the moment, I'm getting a little tired of getting into trouble!

    Anyone got $100,000 they can give me?!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141876].message }}
    • Profile picture of the author Killer Joe
      I'm not a lawyer...don't even play one on the internet, so this is NOT legal advice, just food for thought.

      That Trademark "Neverlost", as far as Hertz is concerned only applies to:
      International Class: 039

      "vehicle rental services containing an on-board navigation system as a feature thereof"
      --------------------

      In light of that, the same "Neverlost" is also a valid Trademark for the company GEA Neverlost HB out of Sweden which holds that Trademark for:

      International Class: 008

      Hand operated tools and implements, namely, carving knives for household use, multiple function folding pocket tools, and folding knives; cutlery; side arms, namely, hunting knives; razors.
      --------------------

      Again, this is not legal advice, but Trademarks are for protecting companies from confusion in the same marketplace. Unless the look, the colors, design, and feel are the same, you can have the same Trademark 'name' used in different industries.

      They are not universal in nature such that one industry can prevent another industry from using certain names. This holds true unless the name is a 'made-up' name using a combination of letters never considered as a word prior to the Trademark. The word "never" and the word "lost" have been around for a long time and don't hold special status even combining them as "neverlost".

      This doesn't mean that a company can't go after you for Trademark infringement if they want to protect thier name. I would guess that if a brush company invented a bristle brush with very small soft bristles and wanted to use the name "Microsoft" as the sole name for that product they would be in for a very expensive legal battle.

      If your purpose is distinctly different from Hertz's, i.e. you've invented a hat with a strobe light on it, as an example, Hertz has no valid claim to that domain, or even your wanting to use the Trademark "Neverlost" with unique artwork.

      Now whether or not you choose to spend the money to fight this notice is up to you.

      As a side note, I noticed the law firm of record for Hertz representing the Trademark is not the same firm as who you got the letter from. This might not mean anything as Hertz may have changed law firms.

      Don't know if this helps...

      KJ
      Signature
      {{ DiscussionBoard.errors[141940].message }}
  • Profile picture of the author Simon Nicholls
    Exactly!

    If it was really that important to them, why didn't they buy them all up?!

    I had never even heard of their GPS range before tonight, I never even knew they did GPS systems!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141894].message }}
  • Profile picture of the author Gene Pimentel
    This happens all the time in the domain industry. This is NOT a scam or hoax. The worst thing you can do is ask them to buy it from you. That only provides evidence that you are trying to make money on their (supposed) trademark. Here's the kicker: They have to prove that you registered the domain in "bad faith". In other words, to capitalize on their trademark. A few questions to ask yourself: Did they own the trademark before you registered the domain? Are you using it in any way that could perceivable confuse a visitor that you are associated with the trademark owner? If both questions are "no", you're likely safe. I'm not a lawyer, and this is not legal advice. It's just my experience in dealing in the domain trade for 5+ years. In many cases, it's a scare tactic.
    {{ DiscussionBoard.errors[141901].message }}
    • Profile picture of the author Dan C. Rinnert
      Originally Posted by Gene Pimentel View Post

      This happens all the time in the domain industry. This is NOT a scam or hoax. The worst thing you can do is ask them to buy it from you. Here's the kicker: They have to prove that you registered the domain in "bad faith". In other words, to capitalize on their trademark. A few questions to ask yourself: Did they own the trademark before you registered the domain? Are you using it in any way that could perceivable confuse a visitor that you are associated with the trademark owner? If bot questions are "no", you're likely safe. I'm not a lawyer, and this is not legal advice. It's just my experience in dealing in the domain trade for 5+ years.
      It's too late for Simon now, but if anyone else ever encounters a similar situation, a good resource is the EFF.

      Here's a link from their site with some useful information:
      Trademark: Domain Names - Internet Law Treatise

      Notably, this seems to confirm what you (i.e., GP) has said. The ACPA was designed to create "a civil action against cybersquatters, where the cybersquatter had a bad faith intent to profit from the registration of a domain name, and the domain name is either a trademark or identical or confusingly similar to a famous or distinctive mark." Emphasis mine.

      Following that definition is this line: "A belief that use of the domain name was a fair use will defeat the required bad faith."

      I'm no lawyer either but, based on that information, in my non-lawyerly opinion, I think Simon could have won this one. He admits to not even knowing Hertz had GPS offerings (I didn't either; I've never heard of NeverLost before today), so that would seem to suggest that he did not register the name in bad faith or to profit by Hertz's use of their mark or to divert consumers from their site to his.
      Signature

      Dan's content is irregularly read by handfuls of people. Join the elite few by reading his blog: dcrBlogs.com, following him on Twitter: dcrTweets.com or reading his fiction: dcrWrites.com but NOT by Clicking Here!

      Dan also writes content for hire, but you can't afford him anyway.
      {{ DiscussionBoard.errors[141913].message }}
  • Profile picture of the author Jack Humphrey
    They're just bullying you. They have to prove that not only does the name of your domain confuse the market, but that you are in a competitive market. Neither applies.
    {{ DiscussionBoard.errors[141904].message }}
  • Profile picture of the author Simon Nicholls
    Well I've already said that I am willing to transfer the domain over, but have asked if there is any financial gain for me.

    To answer your questions, they did own the trademark before me, I registered the domain last month. To answer the 2nd question, of course I didn't!

    Simon.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141906].message }}
  • Profile picture of the author Simon Nicholls
    Jack,

    They maybe bullying me, but I don't have the money to go to court if they do decide to sue me!

    Simon.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141907].message }}
  • Profile picture of the author valerieSONORA
    This sounds like a case of bullying. Like if I want a domain, just get lawyer to write a scary letter so the person will give it to me just to avoid any hassle.

    If there are 8 other nevergetyourselflost domain names that are not registered, they don't have a leg to stand on. Point that out to them. Since neverlost and nevergetyourselflost isn't even close, they don't have a leg to stand on.

    Everyone is saying, get a lawyer, yeah that would be best, but the guy said he can't afford a lawyer. So get yourself a lawyer advice won't work unless there is a lawyer willing to take the case free.

    Personally, I would either 1) offer to sell it to them at a very profitable price or 2) tell them about all the other unregistered domains, the fact that the domain isn't close to the registered trademark, but if they still feel like throwing away thousands of dollars on a frivolous case, go ahead.

    Even if they sue, it will cost them a minimum of several thousands of dollars. The likely scenario is an annoyed judge would throw it out of court. The worst case scenario is you lose the domain which was a whopping $10. Even if you lost, you came out ahead financially. That domain will do nothing for them and they spent thousands of dollars to get it.
    Signature

    siggy taking a break...

    {{ DiscussionBoard.errors[141916].message }}
    • Profile picture of the author Dan C. Rinnert
      Originally Posted by annoyedgirl View Post

      Personally, I would either 1) offer to sell it to them at a very profitable price...
      In which case, you've lost your case because you've just proved "bad faith" for them.

      Even if they sue, it will cost them a minimum of several thousands of dollars. The likely scenario is an annoyed judge would throw it out of court. The worst case scenario is you lose the domain which was a whopping $10. Even if you lost, you came out ahead financially. That domain will do nothing for them and they spent thousands of dollars to get it.
      I'm sure that Hertz has several thousands of dollars to spend.
      Signature

      Dan's content is irregularly read by handfuls of people. Join the elite few by reading his blog: dcrBlogs.com, following him on Twitter: dcrTweets.com or reading his fiction: dcrWrites.com but NOT by Clicking Here!

      Dan also writes content for hire, but you can't afford him anyway.
      {{ DiscussionBoard.errors[141921].message }}
    • Profile picture of the author JohnMcCabe
      Originally Posted by annoyedgirl View Post

      Even if they sue, it will cost them a minimum of several thousands of dollars. The likely scenario is an annoyed judge would throw it out of court. The worst case scenario is you lose the domain which was a whopping $10. Even if you lost, you came out ahead financially. That domain will do nothing for them and they spent thousands of dollars to get it.
      You may be right about a reasonable judge throwing it out. Two problems - there are too many unreasonable judges, and the letter indicates that the firm starting the row have already chosen a venue to pursue this. If it were me, I would definitely choose a venue I'm sure will be favorable.

      And if he straight-up lost, he could be on the hook for those thousands of dollars in legal fees, in addition to any damages awarded - and the $10 registration fee.

      I think he's made the right decision, bypassing the urge to tilt at windmills for a domain that isn't commercially important to him.
      {{ DiscussionBoard.errors[141927].message }}
  • Profile picture of the author Simon Nicholls
    Some very kind words there Annoyedgirl!

    Thank you very much, I've taken your advice onboard.

    Just out of interest, what price would you call "Highly Profitable"?

    Simon.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141920].message }}
  • Profile picture of the author valerieSONORA
    Sounds like letting the bullys win. So if someone has deep pockets they can do whatever they want? Not in my world. I don't care if they are effing billionaires. Who cares how much money they have? Let them go for it. If people give up this quickly, I'm going to start writing such letters and get a bunch of great domains myself. "Here take the domain, just please, please, don't sue, whatever you do, please!"
    Signature

    siggy taking a break...

    {{ DiscussionBoard.errors[141938].message }}
    • Profile picture of the author AgileHosting
      Originally Posted by annoyedgirl View Post

      Sounds like letting the bullys win. So if someone has deep pockets they can do whatever they want? Not in my world. I don't care if they are effing billionaires. Who cares how much money they have? Let them go for it. If people give up this quickly, I'm going to start writing such letters and get a bunch of great domains myself. "Here take the domain, just please, please, don't sue, whatever you do, please!"
      Oh, so are you putting up the cash to fund his fight? :rolleyes:

      There is a line here that divides ideology and reality. The ideology says that we should never have to give up domain names that we believe we registered in good faith and with earnest intentions. The real world, however, is what determines how things actually work.

      The sad truth is that ideology costs a bucketload of money (moreso when you don't have a lawyer to represent you) and much of the time, it doesn't prevail in the 3D world.

      At some point a person has to decide where they are willing to simply cut their losses and move on. The threshold is different for everyone. I fought a lot of things on principle when I was younger; how that I am old and wise (ha ha) I pick and choose my battles. Do the bullies win sometimes? Yes. But is it equitable and/or sensible to always fight them? No.

      Bailey
      Signature

      Guacamole.

      {{ DiscussionBoard.errors[141953].message }}
      • Profile picture of the author Andy Money
        These guys are just trying to bully you out of your domain name, fight this, I'm pretty sure they are in the wrong.
        {{ DiscussionBoard.errors[141958].message }}
        • Profile picture of the author Floyd Fisher
          Originally Posted by mrsleep99 View Post

          These guys are just trying to bully you out of your domain name, fight this, I'm pretty sure they are in the wrong.
          Before opening your mouth, you really need to look up the case 'Nissan vs Nissan' and see what that kind of fight can cost you.

          He may be in the right, but Hertz has lawyers on standyby that can do things to make life real miserable for him. And they don't mind spending the money to do it.

          He needs to get with a lawyer asap and see where he stands, and decide if that kind of fight is worth it.
          {{ DiscussionBoard.errors[143160].message }}
          • Profile picture of the author Chris Lockwood
            Originally Posted by Floyd Fisher View Post

            Before opening your mouth, you really need to look up the case 'Nissan vs Nissan' and see what that kind of fight can cost you.
            I'm not sure that's the best example, considering that Nissan was the man's name, and he still owns the domain.
            {{ DiscussionBoard.errors[143578].message }}
            • Profile picture of the author jensrsa
              Originally Posted by Chris Lockwood View Post

              I'm not sure that's the best example, considering that Nissan was the man's name, and he still owns the domain.
              When the law and lawyers get involved anything can happen. The original owners of MacDonalds lost the fight to use their own name on their restaurants. So if your name is MacDonald (or Burger King) and you want to open a restaurant with that name expect a fight.

              Different cases, different facts, different lawyers, different judges all affect a case so fighting a case, even if you are "right", can be a toss-up.

              The Nissan case is not only about name, he had been trading under that name for a long time and had registered the domain ages ago as well.

              Jens
              {{ DiscussionBoard.errors[143656].message }}
              • Profile picture of the author Chris Lockwood
                Originally Posted by jensrsa View Post

                When the law and lawyers get involved anything can happen. The original owners of MacDonalds lost the fight to use their own name on their restaurants. So if your name is MacDonald (or Burger King) and you want to open a restaurant with that name expect a fight.
                Weren't they bought out?

                This has nothing to do with the discussion here. Nissan the domain owner is not selling cars.
                {{ DiscussionBoard.errors[143676].message }}
    • Profile picture of the author Kim Standerline
      Originally Posted by annoyedgirl View Post

      Sounds like letting the bullys win. So if someone has deep pockets they can do whatever they want? Not in my world. I don't care if they are effing billionaires. Who cares how much money they have? Let them go for it. If people give up this quickly, I'm going to start writing such letters and get a bunch of great domains myself. "Here take the domain, just please, please, don't sue, whatever you do, please!"
      Annoyed girl,

      If you have the money to spend fighting pointless court cases, then good for you.

      However it's not cool to encourage people to try and battle huge corporations just for the sake of it.

      The fact is, they have the money he doesn't, if the domain was bringing in a lot of income, then fair enough, but he's already said it isn't earning him anything.

      It's sucks, but then so does a lot of other things in life

      Much better things to battle about

      Kim
      {{ DiscussionBoard.errors[141966].message }}
  • Profile picture of the author Simon Nicholls
    Interesting Joe, so basically your saying that they can't claim copyright to my domain as it could mean a different thing to their trademark?
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141947].message }}
  • Profile picture of the author Gene Pimentel
    Many different companies can have the same TradeMark (not copyright) as long as it is being used in different industries.
    {{ DiscussionBoard.errors[141951].message }}
  • Profile picture of the author Simon Nicholls
    MrSleep,

    Thanks for your comments, however as stated before - I can't afford to fight over a $10 domain name!

    I've asked if any financial settlement is available, if not - I'll transfer the domain across and learn from this!

    Simon.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141970].message }}
    • Profile picture of the author Andy Money
      Originally Posted by Ezy Dollar View Post

      MrSleep,

      Thanks for your comments, however as stated before - I can't afford to fight over a $10 domain name!

      I've asked if any financial settlement is available, if not - I'll transfer the domain across and learn from this!

      Simon.
      I'm not sure I would "ask" them anything. I'd demand they pay me for the domain. I know it sounds a little ballsy considering they are threatening you, but given the circumstances (tons of other "similar" domains like this...) they might just need to be slapped around, and they aren't going to "fine" you any more for getting in their face about it. Good luck, stick it to them, you can do it without a lawyer.
      {{ DiscussionBoard.errors[141984].message }}
    • Profile picture of the author Sean Donahoe
      Originally Posted by Ezy Dollar View Post

      MrSleep,

      Thanks for your comments, however as stated before - I can't afford to fight over a $10 domain name!

      I've asked if any financial settlement is available, if not - I'll transfer the domain across and learn from this!

      Simon.
      Having had to deal with people like this in my industry and having gone to court for clients I can only say let it go and here is why:

      1. The domain is only 2 months old and will have little traction in the search engi8nes.

      2. it has made little income so has no intrinsic financial worth.

      3. It is easy enough to buy a new domain and rebrand the website so you do not waste your time investment in developing the website

      4. This is legal bullying but having resources to fight these idiots (and they are idiots) will cost much more that turning off the domain and re-registering a new one.

      5. If you offer to sell it to them (even at a profit) you look like you are a domain squatter even if the name is nowhere near the actual trademark name. This will give them more reason to pressure you. Disabling it will not infringe on anything.

      6. By law, any trademark holder has to protect their trademark or risk loosing it. So rightly or wrongly, Hertz is doing what is required to maintain their international trademark. No point in fighting that fight, just more hassle than its worth.

      Anyway, that's my 2 cents from experience, common sense and having fought some large companies on both sides of this equation.

      Hope it helps
      {{ DiscussionBoard.errors[141998].message }}
      • Profile picture of the author Killer Joe
        Sean is correct. On many levels here. Just move the content to another domain name.

        Hertz does have an obligation to protect its Trademark so the easy way out is to just strip the content and turn over the domain.

        Again not legal advice, just commenting on others comments.

        KJ
        Signature
        {{ DiscussionBoard.errors[142009].message }}
      • Profile picture of the author Kim Standerline
        The voice of comon sense


        Originally Posted by Sean Donahoe View Post

        Having had to deal with people like this in my industry and having gone to court for clients I can only say let it go and here is why:

        1. The domain is only 2 months old and will have little traction in the search engi8nes.

        2. it has made little income so has no intrinsic financial worth.

        3. It is easy enough to buy a new domain and rebrand the website so you do not waste your time investment in developing the website

        4. This is legal bullying but having resources to fight these idiots (and they are idiots) will cost much more that turning off the domain and re-registering a new one.

        5. If you offer to sell it to them (even at a profit) you look like you are a domain squatter even if the name is nowhere near the actual trademark name. This will give them more reason to pressure you. Disabling it will not infringe on anything.

        6. By law, any trademark holder has to protect their trademark or risk loosing it. So rightly or wrongly, Hertz is doing what is required to maintain their international trademark. No point in fighting that fight, just more hassle than its worth.

        Anyway, that's my 2 cents from experience, common sense and having fought some large companies on both sides of this equation.

        Hope it helps
        {{ DiscussionBoard.errors[142010].message }}
  • Profile picture of the author Simon Nicholls
    Well let's put it this way, I never knew Hertz sold GPS systems!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[141977].message }}
    • Profile picture of the author Dixiebelle
      Hi Ezy Dollar: Sorry to hear that this has happened to you. I encountered a similar incident a couple of years ago. Here's what I did. You can do the same.

      1. Write a letter to the hertz Corp. headquarters, addressed to the CEO, and
      include a copy of the letter that you received. Here is the address:

      Hertz Worldwide Headquarters
      225 Brae Blvd.
      Park Ridge, N.J. 07656

      Attn: Mark P. Frissora, CEO

      2. Ask if this is the law firm that represents Hertz Corp., and if they are seriously interested in your domain, and that if he really feels that it is an infringment on the Hertz name. I would also ask why they have not purchased the .net, .info, .org, etc., if they are so concerned. Explain the situation to him, as you have in this post, and offer to sell the domain name to them at a reasonable price. Then wait for a response.

      3. Send a letter back to the "supposed" law firm, informing them that you have sent a letter to the CEO of Hertz Corp., in regard to this matter, and are waiting to hear from them before making a final decision as to what to do.

      Who knows - you may never hear from them again. I didn't. As a matter of fact the letter I rec'd wasn't really from a law firm. It was from someone wanting to scare me into turning over my domain naame to them.

      I never found out how the misrepresentation was handled, although I did receive a reply from the company stating that they were not interested in my domain and was not familiar with the person who sent the demand letter.

      Good luck,
      Dixie
      {{ DiscussionBoard.errors[144063].message }}
  • Profile picture of the author Melody
    In the same vein - there was a recent WSO for custom store sites with major NFL/MLB sorts teams names in the title and using team logos on the site.....I've been curious to see how long it would take for the NFL legal teams to send out the letters.......they are usually quite aggressive and quite nasty about it - but I didn't see anyone voice any concerns in the WSO.

    It was certainly more of an obvious use of a trademarked name than this one was!
    Signature

    Watch this space for great things coming soon ;-)

    {{ DiscussionBoard.errors[141991].message }}
  • Profile picture of the author jensrsa
    EzyDollar, I came across this UK law site the other day - Internet & E-commerce Law: Weblaw . They have a free assesment at Free initial domain name dispute assessment: Weblaw

    Jens
    {{ DiscussionBoard.errors[142001].message }}
    • Profile picture of the author spicegator
      Don't you just wish for once you could take a steel toed boot and kick it up an Attorney like this's Ass.
      {{ DiscussionBoard.errors[142117].message }}
    • Profile picture of the author Ricter
      Saddeningly quick cave-in.
      Signature

      - For your import/export/customs questions or problems, send PM.

      {{ DiscussionBoard.errors[143043].message }}
      • Profile picture of the author Kay King
        Saddeningly quick cave-in.
        I'd call it taking an action using common sense. It's easy to tell someone else to fight a battle - when you don't have to pay any of the consequences.
        Signature

        Saving one dog may not change the world - but forever changes the world of one dog.

        {{ DiscussionBoard.errors[143053].message }}
        • Profile picture of the author Ricter
          Originally Posted by Kay King View Post

          I'd call it taking an action using common sense. It's easy to tell someone else to fight a battle - when you don't have to pay any of the consequences.
          I fight almost everything. Way of life. I think I'm in the right forum, no?
          Signature

          - For your import/export/customs questions or problems, send PM.

          {{ DiscussionBoard.errors[143058].message }}
          • Profile picture of the author Gene Pimentel
            Originally Posted by Ricter View Post

            I fight almost everything. Way of life. I think I'm in the right forum, no?
            A true "Warrior" won't go into a battle that can't be won.
            {{ DiscussionBoard.errors[143068].message }}
            • Profile picture of the author Ricter
              Originally Posted by Gene Pimentel View Post

              A true "Warrior" won't go into a battle that can't be won.
              False, that's soldier thinking. A warrior will fight to the death on principle alone.
              Signature

              - For your import/export/customs questions or problems, send PM.

              {{ DiscussionBoard.errors[143072].message }}
            • Profile picture of the author KarlWarren
              Originally Posted by Gene Pimentel View Post

              A true "Warrior" won't go into a battle that can't be won.
              A Sun Tzu fan...

              Sun Tzu - Wikiquote

              Some really great lessons.
              Signature
              eCoverNinja - Sales Page Graphics & Layout Specialist
              {{ DiscussionBoard.errors[143074].message }}
          • Profile picture of the author davezan
            Originally Posted by Ricter View Post

            I fight almost everything. Way of life. I think I'm in the right forum, no?
            Then go ahead and register a domain name bearing an arguably famous mark,
            use it commercially (like maybe Microsoft), and let us know how it turns out.
            I guess some people love to fight, but life isn't always about fighting, and not
            all so-called battles are won that way.
            Signature

            David

            {{ DiscussionBoard.errors[143075].message }}
            • Profile picture of the author Ricter
              Originally Posted by davezan View Post

              Then go ahead and register a domain name bearing an arguably famous mark,
              use it commercially (like maybe Microsoft), and let us know how it turns out.
              I guess some people love to fight, but life isn't always about fighting, and not
              all so-called battles are won that way.
              That would be starting a battle you can't win. See the difference?

              It's always the other guy, the one who wants something of yours, that tries to talk "sense" into you and give you all kinds of reasons why you should just give up, walk away. The nice people of this world simply roll over and give the boors and bullies what they want every friggin day.

              I learned from working in a jail for a decade that you fight, and you fight again, and you keep fighting, and you make bullying and intimidation DAMN difficult for the scrotes of this world, even if they can whip you in a fight.

              Edit: anyway, Ezy's fight is already over. Moving on...
              Signature

              - For your import/export/customs questions or problems, send PM.

              {{ DiscussionBoard.errors[143091].message }}
              • Profile picture of the author davezan
                Originally Posted by Ricter View Post

                It's always the other guy, the one who wants something of yours, that tries to talk "sense" into you and give you all kinds of reasons why you should just give up, walk away. The nice people of this world simply roll over and give the boors and bullies what they want every friggin day.
                There's a time for everything, Ricter. But I'm sure you know that.

                Moving along now...
                Signature

                David

                {{ DiscussionBoard.errors[143120].message }}
      • Profile picture of the author KarlWarren
        Originally Posted by Ricter View Post

        Saddeningly quick cave-in.
        That's very easy to say when it's not you on the receiving end of a letter from a company that has the resources to take you to court, when you don't have the resources to defend yourself.

        Whether or not he would win does not matter, they could still cost you thousands in legal fees to defend yourself anyway.
        Signature
        eCoverNinja - Sales Page Graphics & Layout Specialist
        {{ DiscussionBoard.errors[143065].message }}
    • Profile picture of the author joe.marsh
      Here is a suggestion..

      I had a similar issue from the Boy Scouts Organization.

      Search for other domains that have "never lost" in them and look at the age of them. Ask why they are coming after you and not the other ones who have been up longer.

      Also put on your site near the top where it is seen right away a disclaimer. Such as this site is not associated with Hertz, never lost program, blah blah blah, Never lost is a registered trademark of Hertz.

      I did this with the scouts and never heard from them again.

      Hope this helps...

      Joe
      Signature
      * Facebook Fanpages Domination Package - Special limited release price. Save over 80%. Price is goingup soon.
      * Getting traffic from high volume sites just got easier. Traffic Sponge - At a special launch price.
      * Just relaunched - WSO - Google First Page Formula - I did it and here is how
      * Join me on Twitter - joemarsh
      {{ DiscussionBoard.errors[143304].message }}
    • Profile picture of the author Black Hat Cat
      Banned
      6. By law, any trademark holder has to protect their trademark or risk loosing it. So rightly or wrongly, Hertz is doing what is required to maintain their international trademark. No point in fighting that fight, just more hassle than its worth.
      7. He doesn't even know if it IS Hertz making this claim. Aren't legitimate claims of this nature handled via snail mail?
      {{ DiscussionBoard.errors[144947].message }}
  • Profile picture of the author Simon Nicholls
    Thank you Jens, I've submitted my problem to them.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[142011].message }}
  • Profile picture of the author Simon Nicholls
    Thank you all for the comments.

    I can understand there you are coming from with regards to move on, it's not worth the hassle, although I just want to find out how they can come to the conclusion that my website address has something to do with Hertz!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[142014].message }}
    • Profile picture of the author jensrsa
      Originally Posted by Ezy Dollar View Post

      Thank you all for the comments.

      I can understand there you are coming from with regards to move on, it's not worth the hassle, although I just want to find out how they can come to the conclusion that my website address has something to do with Hertz!
      Not Hertz, Neverlost plus GPS, and promoting a competing product at that.

      Jens
      {{ DiscussionBoard.errors[142021].message }}
  • Profile picture of the author Scott Ames
    I really am starting to hate lawyers. Your domain has nothing to do with rental cars, except that GPS systems are in some rental cars. I'm sure no one is going to confuse you with Hertz.

    Still, they have deep pockets. I've gone around and around with these types. They would rather pay their lawyer thousands rather than give you a few bucks for the domain.
    Signature

    Success consists of going from failure to failure without loss of enthusiasm. -Winston Churchill

    {{ DiscussionBoard.errors[142030].message }}
  • On a side note, F1 racing is one of the most viewed, highly profitable sports out there. In 2005 it was one of the most overall watched things on the planet.
    Signature

    Money isn't real, George. It doesn't matter. It only seems like it does.

    {{ DiscussionBoard.errors[142046].message }}
    • Profile picture of the author AgileHosting
      [OFF TOPIC]

      Originally Posted by Christopher R Everson View Post

      On a side note, F1 racing is one of the most viewed, highly profitable sports out there. In 2005 it was one of the most overall watched things on the planet.
      Indeed, it has fantastic traction (no pun intended) with the international audience. It's the highly corporate and media centered U.S. market that they are scratching for.

      NASCAR has the top spot in the U.S., unfortunately F1 and the other circuits are nowhere near what NASCAR's got going money-wise.

      And as I said -- it's a crying shame -- people are totally missing out. I find F1, DP, Sports Car etc. to be far more interesting than NASCAR ... the racing is riveting! But for whatever reason, they just haven't been able to tap into the Big bucks and public view like NASCAR has, in the U.S. ... sorry, I should have been more specific earlier.

      OK, I'll stop now. Sorry.

      Bailey

      [/BACK TO TOPIC]
      Signature

      Guacamole.

      {{ DiscussionBoard.errors[142069].message }}
    • Profile picture of the author ironwood
      Looks like there may be room for about 2 cents more of free advice. There are some very good well thought out replies here. My thoughts are these and they may be worth exactly what you are paying for them. You have heard it said many times I am sure that our legal system is not perfect but it is the best in the world.

      However a major flaw in our legal system especially when it comes to civil law is even if you are innocent you may have to prove you are innocent. Corporations like Hertz have very deep pockets and can afford to hire legal council and drag you through the most misirable years of your life and very quickly take your concentration away from building your business while trying to show them where they are wrong. It can get very, very expensive in monitary terms as well as psychological

      Also it would appear that your site may be new and not yet profitable. If this happened to me it would take me about 5 minutes to get angry, throw things around tell my wife and anyone who would listen how unfair this is and then send them the domain and move on.

      Two things to avoid like the plague if you can help it are lawyers and the IRS. Not necessarially in that order of course. If you think life can be unfair just try to get the best of those two organizations.

      I hope you can resolve this with yourself and move on. Best of luck.

      Chet Hastings
      {{ DiscussionBoard.errors[142085].message }}
  • Profile picture of the author pjs
    Originally Posted by Ezy Dollar View Post

    Hi All,

    I've just had an email from a lawyers office in the USA, stating that my domain NeverGetYourselfLost.net is in violation with some law. Apparently, it's nearly the same as Hertz's "Neverlost" trademark . . .?!?!

    Are they having a laugh? Or am I seriously in the wrong? My domain sounds nothing like the above trademark, nor do I sell any Hertz products! It's an eBay site!

    Below is a copy of the file they sent me, I've replied to them saying if they want the domain, then they can buy it off of me for a price that I seem right!



    LAW OFFICES
    HOWARD, PHILLIPS & ANDERSEN


    C

    E-Mail:

    September 30, 2008



    VIA EMAIL () AND
    FIRST CLASS MAIL

    Simon Nicholls

    UNITED KINGDOM

    RE: NEVERGETYOURSELFLOST.NET — Infringement and Dilution of Hertz
    Trademarks

    Dear Mr. Nicholls:

    This law firm represents The Hertz Corporation (“Hertz”) on intellectual property and
    trademark enforcement matters. Hertz takes policing and enforcement of its intellectual property
    rights seriously.

    Hertz is a worldwide corporation, specializing in the leasing and renting of automotive
    vehicles. NEVERLOST® is a duly registered trademark that belongs to Hertz. Hertz first began
    using NEVERLOST® in 1995 and has been using the mark continuously since that time as the
    name for Hertz’s in-vehicle navigation system, which uses state-of-the-art GPS technology and
    digital mapping to provide driving directions and other information to automobile drivers.
    NEVERLOST® is a famous and distinctive trademark that is used by Hertz worldwide and is
    associated by consumers exclusively with Hertz and Hertz’s navigation system. The domain
    name for Hertz’s official website is neverlost.com.

    Your recent registration of the domain name nevergetyourselflost.net, a domain name that
    is confusingly similar to Hertz’s world famous NEVERLOST® trademark, and use of the
    domain name to operate a commercial website advertising GPS-related goods and services,
    violates Hertz’s trademark rights. The Anticybersquatting Consumer Protection Act (“ACPA”)
    provides for statutory damages of up to $100,000.00 per domain name when a famous trademark
    is incorporated in a domain name without authorization from the trademark owner. See 15
    U.S.C. § 1117(d). Hertz has obtained injunctions and judgments against those who have used its
    trademarks in Internet domain names without authorization. See, e.g., The Hertz Corp. v. Names
    for Sale, Civ. No. 00-734-A (E.D.Va. Aug. 10, 2000) (permanently enjoining defendant’s use of
    Simon Nicholls
    September 30, 2008
    Page 2



    neverlost.com, hertzneverlost.com, and hertzmagellan.com and ordering transfer to Hertz).
    Under the ACPA, moreover, a United States court has the power to enter orders concerning
    domain names that incorporate famous trademarks that have been registered in violation of the
    ACPA without the registrant’s presence or participation.

    Hertz, accordingly, asks that you make no further use of the domain name and transfer
    your registration to Hertz. If you have not done so by October 10, 2008, we will infer that you
    are unwilling to resolve this matter voluntarily and will advise Hertz of its remedies.

    Cancellation of the registration will not resolve this matter. If you attempt to cancel the
    registration, Hertz will have no choice other than to immediately file suit for violation of the
    ACPA. If suit is necessary, we will advise Hertz to seek to recover from you all costs and
    expenses incurred by Hertz in recovering the domain name from any subsequent registrant, as
    well as actual and statutory damages.

    This letter is without prejudice to the rights of Hertz, all of which are expressly reserved.

    Very truly yours,






    Any help of advice would be appreciated!
    As far as I know, they can't sue you for domain ownership. They are probably trying to scare you into giving up the domain.
    Signature
    Mom and Pop Money WSO *** - How ONE Lead Capture Page Made $9K in 2 Weeks in the "Offline" niche!

    PeterSanchez.com >>> FollowPeter.com (Twitter)
    {{ DiscussionBoard.errors[142091].message }}
  • Profile picture of the author Chris Lockwood
    I'm surprised that lawyers are sending a notice like that via email. If you hadn't responded, they wouldn't know you had received it.
    {{ DiscussionBoard.errors[142121].message }}
    • Profile picture of the author davezan
      Originally Posted by pjs View Post

      As far as I know, they can't sue you for domain ownership.
      It's been done before. I've transferred domain name ownership upon receipt of
      a court order from a suit a few times.

      Originally Posted by Chris Lockwood View Post

      I'm surprised that lawyers are sending a notice like that via email.
      Don't be. C&Ds are routinely being sent via email nowadays, and one lawyer I
      know sends his via email with a PDF.

      C&Ds are attempts to resolve an issue within an "artificial" deadline. They will
      take action if no reply is secured within that period.

      I once blogged something about this:

      Four Common Domain-Trademark Myths | Dave Zan's Domain Name Blog

      (Hmm, I guess I should include myth number 5: that others doing it means it's
      okay or legal.)

      As for some of you folks beginning to hate lawyers, wait 'til you get a dispute
      in your lap. They can be your friend or your enemy, depending on what side of
      the fence you're on.

      IANAL, but I've checked into the Holiday Inn the other night...
      Signature

      David

      {{ DiscussionBoard.errors[142188].message }}
  • Profile picture of the author John_Reese
    I need to preface this by stating that I am not an attorney and this in no way should be considered legal advice.

    ----

    I have a lot of experience in this area. I was once one of the largest domain brokers in the world (mid-1990s). I have personally owned over 30,000 domains and have been involved (from both sides) in legal disputes and issues regarding domain names and trademarks.

    There is about a 95% chance that you will legally LOSE this case. Hertz has a registered trademark on a term that is similar to the one you are using, and what's really important is that trademarks are registered based on CLASSES OF GOODS. If you were selling special pet collars and tags, for example, to keep pet's from getting lost, the situation would be different. But Hertz has registered this mark in the specific class of goods related to GPS systems -- exactly what you're using the similarly phrased domain for.

    * This is why there CAN be an "Apple Vacuum Cleaners" and an "Apple Computer" company. They are doing business in a different class of goods.

    The first question that is asked is, "Does the mark (domain) in question cause confusion in the marketplace?" This is the foundation of trademark law. It's obvious that YES your domain does because it's similar enough that 'some' (which is all it takes) might think it's related to Hertz' mark.

    You not being aware of their trademark doesn't matter. It's still potentially causing confusion in the marketplace and that's why they are taking action to protect their mark.

    The fact that they didn't register other extensions doesn't matter. They only have to protect their mark from those that ARE potentially infringing upon it; not take every possible preemptive measure to keep others from infringing in the future.

    Just give them the domain and register something else for your site.

    -John Reese
    {{ DiscussionBoard.errors[142239].message }}
    • Profile picture of the author davezan
      If John Reese's post doesn't convince anyone this, I don't know what will.

      Thanks for sharing, John. And you're 99% (if not 100%) correct.
      Signature

      David

      {{ DiscussionBoard.errors[142284].message }}
  • Profile picture of the author Simon Nicholls
    Thanks all for your advice.
    I've sent another email asking for account details.

    Look at what I found on the original email containing the PDF file:

    Ladies and Gentlemen:

    This law firm represents the Hertz Corporation in trademark enforcement matters. Please find attached important correspondence addressed to you regarding your registration of DRIVETHEWORLD.BIZ. A hard copy will follow by first-class mail.

    Sincerely,


    I don't even own drivetheworld.biz!

    Once I've sent the domain across, all this should go away?

    Simon.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[142794].message }}
  • Profile picture of the author toonarme
    This is bloody ridiculous! So we're not allowed to register any domain name which contains the words 'lost' and 'never' just in case some moron thinks that we're referring to a hire car with GPS? The world's going mad...
    {{ DiscussionBoard.errors[142820].message }}
    • Profile picture of the author KarlWarren
      Originally Posted by toonarme View Post

      This is bloody ridiculous! So we're not allowed to register any domain name which contains the words 'lost' and 'never' just in case some moron thinks that we're referring to a hire car with GPS? The world's going mad...
      Yes... I could register neverlost dot co dot uk providing I don't use it to promote GPS systems...

      Say for instance I wanted to use it to sell a wrist strap product to help parents who are worried about their child getting lost (just as an example)

      That would be fine...
      Signature
      eCoverNinja - Sales Page Graphics & Layout Specialist
      {{ DiscussionBoard.errors[142845].message }}
      • Profile picture of the author KarlWarren
        To make it a little clearer...

        If I run a computer company I can't trade under the name:
        My Crow's Soft

        However, if I run a rehabilitation centre for sick birds:
        My Crow's Soft would be perfectly legitimate

        Causes no brand or trademark confusion with Microsoft.

        This is my understanding of it, I am sure I'll be corrected if I am wrong.

        BAD PUN ALERT!!!

        It could still be IllEagle.
        Signature
        eCoverNinja - Sales Page Graphics & Layout Specialist
        {{ DiscussionBoard.errors[142850].message }}
  • Profile picture of the author Simon Nicholls
    I agree with Karl. Anyway, email sent - now waiting for reply!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[142861].message }}
  • Profile picture of the author Mark Brian
    You are correct Karl. Same business names are "okay" as long different business nature.

    Now my question is, what if you are based in a different country, are there international trademark registrations? Or do you have to register manually to all countries in the world?
    Signature

    {{ DiscussionBoard.errors[142864].message }}
    • Profile picture of the author Kay King
      I've sent another email asking for account details.
      I'm not sure what details you are expecting. The conflict is pretty clear - and one answer above pointed out something many don't understand:

      To continue to protect the integrity of a trademark, the company needs to actively pursue violations. If a company doesn't do that, they can lose their right to protect their name. That's why they hire legal firms to do nothing more than keep an eye on where their brand name is used and perhaps misused.

      Legal advice on a forum isn't usually worth squat. However, you have members here highly experienced in the domain area telling you to drop the name and move on. That's your best course of action.

      kay
      Signature

      Saving one dog may not change the world - but forever changes the world of one dog.

      {{ DiscussionBoard.errors[143007].message }}
      • Profile picture of the author Simon Nicholls
        Originally Posted by Kay King View Post

        I'm not sure what details you are expecting. The conflict is pretty clear - and one answer above pointed out something many don't understand:

        To continue to protect the integrity of a trademark, the company needs to actively pursue violations. If a company doesn't do that, they can lose their right to protect their name. That's why they hire legal firms to do nothing more than keep an eye on where their brand name is used and perhaps misused.

        Legal advice on a forum isn't usually worth squat. However, you have members here highly experienced in the domain area telling you to drop the name and move on. That's your best course of action.

        kay
        I meant account details so I can send the domain across to the Lawyers or Hertz.
        Signature
        Your Online Golfing Resource
        My Current Website Auctions
        I'm new to the IM world, so please . . . go easy on me!
        {{ DiscussionBoard.errors[143186].message }}
    • Profile picture of the author davezan
      Originally Posted by Mark Brian View Post

      Now my question is, what if you are based in a different country, are there international trademark registrations? Or do you have to register manually to all countries in the world?
      Look up Madrid Protocol. But it's limited to only its member countries, and it's
      not really affordable to the arguably average small business owner.

      OTOH, there's an administrative process called the Uniform Dispute Resolution
      Policy
      . It can allow a trademark holder in country A to try to cancel (which is
      rather silly) or transfer a .com domain name from its registrant in country B if
      its conditions are met, and it's part of your registration contract.

      And Simon, they'll probably be content if you transferred the domain name to
      them. If they subsequently ask you to sign something to the effect you won't
      register a domain name possibly infringing their marks, you don't have to sign
      it.

      As for the rest reading this and finding this questionable, you can register any
      domain name you want. But certain legal and administrative laws or processes
      limit your ability to use them, namely not using them commercially that might
      infringe their trademark name-sakes.

      The more unique and/or famous the mark, such as Karl Warren's example for
      Microsoft, the more likely users will confuse your domain name with its holder.
      Likelihood of confusion is what it boils down, which is what trademarks aim to
      prevent in the first place.
      Signature

      David

      {{ DiscussionBoard.errors[143016].message }}
  • Profile picture of the author TheWatcher
    Someone mentioned F1 in relation to Trademarks.

    Just so as you know, Bernie LOST in his attempt to trademark F1 ... AND his attempt to wrestle f1.com from it's owner! He ended up buying the domain later.

    F1 Trademark Case
    {{ DiscussionBoard.errors[143010].message }}
  • Profile picture of the author Ernie Lo
    I think John Reese just about summited it all up.

    It sucks I know..but you're better off just giving in and concentrating on your business.
    {{ DiscussionBoard.errors[143132].message }}
  • Profile picture of the author Brad Lindsay
    Firstly I'm not an attorney so can't give and am not giving legal advice.

    With that said, whilst you're pondering on what to do and taking legal advice, if you decide to keep you site online as you appear to have done so far, if it were me, I would at the very least and without delay put up a prominent notice on the site clearly stating that the site has no connection or affiliation to The Hertz Corporation nor to the NeverLost® brand which is a registered trade name and brand of The Hertz Corporation.

    You may wish to contact EFF to see if they're able to offer advice or assistance:

    Electronic Frontier Foundation | Defending Freedom in the Digital World

    Good luck!

    Brad
    {{ DiscussionBoard.errors[143227].message }}
    • Profile picture of the author Simon Nicholls
      Brad,

      Thank you for your comments. I've now taken the website offline, and have noticed the lawyer firm. I'm still waiting for a reposnse from them with regarding to transferring the account across to them.

      I've also asked them to confirm that all action against myself will cease once the domain has been transferred.

      Simon.
      Signature
      Your Online Golfing Resource
      My Current Website Auctions
      I'm new to the IM world, so please . . . go easy on me!
      {{ DiscussionBoard.errors[143297].message }}
  • Yo Ezy,

    I'm not a lawyer so this doesn't count as actual advice. But just remember that big corporations have teams of lawyers whose job it is to write those kinds of letters to people like you. Most people are so afraid of lawyers that they just roll into a little ball. The guy probably doesn't even remember writing that letter.

    I don't know about the state where you live but most places have a law saying that a lawyer has to give you a certain amount of time, usually one hour, as a free consultation. It would take way less than that for a lawyer to tell you if this is something to be concerned about.
    {{ DiscussionBoard.errors[143685].message }}
  • Originally Posted by Ezy Dollar View Post

    Hi All,

    I've just had an email from a lawyers office in the USA, stating that my domain NeverGetYourselfLost.net is in violation with some law. Apparently, it's nearly the same as Hertz's "Neverlost" trademark . . .?!?!

    Are they having a laugh? Or am I seriously in the wrong? My domain sounds nothing like the above trademark, nor do I sell any Hertz products! It's an eBay site!
    That is really crazy! I guess some people just need some excuse to strike out their competitors, but then again, you are not their competitor in anyway as you say. Good luck!

    But

    Any help of advice would be appreciated!

    Like someone else said, a lawyer can give you better advice on this than a marketing forum.

    Arindam
    {{ DiscussionBoard.errors[143712].message }}
    • Profile picture of the author Valerie V
      These two articles may be of interest from the DNJournal:

      Domain Name Journal - Legal Matters

      At least you received a C&D. Some corporations are taking a more
      aggressive approach and moving ahead with legal action in all
      cases as a way of "making an example" of an unlucky few to
      deter future "squatters"

      Val
      {{ DiscussionBoard.errors[143792].message }}
    • Profile picture of the author solano101
      Originally Posted by Arindam Chakraborty View Post

      That is really crazy! I guess some people just need some excuse to strike out their competitors, but then again, you are not their competitor in anyway as you say. Good luck!

      But




      Like someone else said, a lawyer can give you better advice on this than a marketing forum.

      Arindam
      i don't think so
      {{ DiscussionBoard.errors[249833].message }}
  • Profile picture of the author Simon Nicholls
    I'm from the UK, so completly different rules (Can a US firm sue me anyway if I'm in a different country?!).

    Again, I really can't afford a lawyer, I'm waiting for a reply back from them, I'm expecting one anytime now.

    Simon.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[143730].message }}
    • Profile picture of the author JustVisiting
      Originally Posted by Simon Nicholls View Post

      I'm from the UK, so completly different rules (Can a US firm sue me anyway if I'm in a different country?!).
      Simon

      In a word ... not without massive expense on their part!

      What are they going to do, extradite you? The guy that hacked the Pentagon is probably being extradited, but I doubt whether the UK Government would hand you over!

      Before I continue with my next comment, I want to emphasize that I have worked with many American's and they are great folk....however US lawyers seem to think US law applies to the world...it doesn't.

      If it is genuine you could really profit from this at a later stage. I'd phone the 'News of the World', 'Daily Mail' etc and tell them whats happening. This would be bad publicity for Hertz - who have a large business in the UK.

      You could start a blog, with the domain name in question, and document every communication they send you. Of course you would monetize it with Adsense.

      After saying this, to infringe a registered trademark surely it has to be an exact replica of the original, yours isn't.
      Signature
      "...If at first you don't succeed; call it Version 1.0"
      {{ DiscussionBoard.errors[250332].message }}
  • Profile picture of the author sm2007
    I actually received a Cease and Desist (C&D) on a domain from a MOTHER of all: E - b - a - y

    Basically said :
    In violation, stop using, you may not sell as we will go after you and new owner for damages etc. etc. etc.

    Didn't respond, that was 2 years ago. Never heard from again... they missed the other 3 i had and i still have all of them.

    You would think they would be a little more relentless than most!
    Signature
    IncomeCentral.com - Your Business Network
    Voxent.com - Virtual Phone System Feature Rich PBX
    {{ DiscussionBoard.errors[143794].message }}
  • Profile picture of the author Chris Monty
    I would let it play out and see how serious they really are. I've never even heard of that Hertz product so how popular can it be?

    If they want you, they will come and get you. THEN, make a decision.
    {{ DiscussionBoard.errors[143807].message }}
  • Profile picture of the author Simon Nicholls
    I could do that, but I really don't want to get that far over a $10 domain name.

    They have added a cutoff date, we'll see what happens and if I recieve a reply.

    Simon.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[143816].message }}
  • Profile picture of the author Simon Nicholls
    Ok . . . .

    Just recieved an email back, I have started the transfer process.

    They are willing to refund me for any domain costs that I may have incurred. In response to my question that after I transfer the domain, am I still liable - he is going to forward the question to the attorney, who will then get back to me . . . .

    Least I'm going to get the domain fee back . . .hopefully.

    Hopefully I'm now in the clear!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[143961].message }}
  • Profile picture of the author jensrsa
    Fortunately you haven't built it into a paying business yet so it should be easy to start with a new domain.

    Backup your site and database so you can easily and quickly set up the new site.

    Jens
    {{ DiscussionBoard.errors[144064].message }}
  • Profile picture of the author Simon Nicholls
    Dixie, brilliant advice, I may just do that! I'll see what happens next!

    Jens, one step ahead, already done! ;-) By linking to this forum, I don't think I've ever had so many visitors! ;-)
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[144194].message }}
  • Profile picture of the author Simon Nicholls
    Which is what I'm doing!

    I actually thought it was a decent domain, hence why I bought it!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[144229].message }}
    • Profile picture of the author sylviad
      Maybe you can do what the Swedes did, and register the domain for another country. If you're in the UK, why not use the domain name with the uk extension? That might be sufficient.

      Sylvia
      Signature
      :: Got a dog? Visit my blog. Dog Talk Weekly
      :: Need articles, ebooks written? - Award-winning Journalist is taking new projects. Warrior Discounts!
      {{ DiscussionBoard.errors[144245].message }}
  • Profile picture of the author lightningzeus
    This is absolute BS imo. I do not believe they have a case at all. Just because they are some big company, it does not mean they can do whatever they want. And no your domain may be close to there trademark or w/e, but it does not in any way or form have their exact trademark. The only sucky thing is that if you do not have a lawyer, they will bring in some fancy lawyer and just out gun/ out talk u.
    {{ DiscussionBoard.errors[144329].message }}
    • Profile picture of the author davezan
      Originally Posted by Ezy Dollar View Post

      In response to my question that after I transfer the domain, am I still liable
      Theoretically, yes. In reality, it's very, very, very, very, very rare for a mark
      holder to further pursue a potential infringer, even after satisfying their initial
      condition like transferring the domain name to them.

      Originally Posted by lightningzeus View Post

      I do not believe they have a case at all.
      Maybe. But let's review a few facts:

      1. Hertz does have a trademark for Never Lost for GPS systems.

      2. The OP's domain name bears their trademark.

      3. The domain name showed content for, of all things, GPS.

      4. Various decisions indicate having an extra letter or word won't get around
      infringement, especially if commercial.

      While companies don't always get to do what they want, neither do we. It so
      happens some parties are ready to demonstrate their established rights, and
      how it's being infringed on.

      We're aware a lot of people don't like this, depending where they stand. But it
      can very much help to understand how and why this happens, and what to do
      to possibly avoid or deal with it.
      Signature

      David

      {{ DiscussionBoard.errors[144489].message }}
      • Profile picture of the author Scott Lundergan
        This guy got to keep his domain

        Nissan Computer Corporation
        {{ DiscussionBoard.errors[144667].message }}
        • Profile picture of the author Paul Myers
          Scott,
          This guy got to keep his domain

          Nissan Computer Corporation
          Yeah. Just like Mike Rowe got to make a sweet deal for the domain MikeRoweSoft.com. It's his real name, and he was selling software he wrote.

          Here's one thing I didn't see mentioned. A lot of companies do these things as a way to prove they're diligent in protecting their marks. That way, they don't go the way of kleenex, which is now considered a generic term for facial tissues, IIRC.

          If you respond with a letter explaining why you believe there will be no confusion (very different name and/or in a different field), and why it won't be confusing to their prospective clients, that will often satisfy them and serve their primary interest in the mark.

          I've had a couple of these and handled them that way. No problems. But I was VERY far from conflicting usage or anything a judge would call "bad faith."

          Note: I'm not a lawyer and this is not legal advice. Just something people can consider when preparing to speak with lawyers on similar issues in the future. An IP or trademark lawyer will know this stuff already. Most lawyers who don't specialize in that field, in my experience, won't. The details are where things can get sticky.


          Paul
          Signature
          .
          Stop by Paul's Pub - my little hangout on Facebook.

          {{ DiscussionBoard.errors[144746].message }}
        • Profile picture of the author jensrsa
          Originally Posted by Scott Lundergan View Post

          This guy got to keep his domain

          Nissan Computer Corporation
          After 9 years in the courts, and the battle is still not over, the court ordered Nissan Motor Corporation to pay $58,000 as cost under rule 68, this is less then 2% of what the cost was to defend this case.

          Not worth it for the $7 domain that is the topic of this thread.

          Jens
          {{ DiscussionBoard.errors[145356].message }}
  • Profile picture of the author SimonRiver
    They don't have a case. The product you're selling is completely different from Hertz, which is a car rental company. Thus trademarked terms are not competing with each other.

    So if you're not in competition, or in the same market, then it's just all another way for lawyers to make money off of Hertz for writing threat letters to waste people's times.

    They have no case and they are laughing their way to the bank.
    {{ DiscussionBoard.errors[144839].message }}
    • Originally Posted by SimonRiver View Post

      They have no case and they are laughing their way to the bank.
      How are they banking cash by having lawyers send him a letter demanding he surrender a $7 domain name?
      Signature
      Read this SURPRISING REPORT Before You Buy ANY WSO! Click Here
      FREE REPORT: Split Test Your Landing Pages the Easy Way
      {{ DiscussionBoard.errors[144909].message }}
    • Profile picture of the author davezan
      Originally Posted by SimonRiver View Post

      They don't have a case. The product you're selling is completely different from Hertz, which is a car rental company. Thus trademarked terms are not competing with each other.

      So if you're not in competition, or in the same market, then it's just all another way for lawyers to make money off of Hertz for writing threat letters to waste people's times.

      They have no case and they are laughing their way to the bank.
      Originally Posted by blackhatcat View Post

      7. He doesn't even know if it IS Hertz making this claim.
      People, please read the thread in its entirety. But here's a shortcut:

      Originally Posted by Ezy Dollar View Post

      LAW OFFICES
      HOWARD, PHILLIPS & ANDERSEN


      C

      E-Mail:

      September 30, 2008



      VIA EMAIL () AND
      FIRST CLASS MAIL

      Simon Nicholls

      UNITED KINGDOM

      RE: NEVERGETYOURSELFLOST.NET — Infringement and Dilution of Hertz
      Trademarks

      Dear Mr. Nicholls:

      This law firm represents The Hertz Corporation (“Hertz”) on intellectual property and
      trademark enforcement matters. Hertz takes policing and enforcement of its intellectual property
      rights seriously.

      Hertz is a worldwide corporation, specializing in the leasing and renting of automotive
      vehicles. NEVERLOST® is a duly registered trademark that belongs to Hertz. Hertz first began
      using NEVERLOST® in 1995 and has been using the mark continuously since that time as the
      name for Hertz’s in-vehicle navigation system, which uses state-of-the-art GPS technology and
      digital mapping to provide driving directions and other information to automobile drivers.
      NEVERLOST® is a famous and distinctive trademark that is used by Hertz worldwide and is
      associated by consumers exclusively with Hertz and Hertz’s navigation system.
      The domain
      name for Hertz’s official website is neverlost.com.

      Your recent registration of the domain name nevergetyourselflost.net, a domain name that
      is confusingly similar to Hertz’s world famous NEVERLOST® trademark, and use of the
      domain name to operate a commercial website advertising GPS-related goods and services,
      violates Hertz’s trademark rights.
      The Anticybersquatting Consumer Protection Act (“ACPA”)
      provides for statutory damages of up to $100,000.00 per domain name when a famous trademark
      is incorporated in a domain name without authorization from the trademark owner. See 15
      U.S.C. § 1117(d). Hertz has obtained injunctions and judgments against those who have used its
      trademarks in Internet domain names without authorization. See, e.g., The Hertz Corp. v. Names
      for Sale, Civ. No. 00-734-A (E.D.Va. Aug. 10, 2000) (permanently enjoining defendant’s use of
      Simon Nicholls
      September 30, 2008
      Page 2



      neverlost.com, hertzneverlost.com, and hertzmagellan.com and ordering transfer to Hertz).
      Under the ACPA, moreover, a United States court has the power to enter orders concerning
      domain names that incorporate famous trademarks that have been registered in violation of the
      ACPA without the registrant’s presence or participation.

      Hertz, accordingly, asks that you make no further use of the domain name and transfer
      your registration to Hertz. If you have not done so by October 10, 2008, we will infer that you
      are unwilling to resolve this matter voluntarily and will advise Hertz of its remedies.

      Cancellation of the registration will not resolve this matter. If you attempt to cancel the
      registration, Hertz will have no choice other than to immediately file suit for violation of the
      ACPA. If suit is necessary, we will advise Hertz to seek to recover from you all costs and
      expenses incurred by Hertz in recovering the domain name from any subsequent registrant, as
      well as actual and statutory damages.

      This letter is without prejudice to the rights of Hertz, all of which are expressly reserved.

      Very truly yours,
      Note the parts in bold. And no, blackhatcat, they're not required to handle all
      that via snail mail only.

      Then again, Microsoft has demontrated various times a trademark holder does
      not even have to send a C&D
      in the first place if they choose to sue outright
      in court. That's probably because they got money, but that's since "inspired"
      other mark holders to do the same.
      Signature

      David

      {{ DiscussionBoard.errors[145141].message }}
  • Profile picture of the author jensrsa
    BTW Ezy Dollar, nevergetyourselflost.com is available, as long as you don't sell GPS

    Jens
    {{ DiscussionBoard.errors[145359].message }}
  • Profile picture of the author Simon Nicholls
    I did mention to the person who contacted me that all of the others were available to buy, surely if they were THAT hot on copyright etc they would of bought them all up!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[145425].message }}
  • Profile picture of the author Simon Nicholls
    Ok, good news, I guess!

    I have started the transfer process and all charges against me are apparantly going to be dropped!

    Now just need to focus on building and selling these other websites!

    Simon.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[148078].message }}
    • Profile picture of the author Chris Monty
      Good show! Glad to hear there is a happy ending!
      {{ DiscussionBoard.errors[148263].message }}
  • Profile picture of the author laynee
    I can't imagine that getting into a legal quagmire would be worth it over a site that you say isn't getting that many visitors. I would, at least, send out a few press releases about what's happened. I never had anything against Hertz until I read your post, but I'm so not-impressed by companies that pull crap like this. In my opinion, your domain is completely not infringing on anything, and now, given the choice between Hertz and the myriad other rental cars, I'll be going with one of the others.
    Good Luck,
    Laynee
    {{ DiscussionBoard.errors[250250].message }}
  • Profile picture of the author shreder
    What ever you do, do NOT give them the domain right away.
    There are many Internet bullies who send out letters such as the one you received just to acquire some free domains.

    Your domain is using regular expressions - Never get yourself lost is something I can use everyday and actually use it daily.

    Here's a list of domain lawyers:
    NamePros.Com

    Here's a forum where you can get more experienced domainers' advice:
    NamePros.Com

    Just filing a case to get the domain will cost them at least $1500

    Don't give up!
    {{ DiscussionBoard.errors[250346].message }}
  • Profile picture of the author JustVisiting
    Simon

    If you do transfer you MUST charge them a transfer fee, upfront of course. Charge US lawyers rates, $500 per hour should do it, minimum 2 hours to include your admin costs.
    Signature
    "...If at first you don't succeed; call it Version 1.0"
    {{ DiscussionBoard.errors[250371].message }}
  • Profile picture of the author hiphil
    Take a copy to your local CAB and arrange for a consultation with a lawyer, I think you can get 30 minutes free legal advice.
    Signature

    Create your first website by 3:45 this afternoon - using Free software. (Free Download).
    www.hiphil.net

    {{ DiscussionBoard.errors[250399].message }}
  • Profile picture of the author Simon Nicholls
    I've already transferred the domain over! :-( I'm going to email them now and ask for payment. I'm not keeping my hopes up . . .

    Simon.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[250562].message }}
  • Profile picture of the author Simon Nicholls
    I've just sent them this email on the fly . . .

    Hello,

    I recently transferred a domain over to you (Index of /). I recieved an email from yourselves, you agreeded to pay me the cost of the domain, I would also like a fee on top of this - I had no idea that t he website was apparantly violating your clients copyright procedures.

    My fee will be $250 + The original domain fee,

    Please advise to how you would like to proceed with these fees....

    Regardsm

    Simon Nicholls.


    I'm not keeping my hopes up though . . .
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[250569].message }}
    • Profile picture of the author JustVisiting
      Originally Posted by Simon Nicholls View Post

      I've just sent them this email on the fly . . .

      Hello,

      I recently transferred a domain over to you (Index of /). I recieved an email from yourselves, you agreeded to pay me the cost of the domain, I would also like a fee on top of this - I had no idea that t he website was apparantly violating your clients copyright procedures.

      My fee will be $250 + The original domain fee,

      Please advise to how you would like to proceed with these fees....

      Regardsm

      Simon Nicholls.


      I'm not keeping my hopes up though . . .
      Good on yer! They certainly don't work for 'free' so why should you?
      Signature
      "...If at first you don't succeed; call it Version 1.0"
      {{ DiscussionBoard.errors[250794].message }}
      • Profile picture of the author ronr
        I just saw a blog about blog getting a C&D letter from Tmobile for using the same color Magenta as T-mobile on their web page.

        The blog was about gadgets.
        {{ DiscussionBoard.errors[250805].message }}
    • Profile picture of the author KirkMcD
      Originally Posted by Simon Nicholls View Post

      My fee will be $250 + The original domain fee
      I hope you are kidding. You were lucky to get an offer for the original domain fees. They tend to look down upon these things.

      what could I do next
      Walk away. It's not worth your time and effort.
      {{ DiscussionBoard.errors[250979].message }}
  • Profile picture of the author Simon Nicholls
    It's pathetic.

    I don't think I'm going to get anything however, what could I do next?

    Simon.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[250869].message }}
  • Profile picture of the author Simon Nicholls
    I'm not kidding, why should I be?

    I paid for that domain - I'm not going to just give it away. As said before, they are bullying me into giving it to them.

    They can look down at me all they like, it would be different if the site was making $100 a day wouldn't it?
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[250993].message }}
    • Profile picture of the author Thomas Belknap
      Originally Posted by Simon Nicholls View Post

      I'm not kidding, why should I be?

      I paid for that domain - I'm not going to just give it away. As said before, they are bullying me into giving it to them.

      They can look down at me all they like, it would be different if the site was making $100 a day wouldn't it?

      You were pretty happy just to give the domain up and have the problems go away. Now you are trying to make money off of it?


      Maybe you should have just kept the domain and ask for the fee then? Oh, that is right, you were worried about lawyer fees. lol
      {{ DiscussionBoard.errors[251012].message }}
  • Profile picture of the author obiswill
    Welcome to the litigious world of the USA. If McDonald's in the USA can sue the real McDonalds family in Scottland from using their family name on their restaurant...anything is possible. However (I have to put on my Georgetown Law Cap now! ) in your instance you are the victim of Corporate lawyer bullying.

    You have no infringment issue, unless you sell the same and/or similar GPS product (you can't confuse the consumer in the marketplace). Never Get Yourself Lost can very easily be argued to be in the 'public domain' (and I would advise you to TM if it you plan on using it for biz) by any junior attorney. This is sent to you as a scare tactic in hopes that you will be too afraid, or not knowledgeable of TM infringement laws. Have an attorney repsond with a letter citing case law and this will be gone quickly.

    FYI..this happened to me 3 years ago when I received one of those letters from the NBA (National Basketball Association) Attornies. I remember laughing when I read it. I called a friend of mine who replied to their Attorneys with case law, and in return threatened them that if they persisted in their legal harassment they would be sued for damages that resulted in the disruption of our business practice as well as legal fees. That was the last we heard from them!
    Signature

    The Future Is Now
    www.fromhopetovictory.com

    {{ DiscussionBoard.errors[250994].message }}
  • Profile picture of the author Simon Nicholls
    Indeed. Well, now they have the domain what harm will it do asking for compensation?

    I wasn't happy giving it up, but as you say - I couldn't afford the legal fees.
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[251055].message }}
    • Profile picture of the author Thomas Belknap
      Originally Posted by Simon Nicholls View Post

      Indeed. Well, now they have the domain what harm will it do asking for compensation?

      I wasn't happy giving it up, but as you say - I couldn't afford the legal fees.

      Nothing wrong with a little cybersquating, eh?
      {{ DiscussionBoard.errors[251057].message }}
    • Profile picture of the author TE2
      Originally Posted by Simon Nicholls View Post

      Indeed. Well, now they have the domain what harm will it do asking for compensation?

      I wasn't happy giving it up, but as you say - I couldn't afford the legal fees.
      Hey Simon,

      I am NOT going to tell you what to do or give any advice. I just want to share this with you and the others reading this thread.

      One of my best friends says this all of the time...

      "Would you rather be happy or would you rather be right?"

      Think about those words. I did and still do on a daily basis.

      I applied them a few months ago when my son was falsely accused of a serious crime. It cost us $8000 "cash" to get an attorney, go to Grand Jury, and get vindicated. Then another $1500 to expunge it completely from his record although he was never charged and the Grand Jury cleared him (plus they asked if they could bring charges against the false accuser).

      We had a decision to make - spend the next few years and more money to prosecute the accuser and get that $9500 back or... just let it go and get on with our lives.

      Our choice... to be happy!

      I sincerely hope you find this helpful now and in the future.

      Regards,

      John
      {{ DiscussionBoard.errors[251119].message }}
  • Profile picture of the author Li Weng
    This is ridiculous. I don't see how this is a breach of copyright at all! It's a different phrase, only with two words the same. How can they justify this? I can't believe it.
    Signature

    - Insert backlink here -

    {{ DiscussionBoard.errors[251484].message }}
    • Profile picture of the author davezan
      Originally Posted by TE2 View Post

      One of my best friends says this all of the time...

      "Would you rather be happy or would you rather be right?"
      Cultivate and cherish your friendship with that person, John. He's a wise man
      or woman, though the answer to that might depend on the situation.

      Originally Posted by Li Weng View Post

      I don't see how this is a breach of copyright at all!
      Arguably, the average person doesn't understand, much more care, how and
      why these things happen until it happens to them. That's to be expected.

      But if one cares to find out, especially when a few answers here have already
      been posted, then they might understand it better. I once felt that way until
      I took it upon myself to figure out why, though I think I was fortunate.

      Oh, and Simon...they don't owe you anything. But you can try doing what I
      quoted from John above.

      After all, life's too short concerning one's self over things he or she does not
      necessarily have full control over. But...it's your choice.

      And since you gave the domain name to them, the issue's practically moot. It
      is time to get back to work and make money without infringing on the rights of
      established parties, folks, unless you work out a win-win situation with them.
      Signature

      David

      {{ DiscussionBoard.errors[251649].message }}
  • Profile picture of the author gatorjack
    Basically, Hertz and they bullying attorneys have nothing better to do than to try and push around anyone they want. They see a domain that is similar to one they have registered, so instead of making an offer (as a normal business would do), they would rather waste their money pushing someone around.

    The fact of the matter is in order for them to show infringement, they must show that your user of the domain would cause consumers to confuse your website their thair trademarked name. Since your website, product, and service are nothing near the service Hertz offers, I don't see how they would have any chance of winning.

    I will repeat this, they must prove that your domain will confuse consumers. Just because you have a domain similar to their name does not mean that it is infringing. Now, if your offered rental services on your website, especially a service similar to the service Hertz is speaking of, then I could see the point of them having a cow over it.

    Too many of these pushy attorneys that have nothing better to do with their time seem to think that just because a name is "similar" to one of their client's that they can shove people around. Attorneys like that don't need to be in law in the U.S. They need to live in a Communist country where their bullying services can be better utilized.
    {{ DiscussionBoard.errors[251556].message }}
  • Profile picture of the author Maria Gudelis
    Simon - if this assumption is correct - they had only sent you the email right?

    You haven't been served or a lawsuit hasn't been prepared and filed by this law firm right?

    So...they first have to prepare claim against you, then serve you in your own country - so ... until that happens - it's all a bluff and bully behaviour.

    You've made the decision to give up the domain ...in the future...if you can't afford an attorney - remember - you can represent yourself 'pro se' - there is nothing wrong with doing that and also quite effective as the only one racking up attorney fees and having to do all the work to prove their claim - is them.

    future - You have that decision / option - to simply not respond to bullying and wait and see if they really will file a lawsuit ( ps - and it sure would have been interesting to see what a judge thinks of how close it is to the trademark - everyone has fair use of the words never and lost in other context to 'neverlost' trademark.)
    Signature

    Brand NEW: How To Dominate Facebook SEO - LIVE Coaching - Closes SOON! Get In Now Click Here


    {{ DiscussionBoard.errors[251755].message }}
  • Profile picture of the author Tim Franklin
    Some good advice here,

    As another poster mentioned, offering the sell the domain name, was a bad move, it does give them some ammunition.

    At this point, there are really only two options, get some legal advice or
    substantially change the website to something so completely different that there can be no case made that the website infringes in any way.

    Were it me, I would just move the page to a "parked webpage"

    I have several domains, that are close to other more popular websites, most of the time I keep these parked, this is a legal tactic, which keep anyone from attempting to claim that the domain is infringing.

    Once the statute of limitations has run its course, I will be free to use the website in the way I see fit.

    However, I did obtain some legal advice about these domains and it cost me about $150.00 for that legal opinion.

    In your case it is probably not worth the time and money, but I am stubborn, I would not just give it up to them, I would just park it.

    General disclaimer, I am not an attorney, this does not constitute advice.
    Signature
    Software Development | Applications | OSX | iOS | Android | Cloud Software Engineering |
    {{ DiscussionBoard.errors[252541].message }}
    • Profile picture of the author davezan
      Originally Posted by Tim Franklin View Post

      I would just park it.
      Seriously, Tim, that can give the trademark holder another cause to hold you
      liable, especially if the parking page shows ads to competing products of that
      mark. Not to mention various decisions have shown that changing content in
      the midst of a dispute, combined with showing screenshots that displayed the
      domain's previous site, can give the impression one's trying to hide him/herself
      from it.

      Don't take my word for that, though. Feel free to check for yourself, but I've
      got a list of lawyers in my blog (which I wrote somewhat recently) if that will
      help.
      Signature

      David

      {{ DiscussionBoard.errors[252696].message }}
  • Profile picture of the author Simon Nicholls
    I'm not liable anymore anyway - the domain is now theres!
    Signature
    Your Online Golfing Resource
    My Current Website Auctions
    I'm new to the IM world, so please . . . go easy on me!
    {{ DiscussionBoard.errors[253004].message }}
Avatar of Unregistered

Trending Topics