The domain name MedicalPark.com was just awarded to a trademark holder Freiberger Holding GmbH (“Complainant”) in a UDRP.
The domain holder didn’t respond to the complaint yet the one member panel did some very broad over reaching in my opinion and not even consider the fact that the term “medical park” is a term often used by thousands if not tens of thousands of business and centers around the world.
Instead of looking at the case and the term the panel took the word of the complainant and adopted each of its positions.
A Google search of the direct match term “medical park” returns almost 6,000,000 results and none of the top results are going to the “trademark holder”.
Here are just a few of the brick and mortar business that are using this term as part of their name:
I could go on and on showing instances where the term Medical Park is being used, proving the generic nature of the term, but clearly the panel did not under take an independent review but instead accepted the argument of the trademark holder word for word.
Here are the relevant facts and findings of the panel:
“The complainant has a Trademark on the term medical park with the European Union’s Office for Harmonization in the Internal Market (“OHIM”) (Reg. No. 8,479,602 registered February 22, 2010).
“Complainant also owns the MEDICAL PARK and Design mark with the following trademark authorities:Germany’s Patent and Trademark Office (“GPTMO”) (Reg. No. 397 20 832 registered July 5, 1997); OHIM (Reg. No. 1,609,999 registered July 31, 2001); World Intellectual Property Office (“WIPO”) (Reg. No. 683,819 October 27, 1997); and United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,087,832 registered May 2, 2006).”
“Respondent registered or acquired the disputed domain name in 2009, previously using it in an attempt to sell the domain name, and currently using it to offer a parked website with pay-per-click advertising.
“Complainant states that Respondent has parked the disputed domain name and is using it for ‘pay-per-click’ advertising, as shown in a screenshot of the resolving website.”
“Complainant states that Respondent’s disputed domain name previously resolved to a website stating, “DOMAIN FOR SALE,” and remains for sale via a link on the current resolving website. Complainant further states that Respondent offered to sell the disputed domain name for $25,000 and $45,600.”
“The Panel finds that these offers to sell the disputed domain name are further evidence that Respondent does not have rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). ”
“Complainant argues that Respondent attempted to sell the disputed domain name to the general public, and to Complainant – first for $45,600 and then for $25,000. The Panel finds that Respondent’s offers to sell the disputed domain name are evidence of bad faith registration and use”
“Respondent uses the disputed domain name to direct Internet users to pay-per-click advertising, which disrupts Complainant’s business. The Panel finds that this disruption is evidence of bad faith registration and use under Policy ¶ 4(b)(iii).”
“Complainant also asserts that Respondent owns more than 1,790 domain names in addition to the name in dispute. Complainant asserts that because Respondent is a sophisticated registrant of domain names, that it cannot “willfully close his eye to colliding third-party rights in a trade mark.”
“Further, Complainant asserts that, because it has registered its marks worldwide, Respondent should have been aware of Complainant’s mark. ”
“Complainant cites several UDRP cases in support of the proposition that because Respondent is a “sophisticated domainer” there may be an inference of Respondent’s knowledge as to a trademark owners’ rights in a mark. Here, the Panel finds that Respondent had actual knowledge of Complainant’s mark prior to acquiring the disputed domain name and thus finds that Respondent registered the disputed domain name in bad faith”
“Respondent is a sophisticated registrant of domain names” – sounds like someone we all know and love . . . 😉
The name was “registered” after a trademark filed in the US and Germany.
The name displayed ads (likely competing)
The name was offered for $40,000 (above acquisition costs I presume).
The respondent failed to respond and offer a defense
I guess the “NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE “MEDICAL PARK” APART FROM THE MARK AS SHOWN” is something the domain owner should have brought up.
Lesson? Respond.
Yes but a panel is suppose to analyze the case even if there is no response and I have seen plenty of cases where the panel held for the domain holder even if the domain holder did not respond.
I think this is a case of a lazy URDP panelist that took the complainants arguments without question or any independent research
As Manny Pacquio found out against Timothy Bradley.
Don’t leave anything in the hands of incompetent judge(s).
We should have a UDRP Panelist Wall Of Shame (is there one?)
Another pathetic one.
ICANN created this process that is able to be so abused and has done nothing to correct it.
Good luck to anyone who puts their trust in ICANN to be able to run the new gTLD program.
Brad
ha haha…dumb domainers
Doesn’t this completely fly in the face of a number of previous decisions having supported that parking and/or offering a domain for sale does not constitute bad faith registration?
Did I imagine this?
There are certainly plenty of decisions that have went the other way
Again and IMHO a case of a lazy panelist who just accepted everything the TM holder had to say
If you do not show a pule – that represents non use apparantly for UDRP
Very incompetent.
ICANN is one lazy-ass organization for standing by idly while innocent domain owners get raped.
There was a disclaimer in the TM registration?
*facepalm*
The Complainant’s attorney is the same guy who once alleged in a lawsuit that Ultimate Search was a fictitious entity made up by Moniker.
A real rocket scientist that guy.
” The Panel finds that Respondent’s offers to sell the disputed domain name are evidence of bad faith registration and use””
Bullshit.
NAF Mark Warner 2001 v. Larson, FA 95746, affirmed again in Lodgeworks L.P. v. Sierra Hospitality
“finding that considering or offering to sell a domain name is insufficient to amount to bad faith under the Policy; the domain name must be registered *primarily* (em theirs) for the purpose of selling it to the owner of a trademark…”
They can’t get there from here.
Another awful decision.
what was goi showing on the site? same business area as freiberger?
what about visitors from all the countries where freiberger does NOT have a trademark?
udrp panels are not bound by precedent. but they of course can use it as they please to support however they want to decide in a given case.
arbitration is maybe less stressful than litigation, but it’s hard to argue it is necessarily more fair.
would it be untrue to suggest that the advantage goes to companies that can afford to buy the panelists and the outcome they desire?
Why is everybody analyzing the decision? When you see a case like this you scoot down to see who was on the panel. There we go, Sandy Franklin, the one who had camper.us transferred back in 2002 (http://www.adrforum.com/domains/decisions/118188.htm).
She is a professional arbitrator who makes money from arbitration disputes:
http://www.technologyadr.com/
If she gives bad decisions then those bad decisions are used to generate more arbitration disputes because there is no appeal process. if you look at her decision you can she she is very good at using those past decisions in this way. The actual merits of the case are not relevant to what she is doing.
@L
Your reference the offer was response to interest.
In this case it appears (though it’s tough to tell) the offer was instigated by the owner.
You are thus not comparing like for like.
@ Unknown
Based on my reading of those findings, who offers who isn’t a relevant point but rather whether the name was registered primarily with the purpose of selling it to a mark holder.
This panelist broke with established precedence by holding that an offer to sell constituted bad faith in and of itself, period, whereas Warner v. Larson (Lodgeworks v. Sierra affirming) established that in order for a sale offer to constitute bad faith, the registration itself must be ‘primarily’ based on the markholders interest.
‘Tailored interest’ is a hard case to make with an unarguably generic term (I occasionally see a sports endocrinologist who’s address is literally “Medical Park”, and I’ve never been to Germany.) I seriously doubt anyone can make a compelling case that “Medical Park” is whimsical or otherwise not generic in nature.
I’ll admit that contacting a mark holder and offering to sell an eponymous domain is poking the bear, generic or not, but this decision basically asserts that markholders have some kind of priority interest in any generic term domain that overlaps with their mark, superseding anyone who might own it in good faith, albeit speculatively.
“The respondent failed to respond and offer a defense”
Case closed. If you get a speeding ticket, fight it, and the cop doesn’t show up in court, the case is dropped.
“Eighty percent of success is showing up.” -Woody Allen
Moral of the story, show up. In this, case, file a response.
Dang
I knew it was a Korean
They rarely reply to UDRPs
Probably don’t understand how the UDRP works
Just the usual weak pricks with 1000+ domains – with his “media” company. LOL
Serve him a UDRP & they just cave in
Serves him right
Stupid weak fuckers
This domain was worth fighting for. Owning 1700 domains is easy. Keeping them appears to be getting a lot harder.
Maybe fighting for this domain wasn’t worth it? Who searches for the term “Medical Park”? I’ll bet the Estibot value on MedicalPark.com is less than $2,000 – I wouldn’t pay the $5K+ to fight for this one.
I guess if someone has more money than you they can take what ever they want from you. The owner bought the domain name fair and square. I mean medical park is generic as they come. Otherwise no one should be able to use the term medical park in name or title of something. That company should of paid up or bought another domain name. What happens, if the owner could not respond in time so this means we all automatically lose what we own cause some for profit business wants what we have? Eminent Domain is suppose to be for the public good so where is the public good for taking this domain name? Makes me mad!
I know GamePark.com sold for $25K in a name or snap auction about a year ago, that sets a precedent pretty high for medical park.
This further proves the UDRP process is completely useless and corrupt, a broken clock is right twice a day, a monkey throwing darts at a board can choose better. And the same “nonprofit” ICANN group is bringing in hundreds of millions on their other scam (new TLDs) while we stakeholders keep getting screwed. If everyone else in the industry was always as vocal as me, and put their money where their mouth is, all these scams would not persist against our interests. The other enormous scam is these auctions where people who dont have any rights to the names that are supposed to be deleted instead auction them off.
@ Mike Mann,
Talk about the evils of unregulated Opportunist Capitalism, This is one that particularly MAKES THE HAIR ON MY HEAD STAND UP =
” The other enormous scam is these auctions where people who dont have any rights to the names that are supposed to be deleted instead auction them off. ”
Thank you Mike for your Bravery, we all commend you for it.
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
Mike
“”If everyone else in the industry was always as vocal as me, and put their money where their mouth is, all these scams would not persist against our interests.””
Mike exactly where and how is your money going to protect domainers interests when it comes to ICANN matters or UDRP reform or any such issues.
The only group I’m aware of that represents domainers interests in ICANN land and in Congress world is the ICA which as far as I know your not a member of and I’m not sure that you were ever a member of.
NameMedia isn’t a member either.
Did you fund the CFIT litigation against Verisign because I’m not aware of that one either.
I’m just saying
Hello, MHB
Has the thought ever ocurred to anyone that We meaning Businessmen and Domainers hold the Key to cyberspaces INFRASTRUCTURE ?
This surely is the FACTUAL CASE !
Why as KEY HOKDERS do we put up with the GOOGLE.COMS and their burgeoning force of OBSTRUCTIONISTS !
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
Jeff
If by “we” you mean domainers the last time Verisign reported the percentage of .com/.net held by domainers is was a little less than 10%.
To be a key holder you need to let those in power know you exist again the only lobbyist for domainers as a class that I hear at the ICANN meeting and in the halls of Congress is Phil Corwin of the ICA.
If your not a member than your not a support and your more like the guy who look through the keyhole to see what’s on the other side than a keyholder
@ MHB
If by “we” you mean domainers the last time Verisign reported the percentage of .com/.net held by domainers is was a little less than 10%.
To be a key holder you need to let those in power know you exist again the only lobbyist for domainers as a class that I hear at the ICANN meeting and in the halls of Congress is Phil Corwin of the ICA.
If your not a member than your not a support and your more like the guy who look through the keyhole to see what’s on the other side than a keyholde
”
You may not know of this , but I circulated a business plan and made an ULTIMATE PLEDGE OF the very Valuable Web Site you all; know of as a key force in the Domaining Industry FOR THE Domaing Industries well being. Only to be ignored !
So this stuff about possibly being Guilty about not being a member just doesn’t Wash with me. You would be hard pressed to find anyone who has commited to the well being of domainers, just because I have not attended Traffic and others like it means nothing. I am slightly bent out of shape here ! Thank You Very Much !
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
Jeff
Did I mention attending TRAFFIC?
Do you go to the ICANN meetings and get up and talk during the public session as your entitled to and tell the ICANN board whatever you want?
Do you support the ICA financially?
Do you have a lobbyist that represents domainers interests in Washington?
That is what I care about
It’s so refreshing to see someone much, much crazier than me.
Why respond to that nut Jeff Schneider?
Impossible to take seriously anything an assclown nut says about .COM whose best domain is…wait for it…
usebiz.com
And get this – he wants $6M for it PLUS equity share! LOL
Was it REALLY the best domain he could find in Mar 2000?! WTF
He wouldn’t know a good domain if it hit him in the face
I thought these idiot dreamers were pounded out of the market in the great Tech crash of 2000
Look at his “flagship” site – it looks like it was designed by some 12 yr old kid…back in 1998
And as for this self proclaimed “marketing expert”..LOL
Anytime you need to write a book about the opportunity & benefits of owning a domain…let’s just say…you should stick to your day job…
Oh I forgot, he last worked 10 yrs ago before getting fired for stupidity.
And now at the age of 40+ you still live with your mom…dreaming about hitting the domaining lottery ticket with usebiz.com LOl
These are some of his other gems:
americanebiz.com
hongkongebiz.com
Dharmaebiz.com
Askebiz.com
bizdirlib.com
ADVERTISINGEBIZ.COM
AGELESSEBIZ.COM
AMERICANEBIZ.COM
ASTROLOGYEBIZ.COM
BONANZAEBIZ.com
maxiebiz.com
popebiz.com
Entertainmentebiz.com
Looks like nutcase Schneider’s got a monopoly on [__]ebiz.com names
Dang, were these the best domains he could register back in Mar 2000?! WTF
Oh Wait…BUT..BUT..these are .coms
“Dot com is king” as he will repeat like a mindless parrot
When he gets zero inquiries, “They don’t get it” he tells ya. LOL
What a fucking nutcase
Mike exactly where and how is your money going to protect domainers interests when it comes to ICANN matters or UDRP reform or any such issues.
—I was the first to fight this stuff, I personally lobbied Capitol Hill and Justice Department regarding domain auctions and paid DC lobbyists, and in general I support loads of charitable causes and political items, all putting my money where my mouth is, this isnt my fight but just pointing out the scam
The only group I’m aware of that represents domainers interests in ICANN land and in Congress world is the ICA which as far as I know your not a member of and I’m not sure that you were ever a member of.
NameMedia isn’t a member either.
Did you fund the CFIT litigation against Verisign because I’m not aware of that one either.
I’m just saying
—Thank god Im not a lawyer, I actually have to work
Eventhough the whole auction and drop situation is a scam, its not my battle any more, all I can do at this point is try to profit and use the proceeds for our charitable works.
Of course the whole GTLD thing is a huge racket by ICANN, which is supposed to be a charity to help domain owners. GTLDs may or may not be a good idea, but they arent “necessary” for anything. Someone should have done it more professionally and used whatever proceeds for actual charity.
ICA … are they a “conmmerce association” or fighting for the rights of domain owners? (or is that supposed to be the same thing?). I always laugh when I see those ads with the Police in riot gear.
What does the ICA think about the Domain Tools lawsuit that got dismissed? Does this fit within their code of conduct (as Thought Convergence claims to be their parent Company)?
@ Mike Mann
“Someone should have done it more professionally and used whatever proceeds for actual charity.”
Hello Mike, you have no idea how much I am behind you. There is more to life than Money, there is this rare commodity calledSharing . NOT = Hogs at the Trough “
@ Mike Mann
“Someone should have done it more professionally and used whatever proceeds for actual charity.”
Hello Mike, you have no idea how much I am behind you. There is more to life than Money, there is this rare commodity called Sharing .
NOT = Hogs at the Trough ”
Gratefully, Jeff Schneider (Contact Group ) (Metal Tiger)
@ MHB
I have no quarrel with you. We are very much alike and that is why we irritate the hell out of one another.
I have the CHOPS equal to yours and in a Debate I know who would sit down the winner.
You need to start being Civil to others that arent in your CLUB . Attorneys tend to be huge pains in the ass. I know I dealt with a lot of them and I dont see this in you under the Bluster of Battle as they say.
I respect your opinions you in turn need to tone down the combativeness. This back and forth ego battle shit is a sign of weakness not leadership.
Lets be Civil !
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
“Moral of the story, show up. In this, case, file a response.”
The moral of the story is to move this from kangaroo court to a real court where reverse hijacking can actually result in a monetary penalty.
When I think back on the various hats I’ve worn in this life, I cannot think of a single place where the mentally ill roamed any more freely, howling and barking at the moon as a standard part of the industry discourse, than “domaining’.
@ Aggro or ????? or ??? or ???
In a day and age where I.Q.s are going up I find myself dealing with you. Why I even ackknowledge your miserable existence, is not for my sake but for others.
YOU ARE SEVEVERLY OUT OF TOUCH WITH REALITY. Do you even realize that??
Do you realize how silly you look to others?
I know you are dying for attention, that is obvious.
Please for your sake and others , peddle your B.S. elsewhere you are wearing extremely thin here.
Gratefully, Jeff Schneider (Contact Group) (Metal Tiger)
Hello MHB,
I respect you #1
#2 = it takes a man of courage to not censor feedback. I am grateful to you for that !
Cheers , Jeff
@L
My reading is: if you register a domain and you are approached and make an offer to sell that this puts you in better standing than registering a domain and then offering it to a TM holder.
That’s why not comparing like to like.
That said I believe a recent ruling implied that if you make an offer to MULTIPLE TM holders you could not possible have targeted the specific TM holder. Therefore, my reasoning is, if you are selling something that could potentially be considered a TM (but is also something of a generic) offer it to many parties because that would absolve you of targeting a TM holder.
In this instance it’s all moot because I don’t believe there was even a valid TM.
Check out the history here, with me leading the complaints and starting and funding Domain Justice Coalition lobbying group on day one.
http://www2.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/01-22-2002/0001652249&EDATE=
Michael Mann, president of the leading secondary domain market,
BuyDomains.com, flatly calls VeriSign’s anticompetitive efforts “a sham on all
domain consumers and VeriSign competitors.” BuyDomains.com and dozens of other
competitors are urging authorities to put a halt to what they consider to be
outrageously anticompetitive behavior. Competitors want all expired domains to
be deleted immediately and put back into circulation, thereby allowing all
consumers access to available domain names, and allowing the free market to
flourish and for VeriSign to rescind its WLS proposal.
This and other interesting background is also discussed in The Domain Game by David Kesmodel
but not the domain Oogle.com 🙂
thenextweb.com/google/2012/07/26/google-loses-dispute-over-oogle-com-domain-name/
but not the domain Oogle . com 🙂
thenextweb.com/google/2012/07/26/google-loses-dispute-over-oogle-com-domain-name/
i agree with his stated views here. but is mike mann being sincere? wasn’t he involved with negotiating with icann for rights to “new” cctld’s?
these are cctld’s that have yet to be re-purposed and exploited. cctld’s have been a sort of end-around way to get “new gtlds”. there many examples, going back to the early 2000’s.
is it true that cctld’s were originally the brainchild of jon postel and colleagues? was the intent was for them to be used for selling to clueless domainer-wannabes or selling at inflated prices to large internet players like amazon, to internet startups or internet vc (e.g., as we’ve seen with .me and .co)? does it matter?
I don’t think the phrase “medical park” is generic to be
honest…
Anon –
“When I think back on the various hats I’ve worn in this life, I cannot think of a single place where the mentally ill roamed any more freely, howling and barking at the moon as a standard part of the industry discourse, than “domaining’.”
I will be on the underground and remember this and start laughing, looking like a right nutter.
Classic.
“I don’t think the phrase “medical park” is generic”
There are some folks that do not think ri.sk is not a domain hack
Actually medical park is more commonly used than generic.
Anon – (and back) –
“I cannot think of a single place where the mentally ill roamed any more freely, howling and barking at the moon as a standard part of the industry discourse, than “domaining’.””
Yes – It Should be the first paragraph the “domaining for suckers” handbook
@brianwick
I know that you’re trying to make a point Brian, but
you’ll have to tell the person helping you to read to
be a little more explicit, since you’re not at all clear.
My remark was that “medical park” isn’t a generic
reference. If you doubt the comment then say that.
Of course, “risk” is an entirely generic word, but lets
not go down the road again of you trying to pick on
my domain because you fall so short in simple
discussion…
🙂
ri.sk –
The issue is the credibility of someone who feels the need to “advertise” ri.sk onthis forum.
It goes back to the “howling and barking at the moon” comments – that is all 🙂
@brianwick
Oh dear, you’re still not making sense Brian…
I know you have emotional problems, but could I
simply just ask that you ignore me from now on?
Thanks,