Competition bought .au domain

[wotnow]

Hi I have a client who through not knowing any better or receiving the right advice only purchased the .com of their business name. When I came on board to redesign their website I asked about the .au and we discovered that their direct competition had bought it and was in the process of building a site to re-direct to their website. They are a franchise and have used one of their employees (a gardener I think) to buy my clients .au domain.

My clients domain name is broomedaycare.com and the franchise is mulberrytree.com.au. I rang the headoffice and asked them about selling our domain name but they were not interested. I did say that I thought it was unethical but they obviously think its good business.

I have advised my client to buy broomedaycarecentre.com and .au and wondered whether we could return the favour and buy mulberrytreecentre.com and au. I did speak to my clients domain registrar but they said that mulberrytree might be copyrighted. I dont think so but how can we find out?

Thanks for any advice

 

[joe]

Sorry to say but sounds like your competitor has technically done nothing wrong here. "Broome daycare" is a generic phrase that describes their business and they, like anybody else, have the right to register and develop the .com.au. "Mulberry" on the other hand is a branded term, in this case used to describe a day care business in Broome.

Don't register anything related to their business name, it won't do anybody any good and it would paint a bad picture of your client. Best case scenario you would waste $20+. You couldn't argue that by developing on their name you were not attempting to pass off as them.

I suppose another point to mention is don't brand yourself with a generic term unless you can defend the namespace i.e. register/purchase all the domains/usernames for that keyword.

You might lose direct traffic to them if you promote your generic .com but you're well placed in terms of search and that's a big plus for your client in terms of SEO. Your options are to promote the .com or develop a new brand, whether it's a distinctive mark or a generic phrase you can scoop the pool on.

Welcome to the forum BTW, you should post an introduction. Probably best not to announce your plans in terms of domains you want to register. You'll learn quickly that generic domains are fair game, as long as you play by the rules

 

[wotnow]

Hi Thanks for your response. I did introduce myself in the introduction section and yes if I was really worried about the domain name I would not have posted it.

I thought that there was some law/rule that you could not purchase a domain that had the business name of another? How is broome day care more generic than mulbrytree day care? One is a location and one is the name of a bush?

Sorry Domain names are not my strong point ... I only know to advise clients to get both the .com and the .au

 

[snoopy]

They've had some bad advice to go with a .com.

Term sounds simply descriptive of the service offered to me, totally different to mulberry tree for childcare use. "Broome daycare" is probably one of the most relevant search term to competitor running daycare centre in Broome. I'd say they'd have very weak rights here because the name of the business simply describes the location + service and nothing more.

 

[Cooper Mills DomainLawyer]

Like others have said, as the term is descriptive it makes things difficult. The .au domain space is a first in first served system. If you want to discuss you can PM me.

I would be looking at other generic descriptive domains that you could purchase to generate leads or promote your client's business.

 

[johno69]

.. nevermind.

 

[Data Glasses]

You can use this to check for trademarks etc

http://www.ipaustralia.gov.au/

 

[findtim]

i had a similar experience 10 years ago and once again 5 years ago but i was the "mulberry" , first time i was young and taking the P&^%SS and got a lawyers letter. i was being sued for "passing off" which means if broome day care have been around for a longgggggggg time you can make a claim that "mulberry" are purposely trying to confuse the customer.

consult a lawyer but it i found success is based on who has the deepest pockets to pay lawyers.

the 2nd time was i honestly thought i'd be ok as the domain name was a slight/small variation on the oppositions business name, unfortunately the opposition was the packer newsgroup and once again they had deeper pockets.

in my opinion you are screwed unless you want to spend money on lawyers, you could try to go to the auda but i don't know if thats going to help you?

your other problem is they haven't done anything with the domain so you don't have a leg to stand on ( as that what happened to me the first time ) the reason why they couldn't act on me was that i hadn't even started the website.

this is a big issue and i advise all my clients of the potential risk as you did.

you have good rankings so i would keep an eye on that they don't "stealth" you by pretending to be you.

you're just going to have to watch them and hope they break a law !

 

[wotnow]

Thanks very much for all your advice! I know they dont want to go down the road of lawyers and it is a small town .. so hopefully they will have done themselves more harm than good.

 

[payattention]

It's always best to assume they did not register the domain name for "unethical" reasons because it's just as likely they were unaware of your client given the generic nature of the domain name. That's typically the case when it comes to generic names in my experience which is probably why they won't even consider selling.

I had a similar issue earlier in the year where a business jumped straight into C&D's and other threats from a law firm (who probably charged an arm and a leg yet were totally clueless) and then a 3 person panel over a generic domain name. It cost them at least $5,000 yet they never even bothered to call or discuss it with me in person before doing all of this; quite silly.

As others have mentioned, take a look at some other domains and perhaps even backorder this one incase they decide not to renew it in the future.

 

[wotnow]

Hi thanks .. yes they were well aware that there was an existing business with that name, it is a small town and only 3 day care centres. I heard that they actually got the gardener to buy the domain name and not the owner of the franchise for some legal reason?

 

[Cooper Mills DomainLawyer]

Hi thanks .. yes they were well aware that there was an existing business with that name, it is a small town and only 3 day care centres. I heard that they actually got the gardener to buy the domain name and not the owner of the franchise for some legal reason?

sounds like they wanted to be arms length from this in case there was a claim of some sort - not surprised, sounds very planned.

 

[findtim]

backorder is a good idea.

however i think if you look at mulberry they are a chain that i think obviously knew what they were doing when they registered the domain.

-------------

just for the record in my first instance i droped the domain to avoid legal fees and even though it dropped in 2003 it remains unregistered !!! as i just checked ( idiots )

the second time i once again dropped the domain as i knew i could win against Packer, it is now registered by someone else who they obviously think is not a threat as i may have been ! ? go figure as this means they TRULY had no right to sue me in the first place.

by the way , when i droped the second domain i informed the lawyers it would be available on X date and they didn't register it? ( idiots)

basically you are playing Poker, who has the biggest bluff

when i was sued the first time i was charged by my lawyer $200 each for the first letter saying "tim can do this .... go away" and bascially the lawyers just play games with your money , the next letter i told my lawyer to do was " tim has informed us he is no longer requiring our services, you must now deal with tim" ... that cost me another $200.

the second time i was sued i simply picked up the phone and rang the lawyer, they said "get your lawyer to contact us" ( playing the game) and i said " i am my lawyer" , so she kept sending me email threats and i kept ringing her back (frustrated the HELL out of her ) , in the end i just said " what do you want" ? and she said " shut the site down" ........... so i did

what i am trying to say here is, it could be worth bluffing them with 1 lawyer letter... you never know what can happen? it scared me off, and i believe it could work for you........ its worth $200 i think in the longgggggggg run

 

[findtim]

sorry... i missed the "gardener" reference.

well if this ISSSS the case then ATTACK, its worth $200 right now as i think we should all be thinking its not about now its about the future, if they have done this the longer you leave it the harder it will get to prove your case.

Attack the gardener with legal implecations before you even go to a lawyer, just phone the person and say "this is what is going to happen..... and we don't want it to get to this..... so we are willing to pay you a royality of $XX.00 and we can all forget it"

i think you have the POWER of the small town on your side, maybe the gardener is the gardener of some of the parents whos children go to the day care??? maybe the gardener starts to loose work?

what i try to do always is WIN WIN, if i think my actions are not WIN WIN for the user/community then i do not go there. the internet can bring DOWN governments so thus it can also bring down a gardener in broome !

WIN WIN.... well of course i always PUSH the envelope as if you don't you never know how far you can go, but knowing when to walk away is a good thing.

RING the gardener.