Advice needed on Damages

[suthra]

Hi pals,
I recently owned a typo of a famous website.
Consider for example: Times.com and i registered Time.com(typo of times)

I joined an affiliate program (say for example>> india.com (where both india.com and times.com are in the same line of business.)
and used the following words

Time.com is now a part of india.com
and added an image which will redirect the users upon clicking to my affiliate link at india.com.

Now, times.com filed a case in court against me and i was ordered to immediately shutdown my site time.com which i did.

Now they have filed for damages, that i was trying to spoil their name through this site.

Is this valid?.

Any help will really be appreciated , iam really worried now.

They dint even issue a notice or warning letter before filing for a case or damages.

Thanks a lot

Sarathy.s

 

[primacomputer]

In a nutshell, yes they can sue for damages. In the case of a typo I think it would be pretty easy for them to prove their case. You can be liable to pay:
1.Any money they lost through your use of the name
2.Any money you made through use of their name
3.Putative damages
4.Costs

You should consult an attorney immediately and hope he can help you limit the payout.

 

[suthra]

Thanks for the reply Prima, ne more advice would be greatly appreciated.

 

[suthra]

Ne further advice on this issue will be highly appreciated

 

[mcfry]

Sounds like you got an answer. This doesn't seem like the kind of thing a forum is going to help you with.

It's time to get a lawyer.


best of luck

 

[primacomputer]

The best piece of advice I could possibly give at this point is to contact a lawyer You can probably find someone who is willing to sit down and listen to your story and lay out some basic options before starting the meter.

A lot of it depends on how open the company is to resolving things outside the courts. From the sounds of your previous dealings with them this doesn't look likely. Still it would be worth a try. A key factor in this is how much they are likely to be awarded. If you only made $100 off this then they aren't going to get a lot. Likewise if you only have $100 to your name then they aren't going to get a lot.

If I were somehow stuck in this mess my objective would be to convince them that it simply wasn't worth throwing good money after bad, and offer to pay them any revenue I had made.

 

[dweeb]

awww man. that sucks big time! so that means if you didn't type it wrongly, you would have registered times.com?

 

[Jeanco]

no dweeb.

Example: paypal.com is a registered and existing company. This guy found a typo was available, such as paypals.com. He then redirected this site to an affiliate program making him money off the typo. The company is now sueing him for his use of the name.

I'd offer to simply hand over the domain and leave it at that. Don't offer your profits until they ask for it.

 

[DN Tycoon]

Is the name of the company a word like Time or a name like Paypal because that is important. If it was Time.com and you had Times.com or vice versa then they hav eno case unless you copyrighted their stuff or thrashed their good name. If it's a name like Paypal.com and you have Paypals.com then just hand over the name or whatever they want because you have no case IMO....most importantly get a lawyers advice

 

[mcfry]

Do not just hand over the domain. Let them take it by legal means, if necessary, but don't do anything you don't have to, and that definitely includes offering to give them your profits. The only way I could possibly see it being a good idea to hand over your domain would be if you were not making any money from it, you couldn't afford a lawyer, and the purchase of the domain was not made by an incorporated company, meaning it was made in your own name and you personally could be sued for damages. Other than that, let the courts decide.

 

[primacomputer]

Do not just hand over the domain. Let them take it by legal means

Looks like they are well on their way to doing just that, having already obtained an order to have the site shut down.

The only way I could possibly see it being a good idea to hand over your domain would be if you were not making any money from it, you couldn't afford a lawyer, and the purchase of the domain was not made by an incorporated company, meaning it was made in your own name and you personally could be sued for damages.

Limited liability is not a license to steal or break the law. There is absolutely no question that they could go after him personally for this.

Other than that, let the courts decide.

The courts have already decided. He's been ordered to shut down the site. Why go through the hassle and expense of legal proceedings when you know what the outcome will be?

Don't offer your profits until they ask for it.

They are asking for it. That's what it means to sue for damages. The problem is that if you go through the courts you can get stuck with putative damages, or “profits * x”. Instead of netting no profits you net a loss.

 

[mcfry]

No, PrimaComputer, I think you misunderstood suthra's original post.

As of yet no decision has been made by the courts. It sounds like he has been issued a cease and desist letter and the company has filed a suit. Other than that, we know nothing about outcomes, real or possible, which is why I still stand by my suggestion that he should not act out of turn - if the time comes when the court decides that he must give up his domain and profits, then by all means that's the correct course of action to take.

As for your suggestion that a Limited Liability corporation is unable to "steal or break the law," I'd like to point out that while yes, this is true, a limited liability (or any other structure of incorporation) does offer protection from the seizure of personal assets. In other words, the company filling suit can bankrupt his corporation, but they can't take a dime from him personally.

Suthra, care to clarify if this is the case?

 

[primacomputer]

No, PrimaComputer, I think you misunderstood suthra's original post.

That could well be. The way I read it he had already been ordered to take the site down by the court. That needs to be clarified. Still, he is going to loose the case for damages. Settling out of court would be a good idea.

As for your suggestion that a Limited Liability corporation is unable to "steal or break the law," I'd like to point out that while yes, this is true, a limited liability (or any other structure of incorporation) does offer protection from the seizure of personal assets. In other words, the company filling suit can bankrupt his corporation, but they can't take a dime from him personally.

This is a common misconception. In cases of fraud, negligence, and other improprieties officers/shareholders of a corporation can be held personally liable. Google for “piercing the corporate veil” to find the details of how and why this can occur.

 

[mcfry]

Right, I'm familiar with that. I'm actually a business student, and these are all things we need to know to cover our asses

But before I argue whether or not a judge might decide to pierce the corporate veil (we'd need to know about the assets of suthra's corp, but it doesn't sound like it's well established if existent at all), I want to hear some more specifics from Suthra.

I did make the comment earlier that there's really nothing more that we in a forum can do to help out (other than suggesting harmful solutions, such as offering up your domain or profits), and it's true, but I'd still like for him to follow up on his original post with something more intelligent than "ne more advice would be appreciated."

 

[primacomputer]

I agree that the question of piercing the corporate veil is probably a mute point as his names don't appear to be owned by corporations anyway. Names at certain registers show him having an individual status.

Regardless, this misunderstanding of limited liability is an issue of interest in general to the members here. I feel it's worth pointing out that trademark law is many jurisdictions specifically provide for making the individual responsible for infringements made when action on behalf of a corporation. It's also worth pointing out that generally when you break a law while acting on behalf of a corporation you are personally liable.

Suthra is no amateur when it comes to domain disputes. You may see him as someone who can't tell the difference between a UDRP and a C&D, but I'm confident that if he feels he may be in trouble then he almost certainly is. Based on this I still believe that settling out of court is his best bet.

I also think it would be helpful for him to post more information, but you have to bear in mind that he may not be in a position to do this. Posting further details to a public forum. could seriously harm his position.

 

[AdoptableDomains]

Is the name of the company a word like Time or a name like Paypal because that is important. If it was Time.com and you had Times.com or vice versa then they hav eno case unless you copyrighted their stuff or thrashed their good name.

Actually, that might be true IF the affiliate program used was NOT of a known competitor. If it was, then even if the name is generic, it was used in bad faith.

My advice is to contact a Lawyer at this point who is knowledgeable in domain and IP (Intellectual property) law.

Best of luck.

 

[DropLister]

if the name is TM then its a problem, but the plural and singular of a word are not typos of eachother. dog.com is not a typo of dogs.com and neither can sue eachother reasonably

 

[Zeeble]

Personally, I think it is a TM. Times has now long been associated with the newspaper..... which really does make it a TM rather than a generic word.

 

[DN Tycoon]

Times is not trademarked, it's a common word used with newspapers and some magazines. If it was trademarked all hell would break loose and hundreds of newspapers such as Arkansas Times and Mclean Times, Washington Times and so on would be in constant battle.....You can not trademark a commonly used word as it would not be fair to other businesses.

 

[Zeeble]

actually, you have a very good point there.
I think that suthra certainly has a case. I mean, if its generic.....

 

[IAmAllanShore]

Generic or not, his text of the ad on the site is quite damning, unfortunately

Folks, I love the legal advice section, I've gotten some good nuggets here... but I gotta say, the single best piece of advice you can give right now is "I don't really know, you should get a lawyer".

I would even say edit the text of your orginal post (Admitting things online isn't so kosher), but I'm sure they have screenshots and archived pages already.

Especially if company A isn't really a part of company B... Golly...

Get A Lawyer.

-Allan

 

[primacomputer]

First off, I'm pretty sure the “times” example was just an example. I don't think the word “times” has anything to do with the actual name in question. Secondly, “times” is a trademark:

Word Mark TIMES Goods and Services IC 009. US 038. G & S: Typeface Recorded on a Font Plate or a Data Medium for Use in a Typesetter or Printer. FIRST USE: 19810223. FIRST USE IN COMMERCE: 19810223

This would not stop someone from using it, or even obtaining a trademark for fruit baskets or something of the sort, but if you make a font and call it times they are going to nail you.

 

[jdk]

Didn't he say if the company was Times he registered Time without the "S"? Anyways, how can you TM Time. If it was something like NY Times it would be different.

Care to share the domain name without the extension so we can read about it in the papers?

if the name is TM then its a problem, but the plural and singular of a word are not typos of eachother. dog.com is not a typo of dogs.com and neither can sue eachother reasonably

Try and register Microsofts .com and see what happens.....I bet they will come at you with a huge stick

 

[mcfry]

Something tells me Suthra has been "taken care of."

 

[jdk]

Something tells me Suthra has been "taken care of."

or locked up