looking for precedent guidance
I'm hoping that someone is able to help me out in identifying precedent whereby a potential buyer makes an unsolicited approach for a name, a sale price is given though not accepted (nor indeed rejected; just no reply to the sale price offer), followed by a cease & desist from the potential buyer.
If the issue escalates and results in a UDRP, does the fact that the potential buyer made an unsolicited approach have any bearing on matters?
It suggests to me that if the buyer was prepared to buy the name, it demonstrates that said buyer acknowledges the fact that it has no rights to the name - otherwise the approach is more likely to be an immediate C&D with no offer to purchase.
The strange thing is that the initial approach by the buyer was made 2 and half years ago with the C&D notice just issued a month or so ago.
Interestingly, the buyer was granted a trade mark on the name in January this year, so I guess the current activity is no coincidence.
I’ve trawled the board’s positive wording database, but can’t see any precedent that I could use in defending my position, so any pointers would be appreciated.
I'd have thought these might be useful in defending the price element - but I do seem to recall having read at least one case in the past where a panelist took an offer to buy by the complainant as a sign that they didn't consider they had rights to it. I'll have a dig around.
The subsequent suggestion by the Respondent that he might sell the name for US $75,000 or more was in response to a clear request from the Complainant stating "do you have plans with it, or is it possible to buy it?" The Panel is not in any event satisfied the offer to sell was made in bad faith but it certainly does not establish that the original registration was made in bad faith.
The Panelist is of the opinion that the fact that the Respondent has offered to sell the contested domain name to the Complainant upon having been contacted by the Complainant on several occasions is not sufficient to establish bad faith.
Further, the Panel shall remark that the fact that you, when approached by someone, offers to sell a domain name is not in itself conclusive evidence of bad faith. Even though it is a factor to be considered, in the present case, this factor cannot lead to a conclusion of bad faith. See inter alia Puky GmbH v. Ignatius Agnello, WIPO Case No. D2001-1345.
As far as the Respondent’s offer to sell the domain name for $10,000 is concerned, the evidence establishes that the Complainant approached the Respondent offering to purchase the domain name and that the Respondent replied by asking for a price considerably higher than that offered by the Complainant. On the present facts, and taken in isolation, the Panel finds that the Respondent’s offer to sell the domain name for $10,000 following an initial approach by the Complainant does not indicate bad faith registration or use. Whilst the price might be high, on the evidence before the Panel, the Respondent is the legitimate owner of the domain name and is entitled to seek whatever price he considers appropriate.
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This thread raises important issues that others may face at some time - thanks guys.
Thanks for this Safe, much obliged.
I might mention that I was particularly sympathetic to the potential buyer's apparent lack of funds and my asking price was very reasonable - indeed almost certainly less that the cost of having a lawyer draw up and issue a C&D.
It would be great if you or any other member was able to reference a dispute where a panelist took an offer to buy by the complainant as a sign that they didn't consider they had rights to it.
Unlikely to ever be the case
Originally posted by Duncan
...where a panelist took an offer to buy by the complainant as a sign that they didn't consider they had rights to it.
Telling it like it is. The truth hurts...
Dont know if this will help at all:
The Complainant contends that the Respondent’s abusive intent is apparent from the exchange of emails, which took place early last year. That exchange was initiated by an earlier series of approaches to the Respondent by the Complainant’s broker wanting to know if the Respondent was prepared to sell the Domain Name. Initially, the Respondent failed to respond, but it eventually indicated that it would accept nothing less than a 5-figure sum. The Complainant’s broker sent a ‘chaser’ offering $10,000. On that offer being turned down, the broker asked if $100,000 would suffice. The Respondent said that it probably would suffice and the correspondence terminated there. Given that the Respondent had spent over $8,000 on acquiring the Domain Name, the Panel can understand why the Respondent regarded the offered $10,000 as being inadequate. In any event, there is nothing in that exchange of emails which throws any light on what the Respondent’s motives were in acquiring the Domain Name. Specifically, the Panel is not prepared to accept that it proves that the Respondent registered the Domain Name for the purpose of selling it to the Complainant at a profit.