There is a lot of talk on domainer blogs about developing domains. With PPC revenue down and the tremendous amount of uncertainty surrounding parking pages, domainers are now developing their most valuable domains using a variety of techniques. One tremendous benefit which development can provide is rarely discussed. Most every one, two word and three word descriptive domain likely has trademark issues in one market or another. Parking these pages can result in serving up ad links for competitors of trademark holders in what would otherwise be a descriptive domain. For instance, the domain apple.com (which I am using only as an example) could serve up Google or Yahoo ads for a variety of different products and services including fruit, produce markets and related goods. However, the domain apple.com, could not serve up ads for computers or other technology items consistent with Macintosh’s trademark registration for “apple.” A failure to exclude technology products from the ads being served up on a parking page could result in a transfer of the domain to a trademark holder under the UDRP.
We advise all of our domain portfolio holders that they must be proactive in protecting their most valuable domains. This means understanding what trademark rights may exist surrounding their generic or otherwise descriptive domains and ensuring that they are excluding that category of ads from their parked pages. In some instances, we recommend removing the parked pages altogether, although this may also result in a finding of bad faith for nonuse. The best alternative is to develop the domain in a way which focuses on the non-infringing use. In the case of apple, it would be ensuring that the content on the page dealt exclusively with, for instance, produce. Development offers the possibility of protecting valuable domains from unwanted UDRP transfer orders and threat letters from attorneys alleging cybersquatting.
Domainers cannot have it both ways. They cannot claim that their domain is generic or descriptive, while at the same time allowing their parking program to serve up advertisements which play off the trademark rights of others. Domainers who complain about trademark law often fail to make sound business decisions concerning their domain portfolios. Trademark law is what it is. It is better to understand and appreciate the potential trademark rights of third parties and avoid doing anything which will end up being Exhibit A on a UDRP Complaint. In most cases, the domain itself is far more valuable than the PPC revenue which might be generated from a parked page.
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