GOODIES TO GO! ™
September 20, 1999 — Newsletter #46
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Please visit https://www.htmlgoodies.com
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Greetings, Weekend Silicon Warriors,
Ever heard the term “so smart, he’s dumb”? That’s me. Last
week I wrote that I would follow the spam artist’s guidelines
and reply to messages with the word “Remove” in the subject
line. Well, gobs of e-mail showed up telling me that I was
simply falling into the spammer’s hands by alerting him or
her that they had sent their mail to a working e-mail address.
Darn. I should have caught that one.
Did you hear?
>SEGA has released their new Dreamcast game player. It’s the
future of computer speed processing at 128-bits. There are
problems. Apparently some lower bit rate games are not playing
well with the machine, if they’re playing at all. No problem.
Soon SEGA will simply forgo the machine and implant the games
directly into your thumbs.
>The great state of Pennsylvania has called for a license plate
recall. Governor Tom Ridge wants to get out the new plates
bearing the state’s Web address: www.state.pa.us. I guess he
wants to be ready when Internet access finally comes to a
dashboard near you.
>Search your hard drives. You’re looking for a file named
“W97M/Thus.A.” That’s the so-called “Thursday Virus” that is
expected to explode on December 13th. (Yes, I know that’s a
Monday. I didn’t name it.) Check your virus software
company’s home page for update software.
Now, onto today’s topic…
The Domain Game (sung to the tune of “The Name Game” by
Shirley Ellis):
Let’s do Wendy’s!
Wendy’s Wendy’s Bo Wendys.org
Bo-nanny Fanna Bo WendysRestaurants.com
Fee Fi Mo WendysIntInc.com
Wendy’s!
Oh sure, Dave Thomas might seem like a good guy, but mess
with his company name and he’ll come down hard.
The hamburger chain Wendy’s is suing Brendan Hofstadter and
his Dallas company, Beswick Adams Corporation, over the use
of the Wendy’s name… although he’s never used it. Wendy’s
claims that Hofstadter registered the following domain names:
– www.Wendys.org
– www.WendysRestaurant.com
– www.WendysRestaurants.com
– WendysIntlInc.com
This in an effort to use the names to extort money from the
99-cent menu. (In case you’re wondering, Wendy’s actual Web
domain is www.wendys.com.)
At this point, let me stop and ask your opinion. Good idea
(buying the domains, I mean) or bad idea (Wendy’s should be
suing)? The law is on the side of the business because of
trademark violation concerns, but is it all so cut and dry?
Wendy’s argues that this is a case of extortion. Hofstadter
wants money or he may sell the domains to someone who hates
Wendy’s hamburgers. I didn’t know there was such a person. I
love their chili!
There is something to the argument as Hofstadter’s company
did send a letter to Wendy’s CEO, Gordon F. Teter, asking for
him to buy the domains. In addition, Hofstadter has purchased
other domain names that relate to Taco Bell, Subway, Coke,
Ameritech, State Farm Insurance, and others. (This is what
lawyer types call a “pattern.” I watch “Ally McBeal” and “The
Practice,” I know lawyer stuff.)
So, is Hofstadter a bad guy or a guy who thought he had a
good idea that is about to blow up in his face? I’ll bet it’s
a little of both. I say that because the smallest amount of
research would have turned up a February 11 decision by a
Texas Judge that made two men turn over the domains
“microsoftwindows.com” and “microsoftoffice.com” from pulling
a similar scheme. Heck, there’s even a name for the practice
of buying domain names and reselling them: cyberpiracy.
I can’t tell you how happy I am that they didn’t call it
e-piracy.
I guess I understand why this is a problem and why companies
wouldn’t want this type of thing to occur. What I want to
know is how in the world Hofstadter and these two guys in
Texas got these domain names. I mean, microsoftwindows.com?!
That was left hanging out there for someone to buy?!
I’m about to go into uncontrollable questioning mode…
Can a company, say Wendy’s, really stand behind the trademark
law and claim that any and all incarnations of the business
title belong to them? And will that only include domains they
dislike? What about “IloveWendys.com”? Would they be upset at
that, too? Does this also extend to altering the title? What
if I owned “micromoosoft.com,” a site that had funny pictures
of cows playing with computers? Have I infringed there, too?
I own “htmlgoodies.com”. Should I be upset over the guy who
owns “goodies.com”? It’s out there.
There’s also a “JoeBurns.com”. Can I claim more celebrity and
get the name? Hopefully, no. But what if it was
“AlecBaldwin.com” owned by Alec Baldwin, auto mechanic from
Bangor, Maine? Can the Baldwin brother sue to get the name?
Hope not.
What if a family, The Browns, bought the domain
www.browns.com? Can the city of Cleveland file suit? Hope not,
again.
Does this also extend to .org and .net suffixes? What if The
Browns bought “browns.net”? Better yet, what if a town was
raising money for a little girl named Wendy who needed an
operation and they attempted to buy www.wendys.org? Hopefully,
Wendy’s restaurants have made a point of buying up all of the
similar suffixes at this point.
Hopefully, the trademark law will take into account the
intent of the people who purchase the domain. Yes, yes, I too
believe Hofstadter set out to suck money out of Wendy’s till,
but what will happen when a not-so-cut-and-dry case comes up?
It’s going to happen soon. I guarantee it.
Should the law focus less on the straightforward purchasing
of the name and more on what the user does with the name?
You see, if I bought WendysRestaurant.com from Hofstadter
then set out to be a real jerk and defame the Wendy’s logo
and name, I would be guilty of so much more than simply
trademark infringement. That sets me up for big, big fines
that are easily supported in court.
But by suing at this point, with none of the domains even
live, Wendy’s is going on the prospect that this is extortion
and that if they don’t buy the domains, those may be sold to
bad people just waiting to draw a moustache on Wendy. That’s
a bit of a leap, but do you think it’s justified? So far,
that’s been the thinking and it has held up.
I offer this argument because it seems like once the name of
the company is in the domain name, then all free speech bets
are off. Let’s say I dislike Wendy’s hamburgers for one reason
or another. (I don’t, by the way — it’s my fast food of
choice.) I get a site on an ISP and post why I hate Wendy’s
hamburgers. Can I be sued for that? I would suggest that I
couldn’t.
Now, a lawyer can dispute this, but it sounds like free speech
of my opinion: The site is definitely not a Wendy’s site and
I am not misrepresenting myself as someone from Wendy’s
Incorporated. The same type of discussion just came up over
the posting of some sensitive documents taken from Ford. The
documents were allowed to remain posted over many of the same
points noted above. Plus, Wendy’s would look like such a
bully if they went after one person posting their views on
square hamburgers.
So, it must be the name, which also bothers me a bit. The
world has become Web savvy. Someone looking for Wendy’s on
the Web would find it by reading the URL off something
from the restaurant, entering “Wendy’s” into a search engine,
or by trying www.wendys.com if they just decided to take a
shot at the address. I do not see anyone putting in
WendysRestaurants.com or WendysIntlInc.com to get to the
site. You’d really have to be looking to get that by mistake
and believe it’s a Wendy’s endorsed site. Now we’re back to
the argument of what I do with the site rather than simply
grabbing the name.
So, what do I suggest? If you run a business and want to go
on the Web, grab all the domain names you can think of that
deal with your company. In other words, do what Hofstadter
did, but do it first. Yes, it will cost a bit of cash, but
probably less than a lawsuit. I only offer that suggestion
because that’s what my wife and I did when we bought the
domains for her business idea. We bought four altogether,
thinking that any further altering of the name would be so
far-fetched it couldn’t been done by accident.
Hopefully, we got them all and we don’t hear from a Hofstadter
in the near future.
>>>>>>>>>>>>>>>>>>>>>>
And that’s that. Another newsletter comes to an end. Thanks
for reading!
Joe Burns, Ph.D.
And Remember: In weather forecasting, technically there is no
such thing as “partly sunny.” There is always sun (except at
night… picky, picky, picky). The correct term is “party
cloudy.”