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Cease and desist letter from Microsoft

Discussion in 'Legal Issues' started by TheSmegHead, Nov 7, 2008.

  1. #1
    I have owned and operated zunevideo.net for some time now, which ranks #5 for "zune video" - higher than Microsoft's zune.net.

    Today I got a letter from an attorney that claims to represent Microsoft telling me that I must stop using the domain name, transfer it immediately to Microsoft, and sign a letter promising that I will not use any other domains with "zune" in the name.

    I have seen a couple of threads on DP on similar subjects but no resolutions. Is there any more advice that anyone can give here?

    A quick search shows all kinds of sites with "wii" or "ipod" in the name, and lots of other "zune" sites too...how do they stay up if this is truly trademark infringement?
     
    TheSmegHead, Nov 7, 2008 IP
  2. mjewel

    mjewel Prominent Member

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    #2
    Other's infringement is not an excuse. The reason they are still up is that the trademark holder may not know about it or hasn't done anything about it yet. It's their trademark and they can decide how they want to protect it. The higher profile your site, the greater your chances of receiving a C&D or being sued. Microsoft is known to be fairly aggressive in protecting its intellectual property. It you had infringed upon a Mattel trademark, they likely would have just sued you for damages and all income the site ever generated.

    Registering a domain name with a trademark and attempting to ride their goodwill is never a good idea. Assuming the letter is legitimate (and it likely is) you now need to turn over the domain, or wait for a WIPO action or lawsuit.
     
    mjewel, Nov 7, 2008 IP
    uzair21 and Jim4767 like this.
  3. Dave Zan

    Dave Zan Well-Known Member

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    #3
    Heh, you're really lucky you got a C&D. Microsoft had been suing rather than
    sending the C&D first the past two years, so your getting the latter indicates
    they might've changed their approach.

    The problem here is it's arguable that users might confuse your site with that
    of Microsoft, which obviously they didn't permit or allow. It boils down to what
    is called "likelihood of confusion", which especially happens when one uses a
    domain name bearing a unique and (also arguable) famous trademark like Zune
    itself.

    Also, your site's ad redirects to your Zune Video player. Has Microsoft allowed
    that as well?

    Long story short, your site "seems" to exploit Microsoft's Zune trademark. And
    that's what they're complaining about.

    Bare minimum, you can give the domain name to them. You don't have to sign
    anything saying someone else wrote for you, though that won't stop them at
    all from taking further action against you if they choose to do so.

    It's up to Microsoft whether they'll go after those other sites or not. It just so
    happens you're it.
     
    Dave Zan, Nov 7, 2008 IP
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  4. TheSmegHead

    TheSmegHead Peon

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    #4
    thanks very much for these replies. I am now going through all of my domain names and re-thinking which ones are worth keeping and developing due to this event.
     
    TheSmegHead, Nov 8, 2008 IP
  5. affordableweb

    affordableweb Peon

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    #5
    Sounds very odd to me. I have a Zune site and the Official Zune blog even links to it. There are 100's of sites using Zune domains and theyhave never said anything about those. These are high profile sites like Zunescene.com and others that have been out there a long time. I looked at the Google cache (site is currently down) and noticed that there was no disclaimer on your site. I would start with that. I would fight before I just gave it up. Ask why you were singled out and what you can do to remedy the situation.
     
    affordableweb, Nov 8, 2008 IP
  6. affordableweb

    affordableweb Peon

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    #6
    So I now see why they are taking your domain.

    These are all official Zune sites. Yours domain fits into what they are doing. They plan to develop your domain.


    zune.net
    zunestore.net
    zunemusic.net
     
    affordableweb, Nov 21, 2008 IP
  7. Dondon2d

    Dondon2d Peon

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    #7
    ^ He's right. Give up the domain name. Ask for payment if possible.
     
    Dondon2d, Nov 21, 2008 IP
  8. sub7

    sub7 Active Member

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    #8
    It wouldn't be an issue if the word "zune" was in a different context, but the domain has "zune" in it and refers to the M$ product. I hate that they have this power over somebody elses domain, but it exists, and you must work with it.

    I suggest you change the site to another domain and summon up a ransom for the main domain.
     
    sub7, Nov 21, 2008 IP
  9. Dave Zan

    Dave Zan Well-Known Member

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    #9
    Heh, and give Microsoft grounds to sue the OP for what he got the C&D for.
     
    Dave Zan, Nov 21, 2008 IP
  10. Xexi

    Xexi Peon

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    #10
    The question that comes to my mind is, "Can you contact google to remove your site from their page ranking?"

    ;)


    Other than that, overwrite your files and all backups before transferring anything over to them.

    Why would you want to help them? Think about it, they have tons of money and didnt even offer to purchase the site for a reasonable price.
     
    Xexi, Nov 25, 2008 IP
  11. mjewel

    mjewel Prominent Member

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    #11
    Microsoft could sue for damages, legal fees, and all revenue the site ever generated and you think they aren't being reasonable? Try infringing on a Mattel trademark and see what they do.

    Microsoft doesn't want the files, just the domain transferred to them - and besides, using the files would be copyright infringement.
     
    mjewel, Nov 25, 2008 IP
  12. Repentless

    Repentless Peon

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    #12
    The only reason they could force you to give up your domain is because of identity confusion, right? So if you put a nice "This site is not affiliated with Microsoft in any way" or something like that at the top they wouldn't be able to do anything?
     
    Repentless, Nov 25, 2008 IP
  13. mjewel

    mjewel Prominent Member

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    #13
    Wrong. A disclaimer isn't going to help. The "confusion" exists with the domain name alone. You are benefiting from the goodwill they created by getting traffic to the site. By the time they may read a disclaimer, the "benefit" of traffic has already happened.

    The content has already created an infringement case. It's like stealing something and if you get caught, you don't get to say "ok, I'll give it back or stop and then you can't do anything to me." Microsoft could already sue him for what has already happened.
     
    mjewel, Nov 25, 2008 IP
  14. tominstl

    tominstl Peon

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    #14
    It is sitting on a parked "new customer" page. Apparently you sold the domain. What happened and who did you sell to? Plus there is no sign of your site on the first pages of google.
     
    tominstl, Nov 26, 2008 IP
  15. affordableweb

    affordableweb Peon

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    #15
    I don't think you could ask for much more than your reg fees without major hassle. MS is actually pretty cool about people using their domains unless of course they have plans for it. Sad for you MS chose to develop the .net versions of their domains probably due to the idiot that refused to sell them Zune.com (BIGGEST MISTAKE OF THAT GUYS LIFE)

    There is no disclaimer your can post or pretty much anything you can do related to the MS Zune with that domain. if you want to keep it you have to use it in a non competitive fashion. That means nothing to do with Zune, video, music or anything close to those. Build a porn site on it and ask them to pay you for that and you may get some leverage but they have existing evidence of your prior use and could use that to sue through the WIPO

    Whats the final outcome? did he give it up?
     
    affordableweb, Nov 26, 2008 IP
  16. Zepia

    Zepia Peon

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    #16
    Just tell them that you are going to develop the site and it's not related to zune, that when you registered the name you were thinking of Zun-eVideo.net! or ZU neVideo.net which means "Zoom Upload Any(ne) Video.net

    Make sure to have a logo to back it up or something.
     
    Zepia, Nov 26, 2008 IP
  17. mjewel

    mjewel Prominent Member

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    #17
    That doesn't work. The name alone is enough to create consumer confusion. I don't care if you use it to sell cookies and never talk about a microsoft product, you can still be sued for infringement. If the domain was less descriptive (i.e. zunejoes) you might have been able to argue that position if it was never used for anything music related. Then again, do you really want to spend $50K or more in legal fees to try and prove it isn't infringement? Even if you win, you don't get the $50K back. If you lose, you are not only out the $50K in your own legal fees, but you can be ordered to pay treble microsofts attorney fees, plus damages. That is one of the benefits of have a registered trademark.
     
    mjewel, Nov 26, 2008 IP
  18. hostlonestar

    hostlonestar Peon

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    #18
    This is one of those things that you should have gone to a copyright lawyer about right away, you may loose a grand or so from it, but you may have been able to keep it.../shrug. However, since its been about 20 days, I'm curious about the outcome.
     
    hostlonestar, Nov 27, 2008 IP
  19. locals

    locals Well-Known Member

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    #19
    just posted to subscribe to thread and see what happens . . .
     
    locals, Nov 27, 2008 IP
  20. mjewel

    mjewel Prominent Member

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    #20

    $1K wouldn't be a fraction of what was needed to put up a defense for a domain.

    Microsoft just filed another cybersquatting lawsuit asking for $100,000 per domain. One of the of the sites was zunedrivers.com.

    November 26, 2008, 07:53 PM — IDG News Service —

    Microsoft has charged a Florida company with cybersquatting in a new lawsuit filed Wednesday.

    http://www.itworld.com/legal/58466/microsoft-files-new-cybersquatting-charges
     
    mjewel, Nov 27, 2008 IP