Twitter.com Files UDRP For Twiter.com

According to a post by Fusible last night, Twitter.com just filed a UDRP on the domain name Twiter.com yesterday (D2011-0986)

Twiter.com was registered on May 7th 2004.

According to current whois Twitter.com was registered on May 24, 2009.

However, Domaintools.com shows the domain being registered back in 2000.

Twitter.com appears to have gotten the domain name in June 2007.

Twitter also filed for a trademark in April 2007.

So Twiter.com was registered three years before Twitter, Inc. got Twitter.com

Twiter.com was not going to a parked page serving up results for social networking results but instead to a CPA program where the visitor gets a take to take a survey in exchange for a “free gift”.

In the last 12 months Twiter.com has gone from a high of 125,000 visitors a month down to around 4,000 visitors a month over the last few months according to Compete, actually I would have thought the typo got more.

Now back to the case.

If I was the owner of the domain 1st I would arguge that my registration date pre-dated Twitter and their trademark.

The 2nd argument I would make would be latches.

This is  that legal theory that a couple of UDRP panels have adopted that is a trademark holder can lose its right to object to a usage, if they wait to long.

Its now 2011.

That’s 5 years after Twitter, Inc. got the domain name and the trademark.

Moreover although we have seen a ton of cases on parked domains and fair use. I’m not sure I have ever read a decision were the domain in question was going to a such a CPA program and will be interesting to see how a panel views that.

Hopefully the domain name holder will defend rather than just default and ask for a three member panel.

 

Comments

  1. says

    twiter.com should get a top TM lawyer and counterclaim that twitter.com is violating on their TM

    hey rick swartz, you see that sites traffic, 4K from typein errors

    people use SE’s and hyperlinks and bookmarks to navigate

    once a site has users, most never type it in

    plus twitter shows the power of mobile

    all that schwartz bs about type ins

    this exemplifies how one of the busiest sites in the world gets minor type ins

    you see how his site property.com dropped of page 1 of google as soon as he gave it to the ‘science’ of schilling

    LOL

    schilling’s ‘science’ kills every name he touches

    top of google for a term is way more traffic than the type ins of that term

    so this is a good example of how even the busiest sites in the world get very minor type in traffic

    hey schwartz you see the new google SE on a mobi device

    you speak for what you want

    so where does that put type ins and typos

    LOL

    the whole industry has evolved and the dinosaurs are going extinct

  2. says

    It leads to a scam site. These CPA ads are just scams. They just steal your information and don’t give out any free gifts. They would be broke if they were to give out free gifts to everyone.

  3. Don says

    They registered long before them. It all depends on what they have been putting on the page for the last 3 years. Even if they put a social site or anything related to social or trademark for 1 day then they are screwed.

    They must of had something put on that page during the last month to file a udrp. Otherwise I doubt twiter can win. Also they have waited way to long”latches” like Mike said. Never heard of that term until 6 months ago.

    Don

    Don

  4. says

    It’s “laches”… French word, though we Engrish speakerz say it like he spelled it, heh. Anyway, laches still hasn’t been accepted as an actual defense, even if it has been discussed by some panels (even favorably). The interesting thing about this case will be the argument that they were using it for scam purposes, so they had a bad faith intent when they registered it, even though they may not have been targeting Twitter specifically since it didn’t yet exist. So those prongs aren’t really connected at the beginning. Kinda cool. Would like to see the pleadings, to see the arguments raised.

  5. amusia says

    twitter =should= lose this.

    and maybe bringing a udrp against a silly typo shows where they’re headed.

    if twitter was focusing on building their business, this should not even be on their radar. if they were diligent about protecting the TWITTER mark, they would have filed this years ago.

    but then the panelists or their friends, families or colleagues may be twitter users, in which case it will most certainly affect their decision, in my opinion.

    wasn’t the ustream case similar to this? no trademark when domain was registered, but they still won. my theory is that if it’s a site the panelists know and like, it affects the result.

  6. says

    A visit to the Wayback Machine indicates that the site located at twiter.com was used as recently as December of 2009 for PPC ads for cell phones and chat rooms, among other things. There were no more recent records, which could point to bad faith use if robot txt was disabled.

    This could also indicate that the site was changed after twiter.com being put on notice by Twitter of its so-called superior trademark rights and if that is the case then reasonable arguments could be made by Twitter that directing users to Twiter.com is bad faith use to have PPC ads for cell phones and chat rooms since it is related use and Twitter users utilize cell phones to obtain mobile applications to use the service. The only remaining question is whether there was a bad faith registration of the domain name since the domain name was registered before Twitter ever existed. As you may know, the majority of UDRP panels still take the view that one must have BOTH bad faith registration AND use. Will be interesting to see if the respondent fights this.

  7. Gazzip says

    “twitter =should= lose this.”

    ———-

    My guess is not “IF” that screenshot posted on Fusible is what they had on in ;) …slam dunk for Twitter regardless of the reg date.

    Missleading, confusingly similar, Bad Faith …take your pick ;)

  8. says

    If I were the owner of twiter.com I would fight. I don’t think that Twitter.com has a valid case. And if they did, why on earth did they wait 5 or6 years to try to gain control. They have bought t.co.

  9. Jp says

    Does twiter.com really want to win this udrp and be the proud recipient of a federal case? That sounds expensive, even if they win the federal case can the cost be justified by the domain’s revenue? Id they loose the federal case I imagine that would be bad. Seems like the fight would be on principle alone and not logic.

    And there is another new jp now?

  10. amusia says

    but…

    if this domain has been sold or transferred since it was reg’d in 2004 (e.g. after public was on notice on a twitter trademark), then twitter should win. and it looks like this domain has been somewhat of a hot potatoe.

    so, say goodbye to twiter.com

    it was a good run, while it lasted. lol.

  11. John Berryhill says

    The current registrant does not appear to have been the registrant since 2004.

    Starting at the first 2006 entry in the Domaintools WHOIS history, the registrant was “JIT Advertising”. In 2007, it changes to “BWI Domain Manager”. Then, it goes through some bogus “whois privacy” data to “Twiter Blog” in 2008. In the course of these changes, the address goes from a PO box in West Bay, Grand Cayman which address has historically been associated with a cybersquatting operation, to an address in Canada.

    So, it does not seem that the Respondent in this UDRP could credibly claim to have had the domain name since 2004, since the WHOIS history is at clear odds with that claim.

    The webpage in question is quite clearly designed to fool visitors into thinking they’ve landed at some kind of survey being conducted by Twitter – using the color scheme and typeface of Twitter’s site.

    “If I was the owner of the domain 1st I would arguge that my registration date pre-dated Twitter and their trademark.”

    And if the owner of the domain argues that, they would be lying.

  12. says

    the landing page is not the site, they move the traffic to another site, so the ‘site’ does nothing really, other than redirect, is a ‘redirect’ considered ‘bad faith’?

    if the whois doesn’t show a break, meaning a drop, then its either the same group or there were ‘sales’ or ‘trades’.

    seems twitter.com had a lapse in their whois, so that means the mark was for a time abandoned, international law has a 7 year window on abandoned TM’s last time I checked

    the site that you end up on is clearly ‘bad faith’ in that they use the color scheme of twitter to fool people, however, it’s not the site, so unless the redirected site is the same group, looks like they can say they don’t use the name, they merely redirect it

    the only interesting thing in all this, is the typo has a longer whois history of continuous registration

    I often thought of doing TM claims on .net and other tld’s I use and the .com owner sits there with either a name that doesn’t resolve or a parking page

    in other words, claim their ‘non use’ gave them no right to the name, and real use on a .net or other G tld, gave a real operator of a name a right to go after the dormant .com

    create a case of use it or lose it, and parking isn’t ‘use’

    seems twitter may be creating a precedent on that type of use

    they’re going after typos that may have more rights to twitter than they have

    LOL

  13. MHB says

    So john while I have your attention, (for free) what is your opinion on a CPA model like this domain was using VS a parking page with links to social networking sites.

    Is one more protective than the other or not?

  14. John Berryhill says

    “So john while I have your attention, (for free) what is your opinion on a CPA model like this domain was using VS a parking page with links to social networking sites.”

    Had the domain name been registered by the current registrant and used for the same thing since 2004, then it wouldn’t make a difference.

    In “priority” cases, UDRP panelists prefer to see consistent long term use.

    In “common word/phrase” cases, UDRP panelists prefer to see the domain name being used in some sensible connection with the meaning of the common word or phrase.

    What we have here is a terminal cancer patient. Asking if he would be better off on regular or menthol cigarettes is beside the point.

  15. amusia says

    @JB “… they would be lying.”

    And as we all know, that just never happens in a UDRP proceeding.

    So if the respondent, on the issue of “legitimate use”, says, “[For the preceding 6 years] We have been putting together plans to develop this website [into something more easily understood, but not necessarily more effective, than a landing page]“, you can bet your mousepad that he’s being truthful.

    @owen – Why would they lose for that reason? Is Twitter disliked? Did you mean win? My theory is that panelists probably do use the web and have their own biases for or against certain sites, as any web user would. For example, some view parking as legitimate use and have stated this in their decisions. Others seem a bit more skeptical. Ask yourself, how might they form these opinions? By reading about it? I have no evidence to support this. I could be wrong. It’s just a theory.

    Then again, would anyone disagree that being well-known and having a good reputation are beneficial in trademark litigation? Why would UDRP be any different? Having a reputation as a trademark-infringing domainer can’t be good either.

  16. amusia says

    Actually I meant the issue of “bad faith” registration. Intent to park and siphon off errant traffic vs. intent to develop into a site that is wholly different from Twitter.com.

  17. John Berryhill says

    “the brand is so engrained that it would be impossible to get a fair trial”

    Isn’t that the point, though?

    I mean, in a trademark dispute, being well known is what constitutes the value of the mark.

  18. readit says

    market research has shown paid links do not build brand awareness in the way that cpm (ads with img src) does.

    does that suggest anything about the potential harm to a trademark of paid links vs cpm?

    @domain lords: when was the last time you read the udrp? check your assumptions about redirects. it’s possible they might be incorrect.

    i’m sure the people who proposed redirection in http and dns were at the time trying to help (or maybe they were trying to solve problems they just were not bright enough to conquer?). imo they’ve brought us much more harm than good. these mechanisms introduce so much unnecessary complexity and have been abused in so many deceptive and stupid ways it easily overshadows whatever usefulness they’re purported to offer. adding more levels of indirection just makes the web an even worse hack than it already is. and at this moment some developer is planning a “clever” new use of indirection. guaranteed.

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