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84 Comments
- Popdmb, on 10/12/2007, -17/+58I hate digg sometimes.
You'd think that after months of Digg founders explaining why it's so important to copyright your material and preserve the trademark, DIGG USERS would be able to apply that knowledge to a similar situation.
What is to stop these guys from advertising on google? What's to stop 'em from adding a goatse to their site instead of a redirect? What if I'm a friend of Ted Stevens and blame Dell when I cant access their website through de4ll.com and blame it on clogged tubes and broken internets?
No, Dell doesn't need the money, but it's the only way these leeches will learn. I bet half of them come on Digg, rip Dell, and promote apple. (Not that there's anything wrong with that ;-)
Please...think before your itchy finger hits that submit button. - EASwanson, on 10/12/2007, -1/+24I pulled bullet 1 from Dell's contract when you sign up with them via linkshare (middle man between affiliates and companys). These are some of the things you can do to be dropped/sued by Dell. Also by violating any of the following they have the right to retract a month's commision.
1. PARTICIPATION IN THE PROGRAM
If you are a member of The LinkShare Network, you only need to read and agree to this Agreement. If you are not a member of The LinkShare Network, you must complete a registration form to join The LinkShare Network and then read and agree to this Agreement. We will evaluate your registration form and notify you if your Site is not accepted for participation in the Program. We may reject your application after initial approval if we determine (in our sole discretion) that your Site is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that:
* Promote (including, without limitation, links to) sexually explicit materials
* Promote violence
* Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
* Promote illegal activities or otherwise violate any applicable laws, including those targeting "spyware," "adware," or SPAM
* Manipulate key word searches on portals
* Misrepresent themselves as a Dell Website by co-opting the visual look and feel of or text from Dell's Site
* Include Dell or variations or misspellings thereof in their domain names
* Otherwise violate intellectual property rights, including, without limitation, scraping text or images from Dell's Websites
* Have traffic of less than 500 unique visitors per day
* Do not clearly state an online privacy policy to its visitors
* Otherwise are considered offensive or inappropriate at Dell's discretion - Ahnteis, on 10/12/2007, -2/+25HOW has Dell profited? Instead of getting a straight sale they have to pay commission.
If the customer had got an error message, they would have noticed the typo and simply corrected it. Instead, they are unwittingly giving business to a typo-squatter. - FreakTrap, on 10/12/2007, -0/+20Has Digg been invaded by cavemen?
- hackwrench, on 10/12/2007, -0/+14There are domain squatters. Dell didn't make any money off of them having the domains. People were already looking for Dell. If the domain squatters hadn't taken the mistyped domains the people buying the computers would have likely typed in the correct domain.
- Gryph1, on 10/12/2007, -0/+12Nothing in the original Inquirer article mentioned suing for the commissions back, just for the domain names and damages(don't believe there are any really and will be hard to prove, I'd imagine.)
Either way Dell was paying extra money to people for an advertisement that doesn't benefit Dell at all really, they were already heading to dell.com if they typo'd and no domain was there they'd spell Dell correctly and buy.
I'm not a big fan of Dell, but I'm even less a fan of domain squatters.
They'll probably end up settling for just turning over the domains in the end anyway I'd imagine. Though they could probably legally snatch them away through ICANN. - dkarlson, on 10/12/2007, -1/+12Dell probably has lawyers working for them. I would imagine that if they don't sue these folks, they're suing someone else. Lawyer cost probably isn't an issue.
- strictnein, on 10/12/2007, -18/+28@Popdmb:
You're missing the point. It's one thing for them to sue to get the domain names. It's quite another for them to sue for the commissions they paid out plus damages.
How have they been damaged and why would they deserve the commissions back? This isn't a trademark issue at all. - Tourney3p0, on 10/12/2007, -0/+9Customers were obviously trying to go to dell.com anyway. The "affiliate" didn't bring anything at all to the table. If they didn't exist, people would type "dxell.com" or whatever, get a "Page cannot be found", realize their mistake, and type in the correct address. There would absolutely not be any lost revenue if this domain did not exist.
These affiliates exist as leeches and nothing else. The fact that people in this thread are siding with those opportunistic slimeballs really says something about our state of affairs. - evossman, on 10/12/2007, -5/+13I would just sell it to them for $100 lower than the lawyers fees its going to cost dell. Just a thought.
- tcybulski, on 10/12/2007, -0/+6It actually sounds like Dell wasn't directly involved in paying the squatters. Dell has a business deal with Linkshare. Linkshare allows other websites to be affiliates. So in reality, the websites were using the Dell trademark (by typo squatting) to make profit for themselves by linking to Dell. It wasn't like Dell licensed the trademark or anything. So now Dell wants the domains (which are, indeed their trademark) and the profits made from their trademark. Remember, Dell makes less money if they're paying referrals to an affiliate. If the affiliate is using the Dell trademark to siphon money off of Dell's sales, then Dell has every right to sue them.
The description is rather misleading, but hey, it's digg. Dell's pretty much completely in the right here. - inactive, on 10/12/2007, -0/+5Q: What the judge will say after being shown the contract that is the basis of the affiliate program?
A: As the respondent knowingly used misspellings of the plaintiff's website in violation of the agreement, I find in favor of the plaintiff. - meltingrobot, on 10/12/2007, -2/+7Umm, am I the only one that notices all the bad English in the comments? I think this is spam. I'm flagging as such.
- superKduper, on 10/12/2007, -1/+6DIGG LOGIC:
1. Apple defending its trademarks == GOOD (except the diggers would spell it as "it's" because they're *****)
2. Anyone else defending its trademarks == BAD - TedTschopp, on 10/12/2007, -0/+4Why sue for their profits and damages?
Because that is the way it's done in the industry. The idea is that someone used semi-legal means to make money, that money is tainted by the semi-legal means, and forfit. The court will determine if the semi-legal means is legal of not. If it is found by the court that illegal means were used to make the money, the money is forfit.
I know all this from personal experience... - inactive, on 10/12/2007, -0/+4@morganm:
The typo squatters violated the affiliate program terms. They knew they were not allowed to do this and did it anyway. They lose. - ChoadNamath, on 10/12/2007, -0/+3"Has Digg been invaded by cavemen?"
Yes, but that happened years ago. - dezmd, on 10/12/2007, -0/+3I noticed that immediately. I'm trying to skim thru and digg users with at least passable english. The logic behind the justification of dell squatting loosely reminds me of a documentary I watched last night on Sundance about Chinese workers in extremely substandard conditions making the Mardi Gras beads for New Orleans. The 'boss' of the factory had all sorts of screwy logic that did not seem to make sense to my Americanized sense of business logic, right on par with the nuttiness justifying domain squatting spammers with affiliate programs attached. These guys are getting what the deserve and I hope Dell kicks them squarely where it hurts to teach them a lesson.
I must be getting old, I'm actually siding with the big evil corporation today.
Cheers. - RationalBeaver, on 10/12/2007, -0/+2@morganm
So let's say you're right. The affiliate pages are a better experience than a 404 and they bring more sales for Dell (though that's questionable, since it seems likely that most people would just correct their spelling and go to Dell.com). Shouldn't Dell then follow this opportunistic path themselves? The domainers got their little rewards for finding the mispellings with traffic, and now Dell should use their trademark control to take those domains for themselves. That way they have better control of their brand, kill the potential for competitive offers on those domains, and improve the user experience by speeding up the redirect (since it wouldn't go through a third-party affiliate tracking server). - BigCalhoun, on 10/12/2007, -0/+2I for one think it's a very interesting case.
On the face of it, it does look like the domain holders were in the wrong. By the LinkShare policy posted above, they clearly violated by at least having the misspelled domain names. Open and shut in that aspect, IMO. What interests me more though is the whole trademark infringement claim and the issue of 'cyber-squatting'.
As I understand it (and I'm not a lawyer), trademark infringement occurs when the fictitious trademark genuinely creates a sense of confusion between the legitimate product and the unauthorized one. So someone with a 'golden arch' who happens to sale hamburgers and offers bundled meals (value meals) might get gigged. But someone who uses the same desgin, but their business is, say, a nuclear waste disposal facility may not be gigged because one would assume you can't confuse a fast-food restuarant with a industrial waste site...although I'd argue they are one in the same. So to that end, unless the domains had some sort of content that implied or 'represented' Dell, I don't see where trademark infringement comes into play. Again, based on my limited understanding of these types of cases.
But the cyber-squatting deal, it just seems to be getting out of hand. I have 3 domains registered in my family surname; .net, .org, and .info. I want the domains so that I (my wife and I are expecting) can setup a website for my immediate family and b/c extended family has talked about putting our family history online and setting up a forum so we can all stay in touch. Whose to say that 5 years from now that some company named [Smith] Co. won't try to sue me for my domain names for which I legitamately paid for and have legitimate intentions on using? I just think it's all subjective. We cross into some dangerous territory when we start enforcing laws based on what we think someone will do. - strictnein, on 10/12/2007, -2/+4So, why sue for their profits and damages? Why not just for the domains?
- WileEPeyote, on 10/12/2007, -0/+2Wish I could slap some people upside the head through the internet. I won't bother going into why you are a douchebag, just wanted to wish you a happy life in one of the worlds many correctional facilities.
- inactive, on 10/12/2007, -1/+3Does your affiliate contract say they aren't supposed to typo squat like Dell's contract does?
- redcard, on 10/12/2007, -0/+2I disagree.
Okay. Say your last name is , well, Calhoun.
There is a difference between having "Calhoun.Com", the website of the Calhoun Family... and "Calhoun.Com", a redirection/lookalike with affiliate binding (to get the commissions) to "CalHuon Computers." See, that's the difference. These people were buying these domain names to skim the top off the profits of Dell.Com. They did it in violation of the contract they agreed to. If they were indeed "dell1 Consulting" or something, they wouldn't be getting sued. (Unless of course, they made their site look like Dell's, and passed themselves off as being part of Dell.
I don't think you have much to worry about with your family website, unless you tried to somehow market yourself as connected to or a part of another company for your own personal gain.
Now, I went to pull the archive / cache of these sites, and amazingly, their robots.txt disallow all. So, I can't see it. According to some news stories of this case, though, the site did a redirect , and stated (as it was doing the redirect), that the people were at Dell.Com - dezmd, on 10/12/2007, -0/+2For a user named TechLaw you seem to have little grasp of whats going on in this situation. Read up more, the affiliate program itself does not permit misspellings, and it is NOT a good faith effort to use a misspelling in your advertising material to front an affiliate program. Anti-Ponzi / racketeering could fall into the proceedings as well if the squatters own multiple domains or have business interconnections with each other.
@DaveV: Exactly.
Cheers. - EASwanson, on 10/12/2007, -0/+2Cost shouldn't be an issue due to bullet 12.11 in the contract... People should really read these things when they jump into an agreement with a large company.
12.11
Attorneys' Fees. In the event any action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts such party is be entitled to receive from the other party, will be entitled to receive its reasonable attorneys' fees and costs incurred in bringing such action. - andyduncan, on 10/12/2007, -0/+2Even though linkshare sits in between Dell and their affiliates, those affiliates still have to agree to the terms of Dell's Affiliate Program, which forbids typo-squatting.
- inactive, on 10/12/2007, -1/+3they're squatters what more needs to be said. They're using misspellings of Dell's domain in an attempt to profit from the commissions. They make no real attempt to appear legitimate.
- benfly, on 10/12/2007, -0/+2Yeah, I'd say this article is another example of "diggnorance."
- RationalBeaver, on 10/12/2007, -2/+3That kind of affiliate (the typo-squatting-bottom-feeder) provides no value to anyone. Not to Dell, and not to the web as a whole. Personally, I hope their Dell laptops break and they get put on hold for 9 hours while they wait for some moron who will ask them if they've rebooted.
- peritonlogon, on 10/12/2007, -0/+1@ RationalBeaver
Are you a communist? ;-) I empathize with the point, but, when have people actually had to contribute in order to benefit in this country? - redcard, on 10/12/2007, -0/+1Except it was. It stated that it was a part of Dell.com. No one would have known it wasn't unless they pulled the WHOIS on it.
- johnstar, on 10/12/2007, -0/+1If dell is to stupid to do a typo redirect then the other party deserves the money. It's not like they had a phony dell website that would be lawsuit worthy!
- LeetPCUser, on 10/12/2007, -5/+6It is smart on Dells part because instead of having to give them a commission now they can own it and pay nothing.
- SirBotchness, on 10/12/2007, -0/+1Thats why i get my news from the dailydomainer!
- djdole, on 10/12/2007, -0/+1@dkarlson,
Employees aren't free either.
Replace "Fees" with "cost of time spent on this lawsuit", and evossman's comment still make a good point even if Dell employs the lawyers directly.
Cost is an issue to companies whatever the situation regardless of rep or employee status, especially if there is a cheaper option available.
That said, I wouldn't be surprised if this suit ended up being settled out of court. - oskite, on 10/12/2007, -0/+1"We're apologize - we had no idea you guys were still around."
- dezmd, on 10/12/2007, -0/+1lawsuit has been a nonsensical buzzword for years. the contractual obligation is between dell and another company, who in turn creates the affiliate links from the domain squatters. the trademark infringement is the common tactic to grab domains from typo squatters and is usually successful.
Cheers. - picciano, on 10/12/2007, -0/+1@morganm
Dugg for "free candy" comment. I love it. - rahuldravidlove, on 10/12/2007, -0/+1Ok... I think Dell's sue is not Correct decision.. First dell get benefit from this Affiliate and now he sue the same Affiliate.. Thats bul***** thing he do.
- ryalslawfirm, on 10/12/2007, -0/+1Why can't people ever be specific when they post these "legal" news stories? What theory/COA is Dell suing on? I understand that not everyone is a lawyer, but "lawsuit" is just becoming a non-sensical buzzword these days.
It looks to me like these affiliates are in violation of their contractual obligations to dell and perhaps other third parties, but trademark infringement seems pretty flimsy. Perhaps a commenter with some real information knows something about the anti-cybersquatting statute.
----------------------------------------
http://www.ryalslawfirm.com - inactive, on 10/12/2007, -0/+1Try reading the contract that the affiliates agree to follow.
- jcounterman, on 10/12/2007, -2/+3to set a precedent and discourage others from doing the same thing (because after court costs, Dell will NOT be winning here.) There really is no way this will help Dell...If they let it go, they risk losing trademark and having more of these "affiliates" pop up and demand money. If they go after them, they have court costs. Which beast is less ugly?
- andyduncan, on 10/12/2007, -0/+1IIRC this type of thing violates Dell's affiliate program terms, so that's why they are suing for commissions paid out. This isn't just a trademark dispute, these people had signed a contract with Dell and, apparently (IANAL), were violating it. Dell has one of the more restrictive affiliate programs, for instance, their terms forbid you from bidding on the term "Dell" on google adwords, so I'm not really surprised they are going after these guys. This type of thing is known as "arbitrage" in the affiliate marketing world, and it provides a minimal service to the user, if any. Dell is smart to forbid it in their terms.
- RationalBeaver, on 10/12/2007, -0/+1@peritonlogon
I'm not saying that people must contribute. But it's surprising how often it turns out, even in business, that you get what you give. This particular situation being a nice case-in-point. - dezmd, on 10/12/2007, -0/+1@techlaw
Relief can be based on damaging the good image (relatively speaking) of the entity. There is certainly precedent for it.
Cheers. - peritonlogon, on 10/12/2007, -2/+3in other news, it seems that the mispellings no longer work.
- silentdud, on 10/12/2007, -1/+2That is pretty stupid to complain about though.
If I made a website called dell1.com and it forwarded to dell.com without asking the customer and that customer was attempting to access dell.com then that domain owner would receive a commission, typically a fairly large one on the grounds that the customer typed in the wrong URL and unknowingly was tricked into being forwarded to the site by an affiliate.
I have absolutely no problem with this lawsuit with or without the contract having been signed. This might not be an outright scam but it is certainly bordering on it. - inactive, on 10/12/2007, -0/+1Not paying affiliate commisions.
- TheUngod, on 10/12/2007, -1/+2if you dont use punctuation nobody will understand what you mean see what i am saying is this hard to read or what
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