Yesterday’s Aftermarket.com auction started out great. Then it flopped.

I thought yesterday’s Aftermarket.com auction went great. And I still thought that well after the auction was over.

Why? Because I didn’t watch the second half.

I watched the first 25 or so auctions from my office, and then packed up and headed home. The first 25 lots went great. The sell through rate was high and the auctioneer was lively. The online interface was greatly improved from last time.

There were a couple early issues, including the auctioneer accidentally referring to 2o.com as 20.com (a much more valuable domain) and some latency issues between online bids and the auctioneer being able to see them. The auctioneer was very fast, although color commentary on the domains from a staffer was long winded.

But when I logged back onto my computer after the auction ended, it was clear that all was not well. I had an email in my inbox from someone saying “the technology sucked” and a couple comments on the site asking “what happened”.

Adam Strong wrote up the full story of what happened. Essentially there were delays as they tried to fix major latency issues. By the time everything was worked out the auction was scheduled to end, so only the remaining .com.au domains were auctioned and many domains didn’t make it to the auction block.

I’m not sure if the problem was Aftermarket.com’s technology, the distance overseas, or other problems. You might suggest that Aftermarket.com should just punt on its own auction technology and outsource it instead. But then Rick Latona ’s auction, which uses outsourced technology, started late due to technical issues. (It may not have had anything to do with the outsourced service). And once Rick got going, it sailed smoothly.

Tags: Aftermarket.com, rick latona, ricklatona.com, traffic down under

Schilling’s company comes down on wrong end of ChilliBeans.com decision.

Frank Schilling’s Name Administration has lost its first UDRP decision, spoiling a perfect record of success (according to searches at National Arbitration Forum and WIPO).

Schilling, teamed up with attorney John Berryhill as usual, failed to convince a three person WIPO panel that its use of the domain name ChilliBeans.com was generic. The complainant is a company selling sunglasses under the “Chilli Beans” brand, mostly in Brazil.

Based on his record, you can have no doubt that Schilling registered the domain name with the generic term in mind. But at some point in time links related to glasses started popping up on the landing page. Most of the page was about the generic term chilli beans (more commonly spelled “chili”), but apparently there were a limited number of links related to glasses.

The complainant brought up the issue of willful blindess, as described by the panel:

There are circumstances, however, where an unwavering adherence to conventional wisdom may unduly and unnecessarily frustrate the fundamental purposes of the Policy. This is clearly the teaching of Panel decisions holding that that those who register domain names in large numbers for targeted advertising through the use of automated programs and processes cannot be willfully blind to the possibility that the names they are registering will infringe or violate third-party trademark rights.

Essentially, here’s what happened:

1. Schilling registered what he believes to be a generic keyword domain name
2. The domain is parked, and automated programs populate it with ads related to chilli beans as a food
3. Over time, some ads that may be construed as relating to the trademark show up
4. The trademark owner files UDRP and gets the domain name

Incidentally, Chilli Beans uses the domain chillibeans.com.br, so it’s no surprise that many people ended up at chillibeans.com. The complainants used Alexa data to show that 75% of visitors to the domain name were from Brazil. It also showed a Google search that its domain name is first in Google for the term “Chilli Beans”. This must be in Brazil only, because a search I just ran shows it in the #5 spot.

You can also infer from reading the decision that, after Schilling removed all links related to the trademark, the complainants then visited the parked page and did a search for a trademark related term to bring up a page of “infringing” links. You can do this on just about any domain. [John, if you read this please confirm if this is the case.]

This is a case of finding a “gotcha” and could really happen to anyone. Although it’s outside the scope of the policy, it would seem that in a case where someone has such a solid record of avoiding trademarked domains, and something small happens to potentially infringe, that changing the domain’s content to be non-infringing should be a fair resolution.

After all, here’s what this case is really about: Chilli Beans is moving into the U.S. and wants the .com domain name.

[Full decision here. Thanks Ramiro for the tip.]

Tags: Frank Schilling, John Berryhill, name administration, wipo

No, TLDOffers.com won’t sell you top level domains.

I’ve written before about new domain name aftermarkets and asked if there was room for anything to compete against the incumbents. Few people think it’s possible.

Today I saw a press release for a new market called TLDoffers.com. The name threw me for a loop, especially after reading the home page of the web site:

“A top level domain (TLD), sometimes referred to as a top level domain name or TLDN. Basically, your www address as everyone has come to know. Example; TLDoffers.com…TLDoffers is the ideal environment for TLD aquisitions”.

Obviously, the site isn’t selling top level domain names. It’s selling second level domain names. In years past this name wouldn’t be a major problem, but with all the hoopla about new TLDs being released, TLDOffer’s name could be confusing.

I talked to one of its founders Bennie Warshaw on the phone earlier today for an explanation about what makes the site unique.

Warshaw says the site “cuts out the middle man” by not charging brokerage fees and essentially letting buyers and sellers find each other.

Of course sites like Afternic and Sedo effectively cut out the middle man too. But paying no commissions is nice until you realize that you pay listing fees. Warshaw tells me the listing fees are $49 for the first domain (the site says $39) and $11 thereafter. It also doesn’t offer escrow services, which are a big part of what you’re paying for when you pay a commission to Afternic or Sedo.

Here’s another interesting twist — buyers have to pay to submit an offer on a domain listed on the site. Warshaw likens this to Network Solutions’ Certified Offer service. Of course there’s a big difference. On NetSol you’re making an unsolicited offer, whereas on TLDOffers.com you’re making an offer on an already listed domain. (To be fair, there’s some argument to be made that Sedo should charge a small fee to make an offer as it would reduce the number of lowball offers.)

So for $10, you can make an offer on VaporPaper.com (asking price $667,000) and MyPrivateHealth.com (asking price $318,000).

There is one thing that may make the site unique. The owners have partnered with a company that has access to some corporate assets including domain names. The site will allow VIP access to one of these domain names soon.

It could be a category killer. Or it could be a dud.

Tags: Afternic, Network Solutions, sedo

Sitebox rapidly scaling down as it is no longer strategic to company.

Local search and advertising company Marchex (NASDAQ: MCHX) is scaling down its third party domain name parking service Sitebox. Company executives believe the service is no longer strategic to the company.

Sitebox produced revenues of $5 million in the first half of the year, but less than $1.5 million in the third quarter. The company expects revenues to drop further to $0.5 million in the fourth quarter.

During the company’s latest investor conference call, Marchex CEO Russell Horowitz said focusing on premium content partners and its own traffic sources provides greater relevance to its advertisers:

With Sitebox, we viewed that as a potential opportunity to focus on third-party geo domain owners. What we have found is working with premium publishers and our own traffic sources and websites gives us a greater degree of ensuring relevance to advertisers, and so that transition didn’t necessarily happen in the manner that we thought it might. And with that in mind, recognizing we’ve got no shortages of opportunities that we think can drive real equity value creation, we went ahead and made the decision to focus those resources in these other areas. We have greater control for these relationships.

Sitebox is (was) an exclusive domain parking service targeted mostly to owners of large geo domain portfolios.

Tags: Domain Parking, marchex, mchx, sitebox

A recent UDRP decision begs the question, do big companies get the benefit of doubt in UDRP?

Most UDRP arbitration filings are against small time domain owners. So a recent case caught my eye because the respondent was a major media company, Scripps Networks. Scripps networks owns HGTV, Food Network, and DIY network among others.

The case was brought by Automotive Networks Corporation over the domain names WheelsTV.com and MyWheelsTV.com. Scripps won because the panelist found that Automative Networks didn’t have trademarks for the terms prior to Scripps’ registration of the domain names in 1998-1999.

That makes sense, but something caught my eye. The panelist determined that Automotive Networks should lose the case because it didn’t fulfill part one of the UDRP: “the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights”

Correct me if I’m wrong, but wouldn’t most panels find in favor of the complainant for the first requirement if they have a trademark in the terms regardless of when the trademark was obtained? I’ve read many cases similar to this one where the first requirement of the UDRP would be considered fulfilled, but then the complainant would lose the third requirement that “the domain name has been registered and is being used in bad faith” since it pre-dated the trademark.

The panelist decided that the first requirement wasn’t fulfilled and didn’t consider the second and third requirements.

I have a feeling that if the case were against a domainer instead of a big company there would have been a lot more srutiny and perhaps the first requirement would have been met. The domainer would have had to win by proving in the third requirement that he or she registered the domain before there was a trademark.

I also found it interesting to see a big company make allegations against the complainant that it was trying to essentially steal property: “[Complainant] knowingly chose to adopt a mark without what it now claims would be key assets. In short, Complainant is attempting to take by force that which was not available to it when it selected its mark.”

Big companies as complainants seem to miss this point a lot.

If the first requirement had been met, I suspect the panel would have railed against a domainer under requirement three because Scripps offered to sell the domain name to Automotive Networks.

What do you think?

Tags: National Arbitration Forum, udrp