Published November 2018
Does this subject relate to an experience you have had? Perhaps you have found yourself saying something along these lines:
“I am an artist and there is this company that has a website with my name in their domain.”
“I have a guest house, and someone has brought a domain and has a website with a similar company name.”
Have you perhaps said something along these lines as well?
“How do I stop them from using this domain and website and get it back from them?”
“I find this extremely upsetting. What they are doing is illegal and unethical; I will get my lawyer to contact them.”
There are many variations of these sorts of comments, but I hope the above examples have given a good idea on the theme of this article.
Most people in this situation are probably someone who believes that a domain or website with either their name or business name is valuable but were slower than someone else to invest in this domain, purchase or develop it.
While I am extremely tempted, I will rather not spend time sharing my opinions around the obvious folly on their behalf here. I will rather move onto my main point, which is to clarify that neither you nor your business is conceived with the inherent right to any domain that shares your name.
A domain purchase works on a first-come, first-serve basis, and there are no laws specific to preventing the purchase of a web domain. It is literally a free market product.
Think about it for a moment, can you imagine how many people and companies have the same name around the world? There are billions of people and hundreds of thousands of companies who share the same or similar names. Who do you think has the first right of use?
The fact is this, any person can purchase any domain if it is available to purchase from the domain register and they meet the purchase criteria, which is, in most cases, an annual payment. Technically, there is no law broken under the circumstances of purchasing a domain with the same or similar name as you or your business. It would be wrong then to accuse someone of illegal action in this regard.
Perhaps you would then shift your comments to the subject of ethics or morals? Of course, ethics and morals are a matter of each person’s individual perspective. Fortunately, in business those lines are a bit more defined. My personal opinion on ethical and moral business practices can be defined as follows:
‘Actions taken with no intent to harm another, while achieving your business objectives through opportunities available to you’.
Most reasonable business people would agree with my definition here and, by my definition, and in context to purchasing an available domain for the use of business, is a very good business decision when you accept that a domain with key search phrases is a vital component of SEO.
SEO is a tool used for web marketing. There are very few people who know more about web marketing in South Africa than I do. SEO, in many ways, is like disruptive technology. The person who takes initiative first often gets the reward.
Do you think Uber drivers asked taxi drivers if they may use the app before they started driving clients around? No. There was nothing stopping a taxi driver from moving over to Uber… They were either just slow on the uptake or didn’t bother. We all know how some taxi drivers like to shout and scream at Uber drivers, accusing them of taking their clients, when the taxi driver has no inherent right to the customer. There are hundreds of such articles on this subject, here is just one: https://www.iol.co.za/news/south-africa/gauteng/watch-uber-drivers-under-attack-in-sandton-11130930
Purchase and usage are two separate things.
There are laws and policies for the use of a domain and the content of a published website. These rules can vary based on the country, the domain extension, the actual content published on the website and even the entity relationship connected to the website or domain.
There are also a variety of different laws for published content, the use of name and use of images. Those laws have to be applied and the process must be followed to see if it is applicable to the domain or website in question and under which laws. For example, if a domain or website is using a similar name to your registered trademark, there are processes to follow to try to acquire the domain or stop the use of the domain.
Using a lawyer is really your legal right. Just bear in mind, like the CCMA and the Housing Tribunal, there are free services offered by governing organisations to negotiate the release of a domain if you have a valid claim.
Another option is to first make contact and make a simple request from the current owner. The chances are if the current owner of the domain is a reasonable person, has no ill intent and you explain that you have a greater invested interest or purpose in the use of the domain, they will probably release the domain for you. The owner might ask you to purchase the domain from them, or perhaps even cover other costs spent on the domain or website so far. This is reasonable if they invested money into the domain and website.
If the owner is only retaining a domain to exploit a sale, there are other avenues to follow. You can direct the situation to the domain authorities to negotiate the handover without payment. Some examples of such organisations are the https://ispa.org.za, ZADNA or ZACR.
You must, however, accept that in most cases the authorities will do an investigation to confirm that you have a rightful claim of use or valid trade claim on the domain or website. There is also a chance that the current owner might also have a valid claim on the domain and an invested interest. They might also be in a better position to use the domain for a web marketing purpose. Under these circumstance, consider working with them to service the end client needs is a joint venture or partnership of sorts.
In conclusion, the purchase of domains for the purpose of business intent is opportunistic and shows business foresight. Go and invest.
Please feel free to send any questions or comments. My other articles are at: https://www.jeanpierremurraykline.co.za/media_jeanpierremurraykline.html
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Published November 2018Read more articles