| History
The word mark ENQUE is a registered trademark of EnQue Corporation. This has
been the case since 1994 when it was granted by the US Patent and Trademark
office. It was also about this time that the internet was gaining momentum and
was a virtual free-for-all when it came to acquiring domain names. Although
domain name registration agreements require the registering party to agree that
they are not conflicting with a trademark owner many registrations still
occurred where the registering party did not own the trademark. Whether the
registration is innocent or not, policing of the use of a trademark is
incumbent on its owner. (More muscle has been added in favor of trademark
owners with the 1999 cyber space laws giving more protection to trademarks as
they relate to internet use.)
A media company registered the enque.com domain in the fall of 1995 and was
using it for their purposes. This use did not appear to conflict with the
requirements of the registration agreement since the registration was not done
in 'bad faith' and it appeared it was not done to harm or divert business from
EnQue Corporation. Regardless of the intent, because of this situation the
domain was then not available for use by EnQue. The media company was
approached and asked to relinquish the domain name but refused. This included a
round of letters from our attorney.
The media company was acquired by a larger conglomerate out of New York. In due
time their original websites, of which they had several, began pointing to the
new parent company. It appeared the enque.com domain was then being used
as a private access site since it was requiring a login and had no home
page.
Over the years we periodically checked the registration status of the enque.com
domain name. One year the domain record expired. However, the registrar's
policy was to extend a 30 day grace period to the domain name holder. It was
always renewed. In the fall of 2003 this happened again. We were not surprised
and expected it to be renewed. But this time it didn't happen. The 30 day grace
period expired. We don't know why they let it lapse but can only guess that it
was fallout from the merger of the two companies.
Acquisition
There is a service provided by a company called SnapNames which will attempt to
acquire a domain name (back order) on ones behalf as it come up for public
availability. We contacted this company to utilize this service. To our horror
someone else had already back ordered enque.com. Since SnapNames allows only
one back order per domain we were understandably upset. Several letters were
written to SnapNames as well as Network Solutions informing them of this
trademark situation and that they would be held culpable in this matter since
they now had a-prior knowledge of this situation. SnapNames policy does not
provide for handling this type of situation and so was no help. They protect
themselves in their agreement by holding the registrant liable if SnapNames is
identified in a law suite because of something the registrant might have done.
Fortunately, more research revealed a number of registrars or companies
that provide the same domain name back order service.
The overall process from domain name expiration to becoming publically
available includes the first 30 day grace period (at registrars discretion),
another 30 to 45 days called the redemption grace period in which the
original registrant could pay a slight premium and get the name reinstated, and
finally another 5 day registry hold period. It is after this 5 day period that
the domain name is released and all the back order companies trigger their
computer systems to engage in what amounts to electronic warfare in a fight to
acquire back ordered domain names.
We registered with as many back order companies that appeared would have a
fighting chance against SnapNames. It was now anyones horse race. Another twist
to this situation is that there are actually two flavors of these back order
companies. One type will simply register the domain name on your behalf if they
are able to acquire it. The other is a pseudo combination of an acquire and
auction system. In this second type if more than one request is made for the
same domain name through that company then if it is acquired, there is a
further auction amoung those who requested the domain. If only one request is
received then the registrant gets the domain by default. Pool.com is of this
latter type and was the company that won the acquisition of the enque.com
domain.
We contacted Pool to inform them of our trademark but there was nothing they
could do. They informed us that there were 4 people in the auction for the
enque.com domain. We also learned that most of the bidding takes place in the
final half hour of the auction.
The auction began the moment Pool.com acquired the domain name. We were the
early birds on the initial back order so we had the highest bid of $60. The
auction was to last for 72 hours. Any bids in the last 15 minutes would
automatically extend the auction for another 15 minutes making it a venerable
gold mine for the auction company since this type of auction extention can
go on indefinitely.
Pool allows maximum bids that are then used as proxy bids in increments
against anyone else bidding until the proxy maximum was reached or the bidding
stops. The downside is you don't know who you are bidding against.
Furthermore, it is virtually impossible to determine if the auction company is
ethical in that they could have someone inside bidding up against the proxy but
not going over it so as to maximize their return. We had to assume they were
ethical and that there could be legal ramifications if they weren't.
Our strategy was straight forward: prevent any of the other bidders from ever
getting a winning bid and thereby discourage them. This meant we wanted be the
high bidder on every bid. We used the maximum proxy bid in order to implement
this strategy. When needed, we increased the maximum proxy bid in such a way as
to not reveal to the auction company what our actual maximum would eventually
be. And finally, we decided to stop at an absolute maximum of $2500.00 for the
domain name. This amount was chosen because it is the approximate amount
required to file a trademark infringement law suit against whoever would win
the auction if it wasn't EnQue. There is another amount on the order of $1200
which is the cost of domain name arbitration. However, given the previous
knowledge of that process it appeared that the 1999 cyber space law was much
more favorable and carried with it more weight in the trademark holders favor.
We were high bidder at $60 up until the last hour, clearly a false hope for not
having to pay a higher price. We had an initial maximum proxy of $150.
Someone started the bidding and quickly drove it to $120. We upped our proxy
max to $300. Someone pushed it to $275 within the last 15 minutes which then
extended the auction. We upped our proxy max again to $1500. Someone then again
pushed up the bid to $785 in the last 15 minutes. Because the bidding happened
quickly we upped our proxy bid to our predetermined max of $2500. But the
bidding stopped. The time ticked away...until finally we won. A minute later we
received the confirmation email. It had cost us $785 to acquire the EnQue.com
domain name.
The cost of acquiring EnQue.com was less than either $1200 for arbitration or
$2500 for filing a law suit. Did the bidders know limits? We don't
know but at this point it's over and EnQue.com is now owned by EnQue
Corporation. Welcome to the EnQue.com web site.
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