Canadian mortgage broker license

If your business does not yet have a site on the world wide web, it may be time to at least reserve a domain name. As one broker discovered, if you wait too long, a competitor could simply snatch it away.

Broker David Brimlow worked many nights and weekends over several months to design and develop his own general real estate web site, which he expected to call brimlow.com, along with a proprietary office leasing service he called Predator '99.

Since December, in fact, he ran ads to alert both the industry and potential clients that his web sites were coming. But at the end of March, when he finally finished designing and asked his web service to upload the web sites, they informed him the Internet domain names had already been taken.

But to his chagrin, not only had the names and several variations been registered, they had been registered by another New York office leasing broker, Jeffrey Landers.

Stunned, Brimlow called Landers, and was allegedly told I'm not giving you your name back.'"

Landers told REW he has registered more than 500 sites, including his main site, offices2share.com, and the more generic longislandrealestate.com and findofficespace.com - some of which he may or may not use in the future.

As for the sites "brimlowrealty," "brimlow," "brimlowrealtycorp," "Predator99," "Predator 1999," "Predator2000" and others that were similarly worded, which he has also registered, Landers said he does not intend to necessarily use the names, but is simply trying to make it more difficult for a competitor to benefit from the otherwise easily accessible and lucrative Internet marketplace.

"I'm creating a barrier for entry," Landers explained, determined to fend off competition. In an analogy also used by his attorney Debra Kelly, Landers described a prime retail site that would be perfect for use as a real estate office.

"If I get there first and rent it, Brimlow can't rent it," Landers said of both the Internet and real office sites.

Kelly, a partner with Povich Kelly/Associates, which provides legal and business solutions for technology, media and digital communications companies, said Internet domain names such as those that end in .com, .net and .org, are

registered on a "first-come, first-served" basis.

What Landers is not doing, however, is trying to sell back the domain names. "If you want to register domain names and hold them for ransom, you are taking a [legal] risk," said Kelly. "We're not taking that risk. We are not holding [them] for ransom."

She likened Landers to a ticket buyer who doesn't try to scalp or sell them, but simply holds them and doesn't use them.

"Jeff has paid to take a domain name off the market. It's a defensive measure and the court does not recognize that as improper," she said, adding she believes any case brought on that point "would be thrown out because there is no legal issue."

Situations that involve ownership of domain names are not unusual in the business world, and there is already a body of case law developing around so-called Internet domain name hijackers and pirates.

Kelly says there is a tremendous amount of debate that has been ongoing since about 1995, when graphics were first introduced to the Internet and domain names became an asset that people recognized had value.

"This debate rages between trademark owners and organizations that represent trademark owners, and non-trademark owners and registrants of names that include words that are included in trademarks owned by others," she said.

Last week, a group of real estate service companies purchased the domain RealEstate.com from a Columbia, SC realtor for an undisclosed price. RESICOM Analytic, which is changing its name to Property Analysis, MortgageAuction.com and Equitran.com, will provide maps, demographics, equity analysis and other features. They are also creating business partnerships with real estate service providers, including LoanWorks.com, CyberHomes.com and Homes.com, to provide listings and take advantage of the valuable first shot at real estate buyers.

So-called "cyber squatters" and "cyber pirates" typically hold domain names for ransom with the expectation that they will receive some benefit in exchange for the trade or sale of name, Kelly explained.

But while a cyber squatter says "I will give it to you, but I will charge you a premium over what I paid," Kelly explained, "The pirate takes it, and knows there is a trademark owner out there who will eventually discover they don't have easy access to that domain name."

The pirate's game, however, is "just to infuriate the trademark owner."

Kelly said the law recognizes "through a narrow group of cases" that the domain name registrant will have to give the name to the trademark owner.

Several of these cases involve an individual that the courts dubbed a "domain name hijacker," who registered domain names incorporating the trademarks and trade names of many companies in an apparent effort to profit from re-selling the registrations.

Peter Brown, a partner with Brown Rayman Millstein Felder & Steiner, a firm that represents real estate clients and has an active intellectual property practice, litigated at least two of the cases, American Standard, Inc. v. Toeppen, and Panavision v. Toeppen, and also helped Equitable get equitable.com.

"The prerequisite for winning one of these is to obtain a registered trademark," said Brown.

"In general, trademark protection will help," agreed Kelly, "but courts are only forcing domain name registrants to transfer domain names to trademark owners in cases where they are cyber pirates and cyber squatters."

In his corner, Brimlow does have a trademark pending for Predator '99, and is looking into his legal options.

There is also at least one case, Juno Online Services v. Juno Lighting Inc., pitting a trademark owner in one kind of business against a trademark owner in another kind of business, both fighting over juno.com.

The Juno Lighting Co. had an older trademark, and recognizing juno.com's value to the online service, allegedly attempted to "reverse hijack" the juno.com domain by claiming an earlier mark and asking that the online service's domain name be cancelled and awarded to them.

They were eventually paid off and went away, but not before another court ruled the use of a domain name does not, in and of itself, satisfy the Lanham Act's requirement that a trademark be used in interstate commerce.

That would mean having a web site and even advertising in a local community paper alone may not be enough to obtain a trademark.

Brimlow advertises in several real estate publications, including Real Estate Weekly, which is sent by subscription to many states, and in national editions of at least one New York daily.

He has learned a lesson too late, but wanted to make sure others don't make the same mistake. "Don't advertise your web name before you own it," he advised.

Brown said even if you don't own the trademark, but you have a "weil-established" business name, "you still may win, but it's a more complicated issue."

The arguments would then entail "the likelihood of confusion," and if there was "a confusion of source."

Landers, however, says he does not intend to have a web surfer that clicks to brimlow .com, for instance, to be diverted to one of Lander's own active web sites.

Actually, those clicking to the brimlow.com site will find a web page with wording that says the site is coming, but is in effect really an ad for the Internet company that reserved the domain name for Landers.

"I'm not using the name. All I've done is taken it off the table," said Landers, who is very conscious of the legal issues. "I'm not attempting to operate under his [Brimlow's] name or confuse the public."

In a matter that alleges confusion by Internet users, Credit.com, a partner with Mortgage.com, is requesting an injunction, lost profits and damages of $1 million against CreditComm Holdings, a unit of Loeb Holdings, which uses the domain site creditcomm.com. They both offer credit-related services. That suit was filed in a California Federal District Court.

Another issue that Kelly said could enlist "hours of conversation" has to do with whether or not a domain name is property.

The domain name has been thought of simply as a two-year license granted by Network Solutions, which operates the top domain name registry in the United States. But in a proceeding begun after Umbro vs. 3263851 Canada Inc., a Federal Court recently ruled domain names are property, and allowed the plaintiff to obtain rights to 27 domain names owned by the defendant. Here, the Canadian company had registered Umbro.com, but didn't appear to contest the claim by the trademark holder. This triggered a default judgement, and while the judge granted the domain name and $25,000 in damages, there were no U.S. assets to attach.