Insurance giant sues domain registrar, but red flags abound.
Insurance company Transamerica has filed a lawsuit against Moniker, Oversee.net, and multiple John Does in United States District Court in the Southern District of Florida. The suit alleges that Moniker registered domain names including the Transamerica trademark and used these to profit for pay-per-click and pay-per-lead programs.
Transamerica did not provide proof linking Moniker directly to any of the domain names’ registrants, but alleges that many of the domains’ registrants were fictitious. It claims that Moniker is the owner of some of the domains, and that others may be owned by Moniker customers with which the company colluded to hide their identity. It also claims “In some cases Moniker registers domain names in the name of real individuals who are unaware they are being used by Defendants as ‘dummies’.”
The lawsuit doesn’t appear to offer proof of these connections, instead relying on a pattern of alleged abuses undertaken by individuals and companies with inaccurate contact information. But the case includes a number of claims that seem dubious at best, which raises some red flags about these claims.
For example, the suit claims “On information and belief, the majority or substantial entirety of Internet domain names registered by Moniker are owned in the name of fictitious, anonymous, and unaccountable individuals and entities” and “On information and belief, the majority or substantial entirety of Moniker’s income is derived from the registration of counterfeit domain names in the name of fictitious, anonymous and unaccountable individuals and entities.” The lawsuit later goes further, alleging “..Moniker owns and uses more than 2.5 million domain names in the manner alleged in this Complaint”, which is clearly inaccurate.
As part of its proof that Moniker owns many of these domains, Transamerica suggests that the unconfirmed sale price of Moniker to Oversee.net was unjustified:
The $70 million price tag for the sale of Moniker’s business to Oversee.net reflects an astounding volume of profits in comparison to the absence of capital investment or other apparent expenses in Moniker’s business and the low overhead revealed by a small and unmarked office in Pompano Beach where Moniker is or was located with a total of around 18 employees.
I find it difficult to believe that Transamerica’s lawyers took the time to count the number of Transamerica references on a single web site allegedly part of the scheme (1,307), but didn’t discover that, prior to the sale to Oversee.net, Moniker had already been sold to Seevast and had recently concluded a one day auction selling over $10 million in domain names.
Transamerica is throwing in the kitchen sink to its claims against Moniker, citing counterfeiting, RICO violations, wire fraud, and cybersquatting. Domain Name Wire will keep you posted on any further developments in the case.
(Lawsuit PDF, large file)
IrishDomainer says
Wow thats pretty hardcore. The depth of corruption these claims imply is vast. Will be keeping a keen eye on this one!
Namelitigation.com says
Having defended federal lawsuits, the allegations by TransAmerica do not surprise me. Unlike answers in state court, a defendant in a federal lawsuit must respond to each individual allegation. The “upon information and belief” phrase is commonly used by plaintiff attorneys to basically say, “Well, I really don’t know if it’s true or not, but I am going to allege it anyway.” I enjoy litigation. I look forward to following the outcome of this suit. –Ramiro
Andrew Allemann says
Ramiro, wouldn’t the response to those just be “we deny it”? Would it take discovery for them to find out the truth?
Soundly Reasoned says
1. wouldn’t the response to those just be “we deny it”? Yes
2. Would it take discovery for them to find out the truth? Yes
Throw everything, including the kitchen sink, and see what sticks (or stinks). There will be many more filings, counter filings and months before discovery of evidence from both sides.
M. Menius says
Not the kind of news that the domain industry needs. More allegations of infringement and wrongdoing. Really hope this blows over quickly.
Johnny says
I’d say this IS the kind of news we need!
Let’s get this all this TM crap behind us and clean up the industry. We all know some of the most established players are big cybersquatters. I can’t say for sure that Moniker is or is not trading on trademarks, but if they are not then they have little to worry about other than a painfully long lawsuit.
Honestly, I’m sick of the big domain players dragging my domains and my earnings down. I’ve been suffering from diminished payouts….partly due to their laundering TM traffic with my good generic traffic.
Stephen Douglas says
This is an watershed event right now pitting one of the biggest corporate behemoths, TransAmerica, against one of the most respected domain industry companies, Oversee/Moniker.
First of all, it’s laughable that TransAmerica could EVER take a stance that they have clean hands… (I’m hiccuping holding in my guffaws).
Second of all, they seem to have no idea of the power of the domain industry, the waste of time and money they are investing in (but is this just a “lawyer lovefest”?), and the actual outcome won’t be seen for at least a year in the way of “discovery”.
The only possible good thing that comes from this is that Oversee hires a great PR firm, and weekly publishes the legal status of the case as it moves forward. If Moniker is clean, which I’m betting they are, then TransAmerica will look like the biggest bunch of ripoff litigation-whores, and the results may bring the domain industry some respect by the business sector.
I say that Oversee hunts down every enemy that TransAmerica has created in the last 10 years, and invites them over for a sitdown. Dig up the dirt on TA, and then let fly those dirtclods, like, 7th grade neighborhood dirtclod war style.
That’s what I would do, and have done for maximum effect, in winning lawsuits. What’s that Biblical phrase? He who is without sin cast the first stone?
Mark says
Well, Well, what do you know. While I hope is is not true, there is little or no doubt there are a lot of sleazy people in this business. All one needs is a credit card and be able to walk and breath, and instantly they are a business person with visions of grandeur. There is virtually no barrier to entry. In some instances, it actually cost more to take a crap in a pay toilet than be in the domain business. If it is true, I do not blame Transamerica in the least. I hope they squeeze them dry.
Paul Gulio says
http://ip.law360.com/registrations/user_registration?article_id=108401&concurrency_check=false
$13M Patent Verdict Against Transamerica Affirmed
Law360, New York (June 25, 2009) — A federal judge has affirmed a $13.1 million jury verdict against Transamerica Life Insurance Co., holding that reasonable grounds supported the jury’s February finding that Transamerica infringed a patent held by Lincoln National Life Insurance Co. for benefit riders.
Judge Mark W. Bennett of the U.S. District Court for the Northern District of Iowa on Friday entered a final judgment of the $13.1 million damages figure against Transamerica….
Frankied says
I am almost always amused by the domain industry, the thin skin many ‘players’ have (despite the fact that Florida hails as home to many, and the sanctimonious attitudes so many seem to adopted and maintain.
Unfortunately, the world of domain titans and the wanna-be industry royalty is not going to change when the public associates ‘news’ articles such as this one with the overall business of buying and selling domain names.
No one feels sorry for a group of individuals who cry ‘foul’ because a big company tries to assert their rights to ownership – especially when many members of the public realize that profits in the world of domains, can be considered ‘obscene’. Publishing a ‘news report’ of the corporate action, whether that action is right or wrong, will quickly be recognized for what it is – a thinly disguised excuse for a hatchet job.
If this site is going to post news, then 1.)it should enforce a minimum level of journalistic standards; 2.) label opinions as editorials; 3.) post supporting and informational articles about the industry, disputes within the industry, and reactions so that new readers or near new readers can obtain some background and understanding on what is being presented.
Lawsuits, allegations of fraud, ‘slimey’ tactics, and corruption are found everywhere you find money. It seems everybody wants what everyone else has. But, domaniners should take solace in the fact that car salesmen, lawyers, and financial sector execs are still considered the worst of the worst. Domain traders did not get even a single vote.
Mike says
I would think they should be able to follow the money to find out who the real owner of these domains are. If moniker was the sole payee than that would look real bad for Moniker. They also bring up a good point which is the sale of moniker for such a large amount with no known source of income or investment’s with very little overhead.
I would like to know the reported income for moniker and the source of this income for the last few years. Was it all from ppc if so was from all the so called fictitious dummy sites? That could be problem also.
Andrew Allemann says
Mike, I believe Moniker makes most of its money from domain registration fees. With regards to the sale of Moniker for such a large amount, I don’t think anyone has ever confirmed the sale price. As I wrote, the sale price was likely based largely on Moniker’s success with live domain auctions.
shahram says
I wonder if these lawyers are claiming that moniker is involved because of the Whois protection info.
Andrew Allemann says
@ Shahram – that’s part of it. They’re claiming that even when the whois is “unmasked”, the information is invalid.
Michelle Ruiz says
I wonder if David Steele is behind this..
Mike says
But what about following the money? would that not tell the real truth?
Andrew Allemann says
Mike – what money? From what I can tell, only some of these domains were even parked at DomainSponsor.
Mike says
The fees paid out to the domain owners of the names in violation of trade mark infringement.
Andrew Allemann says
Mike, so you’re referring to DomainSponsor fees. I guess that could be done for the domains that were parked at DS.
Lane Mortensen says
I wish Transamerica the best of luck. Moniker deserves to be slammed and slammed hard.
Mike says
I would think if Moniker is innocent they would not be any monetary gains paid to them and would this not prove they were guilty ?
John Berryhill says
“I wonder if these lawyers are claiming that moniker is involved because of the Whois protection info.”
That appears to be much of what they are contending.
In at least one instance, they identify Ultimate Search Inc. as among the “fake entities”, and I apparently received an honorable mention in the Complaint. Prior to the close of Ult. Search’s operations and sale of assets some years ago, people used to regularly claim they were “fake” merely because they were indeed located in Hong Kong, and were certainly a bona fide corporation. I guess I’ll have to pull out the corporate records that were submitted in the paparazzo.com UDRP, where that allegation was addressed some years ago. So, to the extent the Complaint claims that Ult. Search Inc. was some fiction made up by Moniker, or had any association with Moniker other than as a domain registrant, Mr. McDonald is full of crap.
Another interesting violation of Federal Rule 11 by Mr. McDonald is that he lists the following UDRP decision as having resulted in a transfer:
http://domains.adrforum.com/domains/decisions/651447.htm
“Having failed to establish the first element required under the ICANN Policy, the Panel concludes that relief shall be DENIED and the Complaint DISMISSED.”
Mr. McDonald apparently does not know how to read a UDRP decision, or simply decided for reasons known only to him, to state a direct untrue allegation, sign it, and submit it to a court.
Andrew Allemann says
Nice catches, John. The legal team certainly ran up a bill counting the over 1,000 references to Transamerica on one web site, but didn’t bother to run cursory checks on something as simple as UltSearch.
John Berryhill says
“Nice catches, John. The legal team certainly ran up a bill counting the over 1,000 references to Transamerica on one web site, but didn’t bother to run cursory checks on something as simple as UltSearch.”
I think they actually believe that every Moniker customer is simply made up by Moniker.
Apparently, I represented a non-existent client for several years. I guess that explains the pixie dust on their bill payments.
Or, since they list my name in the contact information, which of course was not in the WHOIS data, but instead copied from a UDRP complaint as the legal representative, maybe I don’t really exist. I’ll have to see if I’m disappearing from family photos like Marty McFly in _Back to the Future_.
But try to imagine my surprise upon learning today that I’m not real!
John Berryhill says
Here’s another one. They mention Express Corporation as being another “fake” entity.
According to Express Media Group, LLC, et al. v. Express Corporation, et al.
No. C 06-03504 WHA (N.D. Ca., May 10, 2007), that “fake” entity is able to hire an attorney, show up, give testimony, and defend a lawsuit concerning purchase of a hi-jacked domain name.
That’s impressive, for a party which doesn’t exist.
Andrew Allemann says
John, be sure to bill Oversee for the free work you’re providing to them 🙂
Stephen Douglas says
@ JB and Dub-A
ROTFL! I roll with the pixie dust… lol.
Excellent commentary.
@ Paul Gulio – thanks for backing me up on pointing out the sleaze tsunami that is TransAmerica.
@ “Frankied”… you’re all over the place on your response… Domainers make “obscene” profits, (you’re a socialist?) and then we don’t rank in the sleaze vote for professions? When the business sector sees TA get their ass handed to them on this lame lawsuit, it will just bring in more value and sales in a legitimate source of internet “real estate” industry that has PROVEN value-driven marketing assets.
John Berryhill says
“John, be sure to bill Oversee for the free work you’re providing to them”
Heh.
You have to admit it is sort of odd that the implicit contention is that Moniker is supposed to carefully verify the identity of registrants, and is apparently supposed to monitor how many UDRP complaints they receive, while the Schnader firm, with a staff of lawyers, can’t get basic facts straight in their complaint.
Caroline says
Who is Transamerica calling “fictitious, anonymous, and unaccountable individuals”? That would be me! I register all my domains there nowadays…and none of them are trademarks, unless you count priusminivan.com, which just expired anyway. Just my luck Toyota will announce this week!…