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Brian Pasch

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Note: This is a MUST read for any Toyota dealer. Toyota is starting the New Year with a renewed effort to go after Toyota dealers who have purchased domain names other than their registered primary Toyota domain. If you are a Toyota dealer that operate microsites on multiple domains or landing pages that include the word "Toyota" you will be asked to remove your content and hand over the domain ownership to Toyota immediately. This popped up when we tried to run a Google Adwords campaign to a dealer microsite that had the word Toyota in the URL name. Google blocked the ad because it was not a registered dealer domain name. It appears that Toyota gave Google a list of approved primary dealer domains and locked down anyone using Toyota in the domain that was not a primary dealer. Sub-domains are OK for now This crackdown will reduce Toyota dealers to having one website with the option of having multiple sub-domains. Blogs hosted outside the dealer's primary domain will be forced to be taken down. A sub-domain example is http://service.woburntoyota.com and dealers can create as many sub-domains as they want. They will not be able to create a website at www.toyotaservicewoburn.com or www.bostontoyotaservice.com. It is not clear if the sub-domain names will be limited in terms of city names that can be used. Regardless of Toyota's motives or an attempt to keep the "brand" consistent and to limit the use of their "mark" in domain names, dealers will be hurt in many ways. Dealers will have no choice but to forfeit all non-primary domains. Since Toyota dealers will be knocked out of the box for their current web marketing investments, I will also talk about third party companies and private individuals that own domains that include the word "Toyota". I will also discuss what alternatives dealers have for replacement Internet Marketing strategies.
While Toyota dealers can take out TV, radio and print advertising that crosses official PMA lines, this move by Toyota is not about protecting dealer 's primary market areas .
If it's a move to cut down on third party lead collector's that will also fail because of sub-domains. Just type into Google "Toyota Cars" and you'll see some of the largest lead collectors on Page One. Lead Collectors will Smile This crackdown will be welcome news for third party lead collectors and automotive listing websites that have been blocked from Google Page One from multiple dealer owned microsites. Many companies will be popping champagne when they will have easier access to get on Google Page One since dealers will not be able to own multiple versions of their own domain names. Toyota's decision to limit their dealers to one domain for their branded marketing will impact their ability to compete; dealers in larger cities where franchises are close together will be hurt even more. Toyota could be planning on taking domains like www.chicagotoyota.com from individual dealers and turning it into a local lead generation website for their dealers, but that will have to be seen. For now, they will force all dealers to forfeit their domains to Toyota and then go after third parties. If a third party takes down the domain and just parks it or converts it into a consumer blog with no money making purpose, Toyota may not be able to recover these domain names because they will fail the three basic criteria listed by the WIPO, shown later in this article. Some Third Party Lead Collectors Will Be Shutdown Their decision will also affect smaller lead collection companies that have purchased domains like:
  • http://www.toyotacarsforsale.com
  • http://www.toyotatrucksbonusbucks.com
  • http://www.toyota-camry.com
Some of these websites are secretly operated by Toyota dealers and others are just selling the leads to resellers. Both will be impacted by this crackdown. Are User Forums in Jeopardy? I don't know if Toyota plans to go after popular user group forums that generate revenue from ads sales and Google Adwords like:
  • http://www.toyotanation.com
  • http://www.toyotaforums.net/
  • http://www.toyota-4runner.org/
As you read the rules set by the WIPO a sticking point for these sites are that they are generating revenue off the Toyota name and that may give Toyota a case against them. Forum owners will say that this is freedom of speech but the WIPO might use their advertising revenue against them. If Toyota chooses to leave forum websites up, they may be creating a double standard for dealer and third party compliance. Let me say that I do not believe that these Toyota forum sites confuse the public, but that is not the standard that Toyota appears to be using. If dealer brand microsites are being taken down that are clearly marked as a local dealer and not corporate, then a larger agenda is at play. WIPO Official Rules Pertaining to Domain Names The official rules regarding domain names that include a trademarked word like "Toyota" are not cut and dry. I have tried to simplify my interpretation but here is the official wording from the governing body pertaining to domain disputes.

(i) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the domain name in question; and

(iii) the domain name has been registered and is being used in bad faith.

If a non-Toyota dealer, like an independent used car dealer, who operates a website like www.bostonusedtoyotacars.com, that provides information on Toyota cars and the website doesn't look like a Toyota branded site, do they violate all three of the guidelines above? Would any consumer think this is the corporate Toyota site? I do not think so. Since the used car store can legally sell Toyota used cars in Boston, did the owner purchase the domain in bad faith? I don't think so. Examples of Other Domain Disputes There are a number of cases where upset consumers have created a website to express their dissatisfaction with a company or person. The domain they posted content on included a trademarked, incorporated or individual's name. In recent news was a case filed by Fox TV anchor Glen Beck against the owner of the domain:

www.glennbeckrapedandmurderedayounggirlin1990.com

The WIPO (http://www.wipo.int) dismissed Beck's claim, you can read this blog post: Glen Beck Dispute What May Be Safe When challenged in domain name disputes, some individuals were victorious based on a few conditions and freedom of speech laws. If we applied past WIPO domain dispute decisions to Toyota's current efforts to collect many Toyota domains in use, they would most likely lose in all cases where:
  1. The site did not confuse the consumer in thinking that they are on a Toyota Corporate website.
    1. Shouldn't copy the layout of Toyota.com or related properties
    2. Shouldn't attempt to make visitors think they are on a Toyota site
  2. It should not contain the Toyota logo.
  3. It clearly identifies itself as an independent website.
  4. The site should not be created to divert customers from the primary trademark holder.
    1. Examples: Toyota.net or ToyotaCorp.com could not be used
  5. It is not for profit and informational in nature.
I'm not pretending to provide legal advice here, so you can read the rules yourself or hire an attorney for legal advice if you want to fight the letter that will soon arrive at your door. From my interpretation of past cases from the WIPO, creating a blog at www.toyotacartalk.com and allowing consumers to express their opinions would be allowed. Toyota would most likely lose a case if they wanted to take down a blog with this name as long as it is not making money or using the Toyota logo. It is a matter of freedom of speech. Case in Point: Freedom of Speech A famous freedom of speech case was over a Web site www.chelwest.com, operated by Frank Redmond, which expresses inflammatory opinions about a public hospital -- Chelsea and Westminster in London. Redmond was not happy with the hospital's treatment of his daughter. The hospital claimed that the site's name is too similar to its own site, and that "Chelwest" is part of the hospital's branding and therefore its intellectual property. The hospital's Web site is www.chelwest.nhs.uk. The single person panel ruled in favor of Redmond. The reasons were: Redmond is not using the site for any commercial gain and it is immediately apparent to Internet users who visit the site that it is not the official site; Redmond, according to the panel is simply criticizing the hospital with opinions which he believes to be true; it is not obvious that Chelwest is branding of the hospital. This case is interesting because the panelist deciding the case had tried to draw up a set of criteria that could be used to judge whether a freedom of speech site should be permissible or not. What CAN Toyota Dealers Do? From what I have been told Toyota dealers can NOT create blogs or marketing websites outside of their primary domain. If you have a free VOX, WordPress or NING community website that will have to be taken down. If Toyota dealers scream loud enough that might change but for now dealers will buckle because Toyota holds the purse strings.

So could Miller Toyota create a website called "www.ilovemillercars.com"?

From what I know, the answer is No

What Toyota dealers can do is push their inventory out to highly optimized local website properties that do not contain Toyota in the domain name but in the sub-domain. There are a number of related solutions that will allow Toyota dealers to post their cars, stories and sales on third party websites that have high rankings. Any Toyota dealer that needs help, can call or ask questions on this forum. Before Toyota started this crack down, it was clearly cheaper for Toyota dealers to own their own marketing microsites, but now Toyota will increase their advertising spending costs several fold.

Is there a solution?

The ruling will be good for companies like mines because we have many automotive domain names that do not include Toyota in the URL that we can optimize for local Toyota dealers. We will move any microsite content with the now prohibited domains to their primary websites. We also have a few new strategies that will be compliant so no Toyota dealer will be left behind. Since we will only work for one Toyota dealer in a marketing region, those that act quickly will have a solution that can be implemented quickly. In the end, it's bad for Toyota dealers and will be a costly decision to limit free market thinking on the Internet. As I stated before. Toyota dealers can take out TV, radio and print advertising that crosses official PMA lines so this is not about protecting dealer franchise marketing. Again, this is good for some businesses but NOT local Toyota dealers who were smart enough to be entrepreneurial in their Internet Marketing plans. I'll have more to report as this story unfolds... Brian Pasch, CEO Pasch Consulting Group http://twitter.com/automotiveseo 732-450-8200

This blog post is not intended to give any legal advice. If you are involved in a domain dispute, contact your lawyer or a domain litigation attorney.

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