Ethics question: do you abide by a client's wishes even if you disagree?

[kushiel]

Meh. I start getting iffy when people are wanting to use linkfarms and black hat SEO, but hey, I’d do it for money anyway.

I’ve had bosses ask me in the past if I’m okay doing site. As long as it isn’t illegal and the client isn’t requiring me to personally enjoy , hey, I’ll do any website for money!

I actually got into an iffy legal situation once - dude was selling sport car replica kits and got dinged by a famous sports car maker. We had to change the site fast. I’ve also worked on sites with political and moral agendas. And sex toys.

[Boyo_Jim]

@DiosaBellissima

Like I said, I think the risk is more civil in nature than anything.

Has any court anywhere enforced this ICANN company’s ethics policies – does ICANN have any connection to a government, or the UN or the like?

[DiosaBellissima]

@Boyo_Jim

Has any court anywhere enforced this ICANN company’s ethics policies – does ICANN have any connection to a government, or the UN or the like?

Of that I can’t speak. I know in the case of our competitors, they tried to claim that because their name is trademarked, us utilizing it in any way was a violation of that.

So, if the OP’s competitors have trademarked names and she bought up those domains, I wonder how that comes into play in regard to the trademark? Maybe she’s allowed to hold them, but has to pay royalties to the trademark owner? I honestly don’t know.

[choie]

@DiosaBellissima

As soon as her competitors become hip to what she’s doing, I’m certain she’ll be receiving some legal letters. Hell, we once mentioned one of our competitors by posting a link on our site to an article about them being shut down by the government and within 24 hours, we had a stack of complaints from their legal team. Good times.

Wow. That’s impressive – but did they have a leg to stand on? You were posting a news article that was, presumably, true. Did you take the article down?

I just spoke with the client and of course she defended her use by pointing out that her competitors have her company name domain under a different TLD (e.g. domain.co.uk) pointing to their website. But she said she’d take responsibility for doing that stuff–she’s cool that way.

What can I say, I’m just easily squicked out by this sort of retaliation. If it’s wrong when they do it, it’s wrong when we do it, far as I’m concerned.

@Boyo_Jim

What exactly is her risk? You’ve said what she’s doing isn’t illegal, so how can ICANN penalize her?

Also, what would your ethics say about doing the work, and then ratting her out?

To answer the first question: ICANN wouldn’t penalize her, I don’t think–well, aside from taking the domain away, which they have the power to do–but as DiosaBelissima says, a civil suit is certainly a possible result. Plus there’s the more nebulous risk of reputation-tarnishing.

To answer the second: No way would I do that. Yipe. That’d be worse than the hypocrisy I’m (kinda sorta) accusing her of.

Finally on preview I see you’re asking about whether ICANN has any leverage in court. I’m not sure about that, but here’s what Wikipedia has to say related to the Uniform Domain Name Dispute Resolution Policy I mentioned above:

@wikipedia

The goal of the UDRP is to create a streamlined process for resolving such disputes. It was envisioned that this process would be quicker and less expensive than a standard legal challenge. The costs to hire a UDRP provider to handle a complaint often start around US$1000 to $2000.

If a party loses a UDRP proceeding, in many jurisdictions it may still bring a lawsuit against the domain name registrant under local law. For example, the administrative panel’s UDRP decision can be challenged and overturned in a U.S. court of law by means of e.g. the Anticybersquatting Consumer Protection Act. If a domain name registrant loses a UDRP proceeding, it must file a lawsuit against the trademark holder within ten days to prevent ICANN from transferring the domain name.

… (snip) …

The UDRP process has already been used in a number of well-known cases, such as Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com”. In this case, the arbitration panel found against the defendant registrant based on all three of the above factors and ordered the domain name turned over to Madonna.

Often there is contention over similar but not identical domain names, in which the offended party files a court action claiming trademark or copyright infringement. For example, actor Robert De Niro has claimed ownership of all domain names incorporating the text “Tribeca” for domain names with any content related to film festivals. In particular, he has a dispute with the owner of the website http://tribeca.net.

So it’s not like millions of dollars are at stake, but several thousand are involved, and for a small business, I wouldn’t consider the risk worth the gain. Clearly many disagree though, and that’s fine. I don’t have to help 'em, and apparently there are many developers like kushiel who will. And that’s fine too. : )

[choie]

Oh and here’s info on the Anticybersquatting Consumer Protection Act, which does include what is more properly called brandjacking (e.g. attempting to dillute a trademarked brand name and profitting from same):

@wikipedia again

Under the ACPA, a trademark owner may bring a cause of action against a domain name registrant who (1) has a bad faith intent to profit from the mark and (2) registers, traffics in, or uses a domain name that is (a) identical or confusingly similar to a distinctive mark, (b) identical or confusingly similar to or dilutive of a famous mark, or (c) is a trademark protected by 18 U.S.C. § 706 (marks involving the Red Cross) or 36 U.S.C. § 220506 (marks relating to the “Olympics”).

A trademark is famous if the owner can prove that the mark “is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner.”

“Trafficking” in the context of domain names includes, but is not limited to “sales, purchases, loans, pledges, licenses, exchanges of currency, and any other transfer for consideration or receipt in exchange for consideration.” The ACPA also requires that the mark be distinctive or famous at the time of registration.

In determining whether the domain name registrant has a bad faith intent to profit a court may consider many factors including nine that are outlined in the statute:

1.the registrant’s trademark or other intellectual property rights in the domain name;
2.whether the domain name contains the registrant’s legal or common name;
3.the registrant’s prior use of the domain name in connection with the bona fide offering of goods or services;
4.the registrant’s bona fide noncommercial or fair use of the mark in a site accessible by the domain name;
5.the registrant’s intent to divert customers from the mark owner’s online location that could harm the goodwill represented by the mark, for commercial gain or with the intent to tarnish or disparage the mark;
6.the registrant’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or a third party for financial gain, without having used the mark in a legitimate site;
7.the registrant’s providing misleading false contact information when applying for registration of the domain name;
8.the registrant’s registration or acquisition of multiple domain names that are identical or confusingly similar to marks of others; and
9.the extent to which the mark in the domain is distinctive or famous.
The ACPA does not prevent the fair use of trademarks or any use protected by the First Amendment, which includes gripe sites. In Mayflower Transit, L.L.C. v. Prince, 314 F. Supp. 2d 362 (D.N.J 2004), the court found that the first two prongs of Mayflower’s ACPA claim were easily met because (1) their registered trademark was distinctive and (2) Defendant’s “mayflowervanline.com” was confusingly similar to Plaintiff’s Mayflower trademark. However, when the court was examining the third prong of Plaintiff’s ACPA claim, whether Defendant registered its domain name with the bad faith intent to profit from Plaintiff, the court found Defendant had a bona fide noncommercial use of the mark, therefore, the ACPA claimed failed.[14] “Defendant’s motive for registering the disputed domain names was to express his customer dissatisfaction through the medium of the Internet.”

The domain name registrar or registry or other domain name authority is not liable for injunctive or monetary relief except in the case of bad faith or reckless disregard.

While § 1125 protects trademark owners, 15 U.S.C. § 1129 protects any living person from having their personal name included in a domain name, but only when the domain name is registered for profitable resale.

[FlyByNight512]

This may be coming too late to be of any use to you, but I think you’re right to follow your gut and say no to this one. You might tell the client “hey, doesn’t that violate UDRP?” and hope she takes the hint that you’re not comfortable doing it and drops the matter. You’re right that this is more of an ethical molehill than a mountain and under different circumstances it might make sense to go ahead and do it, but the way you’ve described it you’d be bothered by doing it and probably won’t be harmed by refusing.

I’d be more concerned that she and her competitors apparently have a long-running semi-illegal war going on. It sounds like there’s enough potential for it to blow up into a serious legal matter that I’d be careful to keep myself completely out of it. There’s nothing to be gained by getting involved in that!

[choie]

Thanks, FlyByNight512. (Were there really 511 other FlyByNights here already? :D) That’s pretty much exactly what I told her, and she basically said that she’d take responsibility for it (meaning the forwarding work as well as any consequences thereof).

As far as doing semi-illegal things… yeah, been there, done that. She is convinced that her competitors DDoSed her server back during the most busy holiday for their industry, resulting in her site being down for three days that really screwed up the bottom line for her this year. I must admit I find her accusation hard to believe, because from what I’ve seen of these competitors, they’re not all that tech-savvy. But then again, it probably doesn’t cost much to advertise on Craigslist for some script kiddie based in Russia to do the dirty work. So who knows. I’m just glad my client hasn’t made noises about doing something similar, because then we’ve got some kinda Jets/Sharks deal, or a “He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue!” escalation.

The funny thing? This particular industry basically caters to folks who like unicorns, rainbows and Care Bears. You’d never thing it was this cutthroat!

[panache45]

I once had to resign from a job because I was expected to do something that was against my personal ethics. My guess is that **choie **really wants to do what’s right, but is looking to justify the transgression by asking for our approval and permission. Sorry, choie, you know right from wrong, and you also know the decision is yours.

[choie]

@panache45

I once had to resign from a job because I was expected to do something that was against my personal ethics. My guess is that **choie **really wants to do what’s right, but is looking to justify the transgression by asking for our approval and permission. Sorry, choie, you know right from wrong, and you also know the decision is yours.

Wow. I cannot fathom how you got that reading from anything I’ve written here.

Let’s Zapruder this, shall we? I started out saying I didn’t want to and probably wouldn’t do it, continued to state that I probably wouldn’t do it even though most of the early responders said I was basically being too uptight, have now said at least twice that I’ve already told my client I wouldn’t do it, and even gave cited details as to where the rules stand on this matter to explain why brandjacking is wrong and what the possible consequences could be.

But otherwise, yeah, I was clearly hoping y’all would let me go against my ethics. Well done, Columbo.

[FlyByNight512]

@choie

(Were there really 511 other FlyByNights here already? :D)

Nope, but there were on Gmail when I grabbed the matching email address! Actually, I’m not sure. Being a tech type, 512 is easy for me to remember (since it’s a power of two), and it’s large enough that I can be pretty sure it’s not already taken no matter where I go. There is (or was) a FlyByNight here, hence why I used the numbers. If they’re still an active member, I’ll probably change my handle.

I’m glad to hear things are settled with your client! What an effed up business model. :rolleyes:

[RealityChuck]

I’d do the job, then notify the trademark holders involved.

[Omar_Little]

As long as you have advised your client of the risks of taking such actions and that she agrees that you are not responsible for any such actions (in writing), as long as it wasn’t illegal, I say go ahead.

Seriously how big of an industry is this where people from the UK, Italy, etc are seeking her services?

[choie]

@Omar_Little

As long as you have advised your client of the risks of taking such actions and that she agrees that you are not responsible for any such actions (in writing), as long as it wasn’t illegal, I say go ahead.

Seriously how big of an industry is this where people from the UK, Italy, etc are seeking her services?

It’s a small niche industry, but they definitely get business from the UK and other English-speaking countries. Also the products are quite popular gifts for anyone stationed overseas.

Really, though, the domain issue is more for SEO (search engine optimization) purposes than actual intentional type-in traffic.

F’rex, if you sell widgets under the name “WidgetWorld.com” and your competitor grabs the domain “WidgetWorld.co.uk,” anyone doing a search for “WidgetWorld” or even just “Widget” could very well get “WidgetWorld.co.uk” in their results.