Cybersquatters are playing hardball over a hyphen.
Daily Harvest, a New York–based frozen-drinks company, says it’s being “extorted” by internet squatters who are allegedly directing potential customers to controversial websites, according to a lawsuit. Daily Harvest runs its business of “frozen cup” soups, smoothies and yogurt parfaits made of unprocessed foods from its website, at daily-harvest.com.
But it doesn’t own dailyharvest.com — the opposing side in the suit said the domain name was purchased in 2008 — and that’s the origin of its Manhattan Federal Court lawsuit. It says dailyharvest.com browsers are purposely being directed to seriously off-brand websites because Daily Harvest won’t pay up to acquire the unhyphenated domain name.
According to the lawsuit, potential customers looking for frozen smoothies or soups have ended up instead at President Donald Trump’s campaign site, or a profile page on Gab.com, a social-media site where hate speech is allowed. It gained in notoriety after one of its users allegedly killed 11 worshippers last month in an anti-Semitic attack at a Pittsburgh synagogue last month.
‘Like many brands, Daily Harvest remains apolitical. By improperly affiliating Daily Harvest with polarizing, right-wing viewpoints, plaintiff’s brand has been cast in a negative light.’ Court papers filed by Daily Harvest
“The Daily Harvest brand has suffered tarnishment by being associated with gab.com and donaldjtrump.com. Like many brands, Daily Harvest remains apolitical. By improperly affiliating Daily Harvest with polarizing, right-wing viewpoints, plaintiff’s brand has been cast in a negative light,” according to court papers filed Friday.
The 4-year-old company, founded by Rachel Drori, has worked hard to build its business, according to the suit, and that “depends on a strong online presence and acute brand awareness, particularly among its target demographic.” The company has between 85 and 100 employees.
Daily Harvest charges that, while it is creating healthy products for consumers, its adversary is merely trying to make cash off web addresses. The defendants include eNaming.com, a domain-name brokerage firm; its founder and CEO, Tracy Fogarty; and the unidentified domain-name owner.
Starting in February 2016, Daily Harvest and Fogarty began “off and on” talks about transferring ownership of the unhyphenated name, the complaint says. Fogarty and eNaming.com were acting as sales agents for the anonymous owner, the filing notes.
‘It is not cybersquatting when someone comes along and decides to adopt your domain name as a trademark. There is a secondary market in domain names.’ Lawyer for the domain-name brokerage firm
The initial request, according to the suit, was for $65,000 to $75,000, an asking price that, by August, allegedly rose to $170,000. When Daily Harvest balked at that figure, Fogarty, according to the frozen-food company, said the current owner of the domain “might forward the site to an adult website,” which “would not be a good look for Daily Harvest.”
Fogarty referred comment to lawyer John Berryhill. Berryhill said Fogarty did not own the domain name or control the content of the website at its URL. He threw cold water on the cybersquatting claim. “It is not cybersquatting when someone comes along and decides to adopt your domain name as a trademark,” he told MarketWatch.
“There is a secondary market in domain names,” Berryhill noted. “People buy and sell domain names every day.”
Berryhill said Daily Harvest offered in about August 2016 to pay $35,000 for the dailyharvest.com domain. Both sides, he said, had agreed to the deal, but Daily Harvest backed out. The lawsuit makes no mention of an unsuccessful $35,000 deal.
On Nov. 2, the company saw that dailyharvest.com was directing visitors to the Trump campaign website. The following week, the website directed visitors to Gab.com, where the profile reposted all sorts of controversial content.
Among other things, the defendants “reposted content under the Daily Harvest name that is directly at odds with Daily Harvest’s brand identity of healthy, unprocessed foods.”
Daily Harvest Daily Harvest says its strawberry-and-peach Reviver smoothie is a best seller.
The lawsuit includes an image of a scantily clad woman with a beer, a heavy-duty firearm and a plate of what look to be tacos. “Everything a man thinks about summed up in one picture,” the picture’s text blared. The Daily Harvest profile on Gab reposted the image.
“These associations with extreme racist, anti-Semitic, and misogynistic hate speech are antithetical to Daily Harvest’s carefully built brand. Daily Harvest carefully cultivates a wholesome, healthy, non-partisan image,” according to the suit, adding that possible customers and business partners already have inquired as to why the company is getting involved with such content.
When MarketWatch checked the dailyharvest.com domain Monday, it was sent to Gab.com:
A post seen by MarketWatch read as follows: “Rachel Drori. I’m Not Going To Be Bullied By You Or Your Attorneys, I’m Not Going To Be Scared By Your Intimidation Tactics. My Name, I Do Whatever I Want With It, Like Supporting #Trump.” On Tuesday, the dailyharvest.com website returned only an error message.
In a statement, a Daily Harvest spokesperson said the lawsuit “is just one of dozens that New York companies have been forced to bring against cybersquatters attempting to unlawfully make money off a business’s trademark.”
He added, “No one should be extorted to pay money lest its brand be used to advertise hateful, xenophobic and anti-Semitic content. We look forward to prevailing on the merits and helping to prevent this from happening to other small businesses whose success attracts extortion artists like the defendants here.”
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