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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 114077
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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If I have a business name registered and have conducted work

Resolved Question:

If I have a business name registered and have conducted work as this business though a rogue employee owns the domain name and leaves the company. Do I have the right as email administrator to deny him access to his account as means to protect them sending hostile emails out. I set up the email accounts and email name as administrator. I attempt arbitration to receive a separation agreement that would prevent them from any further hostile action. After they continued to come into office and not respond to mediation request, we decided to change password XXXXX reach out again for an amicable signed agreement before allowing them to access their email and contacts. They are threatening suit. What is the right thing to do?
Submitted: 6 years ago.
Category: Legal
Expert:  Law Educator, Esq. replied 6 years ago.
If you can prove you have used the name in commerce since before the employee obtained the domain name, then this can be a violation of the anti-cybersquatting act as well as an infringement on your trademark rights and this is what you need to inform this employee in writing. The fact that your attorney suggested conversation means they were trying to save you litigation expenses, but you have rights to protect your trademark. Additionally, you should be changing the locks and pass codes to prevent any further entry upon the premises and inform the employee that any further attempts to enter the premises would constitute trespassing and will lead to criminal prosecution. If they refuse to surrender the domain name, then you could have an action against the employee under the cybersquatting law and trademark violation.

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Customer: replied 6 years ago.
I see. I guess then it comes down to wether or not they have the right to access to their email account that is hosted by a different service provider in the company name while he has ownership of a domain name that is named for the company (that I am the owner of). While we were operating as company,in as much as seeking work and starting 1 probono job, I had not yet filed fictitious business name.

The claim they are making is that since they own the domain name, we have no right to have changed password, and denied them access to the email account and contacts.

Bear in mind that when they shut down domain, we all lost emails and contacts since the independent email service provider no longer was able to route through domain name. I had to rebuild contact lists and reestablish new domain name and email addresses within 24 hours so as not to loose any business.

In their mind somehow we have violated their rights by disallowing them to get into email.

Any thoughts on that?
Expert:  Law Educator, Esq. replied 6 years ago.
It is not so much whether you filed the name, it is going to be whether or not you can prove you used it in commerce before they obtained the domain name. This is going to be one of those factual calls if it goes to court because of the strange circumstances of having an employee with a domain name that is being used by the company and if he owned the domain name that he was allowing the company to use and there was some agreement initially on this, then he could very will have a claim that you denied him access to something he owned. Honestly, this may end up a large litigation nightmare, which may be even more reason why the attorney told you to try to settle it.
Customer: replied 6 years ago.
We had entered in on a JV partnership without any written agreement and he walked out stating that he did not want to pursue this profession or business ownership. He stated upon leaving that he had no contract with me and that he had nothing invested and could walk away at any point. True in all statements that we had a very casual agreement and never assumed I would be left with contracts and obligations providing service partially reliant on their skills. They asked to come back and do admin and I said I didnt feel that was wise after abandoning the partnership and obligations.

This is why he opened the domain name initially. It was a delegated task since they were not investing anything, We found the domain name and discount for a whopping $2.00 and asked that they take care of this task.

Hence the strange arrangement. Would you recommend letting them access the email account and risk aftermath, or given that I own business, equipment, office, designed website and all propaganda materials, and have secured and conducted work pro bono as part of our effort to build name with 2 of ca largest counties on major local agency and public government entities? We have become well known and have received accolades for work produces as said company. I just received our first paid contract today for a major CA transportation effort.

What to do.

Expert:  Law Educator, Esq. replied 6 years ago.
I would not risk allowing them to access the email, but I would strongly urge you to make some deal here as your attorney advised, because as I said, you have a litigation nightmare that could be very costly.
Customer: replied 6 years ago.
I completely understand and offered up access in exchange for a signed agreement that he would not harm or disparage the fuze name. I offered that up as well as a mediated conversation. He did not comply and took down domain hence company website, email, etc.

So if I have offered without receiving any response. He left a message with staff email administrator saying they were going to file suit against them personally because I decided to limit access and instructed the it person to do so, there by implicating them in illegal activity.

SO in short, If I have made an attempt and this doesn't seem to be what they are willing to agree to, then what?
Prepare to pay mega bucks to an attorney and hope for the best?

I truly appreciate your insight and dont know if the standard inquirer asks this many followup questions. My apologies.
Expert:  Law Educator, Esq. replied 6 years ago.
You do not have to offer any more access. At this point, you should sit and just let him make the first move and take no further action and make no other offers. Just wait for them to take action. When they make a next move, you can then begin your negotiations and it should be for some monetary amount not for access.
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