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Domain Name Law

A domain name can be defined as a unique address or URL of a website. Domain names can be seen everywhere, eg: in TV and magazine adverts, and are used by many businesses with online shops or websites about themselves. This is when disputes between the ordinary person and a business occur. A person may own a similar domain name to that of a business’ and be using it in a way that conflicts with the business or in a way that could distort the company image or just simply for their own gain. The business may then “fight” to get rights to that domain name. Disputes have been going to court since 1994 and if a court finds that a domain name registrant (the owner of the domain name) has been acting in bad faith, they will prevent the domain holder from continuing to use the domain name in question. A few examples of disputes over domain names include, ‘Reed v Reed’ and ‘The “Sucks” Suffix’.

Domain Names are registered on a database and will show several details:
  • The Registrant: The individual stated is the “owner” of the domain name.
  • Administrative Contact: The person who receives contact from the registrar relating to administration of the domain name
  • Billing Contact: The person who receives notices from the registrar which involve renewing the domain name and paying the registration fee. 
  • Technical Contact: The person who is contacted about technical difficulties concerning the domain name. 
  • Record Expiration Date: The date the domain name will be withdrawn unless the renewal fee has been paid. 
  • Record Creation Date: The date the domain name was first issued to the registrant.
Most dispute cases are those of trade mark infringement. Under the Trade Marks Act 1994 the registered owner of a trade mark can issue a claim to prevent another individual using a mark/symbol which is identical or similar to that of the registered trade mark, therefore reducing the chance of someone being able to take advantage and damage the reputation of the trade mark owner.

One major problem revolving around domain names are ‘Cybersquatters’. ‘Cybersquatting’ is illegal and involves someone buying and registering domain names or trademarks with no intention to use them, but with an aim of making a profit from it. This person might then try to sell the domain name for a large profit to someone (most likely a well established company) who has an interest in having registration of the domain name. The ‘cybersquatter’ might also use the domain name to attract customers away from a competitor or damage a company’s reputation.

“Suck Sites” such as www.natwestsucks.com have also created problems for businesses. In dispute cases, arbitrators and the courts have ordered the removal of offending domain names especially if there have been acts of bad faith or lack of lawful use. Arguments have also been put forward which include freedom of speech arguments. However, these have been rejected by the courts which ruled using another person’s identity might lead to confusion of the public into thinking the claimant’s company is the source of the problem.

On the other hand, in some cases it is thought that legitimate sites regarding public interest concerns may be able to successfully defend the registration of such a domain name. However, most cases are cases of bad faith and attempt to gain a commercial advantage.

There are various methods available to resolve disputes. These include:
- Litigation: this form of dispute resolution involves using the courts. In England and Wales, before court proceedings begin, it is necessary to follow a “pre-action protocol” which sets out the steps each party must take. This is done to encourage effective administration of cases by the courts and the exchange of information/documents which allow the dispute to be settled before the case reaches court.
The advantage of this will be that costs and benefits are indentified early and substantial costs acquired at the beginning of the case rather than at the end. Usually the ‘losing’ party has to pay the costs of the successful party. However, there are many disadvantages to court hearings and Alternative Dispute Resolution (ADR) is becoming more popular due to the difficulties faced trying to resolve disputes through court hearings.

Methods of ADR include:
  • Negotiation: whereby the parties or their lawyers try to resolve the problems themselves. This method is not as widely used as the three listed below. 
  • Mediation: involves the appointment of a neutral mediator who helps the parties in a dispute reach an agreement which each deems acceptable. When mediation is successful and an agreement has been reached, it’s written down and forms a legally binding contract. 
  • Conciliation: this method is similar to mediation but the conciliator (a third party) puts forward ideas for compromise between the parties. It is a process where the two parties are brought together to reach an agreement. 
  • Arbitration: where both sides to the dispute agree to let a third party, the arbitrator, decide the case. The arbitrator may be a lawyer or an expert in the field in question. They will make a decision based on the law and their decision is legally binding (it applies to all following cases with similar facts).
Individuals often prefer methods of ADR as they are low cost; quicker than court hearings; avoid a winner/loser situation and helps keep business relations possible. Arbitration also allows business secrets are not made known to competitors as the process is private. However, fees can be high.

Conclusion
To sum up, domain law can be defined as the rules and regulations that govern the use of domain names so as to not create disputes between the ordinary person and businesses or between two businesses with similar names. If a dispute does occur there are various methods which can be used to help sort out the problem quickly and privately. Just remember, the buying and selling of domain names is not illegal but infringement and misuse of them is.

Cases
Reed Employment v Reed Elsevier 2004 is a trademark dispute between two parties who had both been trading under the same name “Reed” for many years. On one side there was Reed Executive plc and Reed Solutions plc, and on the other side there was Reed Business Information Ltd, Reed Elsevier Ltd and totaljobs.com Ltd.

The dispute was over a conflict with the ‘totaljobs.com’ website which was operated by the Reed Elsevier/Reed Business Information Group, which Reed Executive felt was offering jobs and infringing their trade marks in “Reed”.

The Reed employment group was established from a business set up by Mr. Reed and became a large business with high street shops. As part of this business they placed candidates with employers, and had a trade mark which they had been granted in 1986.

The Reed Elsevier group is a publishing group, which publishes New Scientist and a range of educational journals. The company, also, in some of their publications allowed advertisements from employers looking for employees.

Reed Employment registered the trade mark “Reed” for employment services, but Reed Business Information had paid the search-engine company, Yahoo, for an advertisement banner for its website, ‘totaljobs.com’ to appear when the term “reed” was searched for.

The Judgment made by the Court of Appeal overturned that of the High Court and ruled that the public would not be confused by the advert, thinking that ‘totaljobs.com’ was associated with Reed Employment.

References