website design by
nick johnston
copyright © .
All rights reserved.
 |
|
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domain name will be withdrawn unless the renewal fee has been paid.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
|
|