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The problem with the decision is that myspace.co.uk predates the well known myspace by several years
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myspace.co.uk DRS 04962
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That is not how the DRS works though, and those are the rules.
Imagine if those rules were applied to land...
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pre dates
If myspace does in fact pre date the complainants rights then the outcome is very sad indeed.....ie. due to lack of understanding the registrant (weakly) took advantage of the complainants rights....
Personally I would offer the Complainant £1000 damages and apply to the courts to get the name back...bloody cheek I say.
Nominet expect you to understand the 3 million word contract and the DTI sit on the PAB and run the Patent Office....AND a judge wrongly assumes that a domain name is capable of being owned
If myspace does in fact pre date the complainants rights then the outcome is very sad indeed.....ie. due to lack of understanding the registrant (weakly) took advantage of the complainants rights....
Personally I would offer the Complainant £1000 damages and apply to the courts to get the name back...bloody cheek I say.
Nominet expect you to understand the 3 million word contract and the DTI sit on the PAB and run the Patent Office....AND a judge wrongly assumes that a domain name is capable of being owned
I thinks it pretty simple - myspace.co.uk was on a parking page making revenue off the back of a trademarked, established website - if it had been on a blog or had unrelated content on a website probably would have been much harder to get it.
i'm just amazed the owners did what they did
- for a few pence...
i'm just amazed the owners did what they did
- for a few pence...
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The Nominet site says it is being appealed.
http://www.nominet.org.uk/disputes/drs/decisions/decisions4001/
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Yet another holiday in Barbados for Uncle Tony :mrgreen:
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Tony Willoughby has chaired 4 out of the last 5 appeals? Do they rotate the experts on appeals or does it go on experience/conflicts of interest?
Also worth a read:
http://www.guardian.co.uk/media/2008/jan/31/myspace.digitalmedia?gusrc=rss&feed=media
fascinating
Beasty this will be a fascinating appeal given the overturn of the wise insurance dispute.
I reckon....appeal...overturn....myspace take court action....myspace.co.uk sold on a out of court settlement....domain name holders will no wiser
good case for you beasty....lucrative
Lee
Beasty this will be a fascinating appeal given the overturn of the wise insurance dispute.
I reckon....appeal...overturn....myspace take court action....myspace.co.uk sold on a out of court settlement....domain name holders will no wiser
good case for you beasty....lucrative
Lee
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Tony Willoughby - as chair - is always invited to chair the Appeal Panel - it is in the rules - DRS Procedure 18(g)(i).
He can say no - hence the one in five he did not sit in on. Given the person holding the office, I would say that it was a good rule.
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This dispute was mentioned on BBC2's Working Lunch today.
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Well, i'm not surprised one bit, it's a high profile domain name case!
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Here is something interesting I found from US Case Law:
http://www.bitlaw.com/source/cases/copyright/altai.html
"Thus, in deciding the limits to which expert opinion may be employed in ascertaining the substantial similarity of computer programs, we cannot disregard the highly complicated and technical subject matter at the heart of these claims. Rather, we recognize the reality that computer programs are likely to be somewhat impenetrable by lay observers--whether they be judges or juries--and, thus, seem to fall outside the category of works contemplated by those who engineered the Arnstein test."
Domains are a very complicated subject, and a hence a lay observer isn't qualified enough to rule or judge that a domain registration is abusive.
I'm sure that this could be brought up in a DRS case or a court case.
Note that at any stage, the DRS can be over-ruled by going to a court case.
OK, I'm charging £5,000 an hour for my services
http://www.bitlaw.com/source/cases/copyright/altai.html
"Thus, in deciding the limits to which expert opinion may be employed in ascertaining the substantial similarity of computer programs, we cannot disregard the highly complicated and technical subject matter at the heart of these claims. Rather, we recognize the reality that computer programs are likely to be somewhat impenetrable by lay observers--whether they be judges or juries--and, thus, seem to fall outside the category of works contemplated by those who engineered the Arnstein test."
Domains are a very complicated subject, and a hence a lay observer isn't qualified enough to rule or judge that a domain registration is abusive.
I'm sure that this could be brought up in a DRS case or a court case.
Note that at any stage, the DRS can be over-ruled by going to a court case.
OK, I'm charging £5,000 an hour for my services
Court System
The courts are clogged up with numerous cases that should be determined by mediation....this has created a poor environment for business disputes that need a judge to rule. The consumer can rely on trading standards to take action but the business has no such mechanism and therefore has to contemplate huge legal bills that are not always returnable in full (if you win).
Case law in respect to domain names is shallow. The rights holders (domain name holders) have relatively small funds and therefore are unlikely to take court action. Too many question are left unanwered with DRS experts 'guessing' the likely law.
Beasty, what happened to that high court referral where Nominet were going to step in....Is a domain name capable of being owned.
Lee
The courts are clogged up with numerous cases that should be determined by mediation....this has created a poor environment for business disputes that need a judge to rule. The consumer can rely on trading standards to take action but the business has no such mechanism and therefore has to contemplate huge legal bills that are not always returnable in full (if you win).
Case law in respect to domain names is shallow. The rights holders (domain name holders) have relatively small funds and therefore are unlikely to take court action. Too many question are left unanwered with DRS experts 'guessing' the likely law.
Beasty, what happened to that high court referral where Nominet were going to step in....Is a domain name capable of being owned.
Lee
I think its mad that they gave the domain to myspace.com. the .co.uk was registered years before myspace was thought of so it cannot be an abusive registration. To register a domain in order to abuse a company or its traffic that company must exist at the time you register it. If i was him a would counter sue for the .com domain saying I had the name first and they are abusing me.
El Reg is reporting that the appeal panel saw things in a very similar light:
"Secondly, the panel considered the crucial (and more broadly relevant) question of how much control TWS had over what appeared on the parking site. It accepted that TWS had not interfered with the content of myspace.co.uk, including when ads relating to social networking began to appear. Rather, they had been generated and updated by Sedo's software, so it was natural that MySpace's rapid rise be reflected.
"The judgement said: "The registration of domain names is still a first-come, first-served system and the panel is reluctant to place any duty on a registrant, who has merely had the good fortune (or maybe ill-fortune) to register a domain in good faith, which subsequently, through no fault of his own, provided he does nothing to actively exploit his position""
"The judgement said: "The registration of domain names is still a first-come, first-served system and the panel is reluctant to place any duty on a registrant, who has merely had the good fortune (or maybe ill-fortune) to register a domain in good faith, which subsequently, through no fault of his own, provided he does nothing to actively exploit his position""
It seems sanity prevailed.
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Interesting decision but registrant beware
Personally I think this decision is merely a direction to a court. Another dodgy area undecided in a court of law.....
The Patent Office has clearly confirmed to me that the only 'rights' in a domain name is the right of contract ownership. No further rights are accrued and that 'links' do not give rise to protection in Trade Mark law........therefore the appeal panel are incorrect in respect to the last three words below:-
To date experts and Appeal panels have reasonably consistently taken the view that if a registrant acquires a domain name in advance of the coming into existence of the complainant’s rights, the registrant is entitled in principle to hold onto the domain name and to use it,
Hooray....at last a decision whereby the expert accepts that a transfer is an unlwaful request where the complainant cannot claim unequivocal rights to the domain name:-
Panel are by no means certain how a court would react to a case of this kind. Most of the domain name authorities to date have involved domain names which were registered to take advantage of the claimant’s rights. If infringement were found, the court might content itself with suitably worded injunction rather than transfer of the Domain Name.
The Appeal Panel has assumed that domainer has gained the following right of use 'to use an automation system that will change depending on the advertisers that wish to be linked to the site name'.....such a decision contradicts that of the Patent Office
Lee
Personally I think this decision is merely a direction to a court. Another dodgy area undecided in a court of law.....
The Patent Office has clearly confirmed to me that the only 'rights' in a domain name is the right of contract ownership. No further rights are accrued and that 'links' do not give rise to protection in Trade Mark law........therefore the appeal panel are incorrect in respect to the last three words below:-
To date experts and Appeal panels have reasonably consistently taken the view that if a registrant acquires a domain name in advance of the coming into existence of the complainant’s rights, the registrant is entitled in principle to hold onto the domain name and to use it,
Hooray....at last a decision whereby the expert accepts that a transfer is an unlwaful request where the complainant cannot claim unequivocal rights to the domain name:-
Panel are by no means certain how a court would react to a case of this kind. Most of the domain name authorities to date have involved domain names which were registered to take advantage of the claimant’s rights. If infringement were found, the court might content itself with suitably worded injunction rather than transfer of the Domain Name.
The Appeal Panel has assumed that domainer has gained the following right of use 'to use an automation system that will change depending on the advertisers that wish to be linked to the site name'.....such a decision contradicts that of the Patent Office
Lee
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