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This is how Easy Group enforces its domain name ‘rights’

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Following our recent coverage and conversations with top Easy Group staff regarding the company's approach to other domains featuring the word "easy", we have been sent a copy of the letter sent out by Easy Group's lawyers Denton Wilde Sapte.

The man in receipt of the letter was one Peter Savage, who registered www.easybuyacar.com two months after the EasyRentacar site started trading. He is currently bound by a confidentiality contract with Easy Group but was happy to discuss events prior to its signing.

The two-page letter mostly concerns itself with the Easy Group itself, outlining the various businesses it runs, when it started them, the amount of money it has spent on advertising etc etc. It then continues: "It seems to us that the use by you of these domain names can be for no other reason but to allow you to trade off the reputation and goodwill that our client has built up in the 'easy' and in particular the 'easyRentacar' marks."

The domain does use the "easy" prefix and is obviously closely related to Easy Group's trademark but concerns itself with selling rather than renting out cars. Following further correspondence, Mr Savage hired some specialist lawyers who advised that Easy Group did not have a case and he should go to court.

Easy Group's argument is that he is obviously planning to trade on its good name and so it has a right to the domain. This point could be easily conceded but does Easy Group have a legal right to ownership of the domain?

The group's main legal argument was given in the letter: "We refer you to the One in a Million case in which the Court of Appeal held that the registration of a domain name in circumstances such as this amounts to the creation of an instrument of fraud, giving rise to liability in passing off."

However, the One in a Million case does not constitute much of an attack in the case of Easy Groups's claims. In the case, a company which made a business out of registering domain names exactly identical to company names - which it then offered to sell back to the company at a high price - was found guilty of infringing trademarks.

Examples were: Ladbrokes.com, Sainsbury.com, Sainsburys.com; Marksandspencer.com, bt.org and virgin.org.

The judge in the case made a point of saying: "The mere creation of an 'instrument of deception', without either using it for deception or putting it into the hands of someone else to do so, is not passing-off." Thus, considering that many of the "easy" domains names that the Easy Group is going after are not only not identical, and in many cases not even similar to the trademarks owned by Easy Group, it seems likely that a case based purely on this precedent is at best arguable.

And that is without bearing in mind that the One in a Million defendants made a business out of registering such domains with the sole purpose of selling them to trademark owners.

You can read the full rundown on the One in a Million case here.

This leaves Easy Group open to accusations of using its financial muscle to frighten small-time domain owners. This is precisely what Mr Savage alleges: "I was supposed to be in court at the start of next year but my lawyers told me I risked losing £60,000+. I just can't risk that. So I've decided to settle and hand it over and they get to build a business out of my domain."

He also claimed he had paid for a site to be built, had drawn up a business plan and had found backing for the idea. He was unable to talk about the settlement, but did say that it was "not a decent sum".

Informed of what Easy Group head Stelios Haji-Iannous told us yesterday, he retorted: "This is a David and Goliath scenario. They are using bully-boy tactics and people are handing over domains that they have a right to because they can't afford not to."

We raised this point with Easy Group's director of corporate affairs James Rothnie. "We don't set ourselves up as the judge and jury, we merely wish to protect our intellectual property."

"If we didn't have a case, then we wouldn't pursue it."

But what of the high costs associated with anyone even going to court. These are prohibitive. "Well why they don't they go to a no-win no-fee lawyer? If lawyers are so sure we don't have a case, why don't they take it on and take the costs when they win?," he Rothnie said.

In response to Easy Group's confident belief that nearly all new domains beginning with "easy" are somehow its property, Mr Rothnie had this to say: "What you have to ask is why would anyone want to set up an 'easy' anything anymore? If they wish to set up a reputable business, surely they would want to avoid the word 'easy' - you know, that group that does the low-cost plans and cars and Internet access?"

Initially, the Easy Group went through ICANN's resolution body WIPO to solve domain disputes but following a string of negative judgements it has decided to rely on taking legal action, or the threat of legal action, using the argument of 'passing off'.

It is crystal clear to Easy Group that any new "easy" Web site from this point on is hoping to jump on the back of their work. But "Easy" is an extremely common word and other people have a perfect right to use it.

The use of powerful lawyers and High Court threats to impose this may seem a legitimate response to Easy Group but many will disagree and say it is little more than corporate bullying. So far, despite having taken possession of a large number of domain names, we are unaware of any case that has successfully made it through court. Even the case involving Richard Lowden and his Easyprotest.com site was finally settled out of court.

If nothing else, this failure for a case to be completed raises doubts over Easy Group's promises that it is doing nothing more that protecting its intellectual copyright. ®

Related Link

Judgment in the "One in a Million" case.

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