Microsoft in reasonable Net action shocker!
We’ll have to take that domain off you, we’re afraid
It’s not something you often hear but Microsoft seems to be taking an entirely reasonable approach to the Internet when it comes to domain names.
Somewhat ironically this has only become apparent after the Beast of Redmond’s lawyers send a letter to the Mike Chatha - owner of xbox.ws and xbox.us.com - demanding he agree to hand over the domains within four days or face the consequences.
Mike contacted us asking if there was any way he could beat off the Beast. Sadly, no, Mike, all is lost. Even though the .ws suffix relates to Western Samoa, it is also the case that the country has signed up to ICANN’s flawed UDRP domain resolution rules. That means: no chance.
So where does the reasonableness come in? Well, Microsoft only acted when Mike rather foolishly advertised the fact he wanted to sell them - for £1,795 and £795 respectively. MS’ letter points out that it was this “attempt to profit from the sale of domain name incorporating the Xbox trademark” that forced its hand.
It explains that it is obligated to control use of its trademarks. Which is entirely true. Under trademark law, if Microsoft could be shown to have been aware that its trademark was being used for profitable means and it did nothing to stop it, then it can be argued that Microsoft has forfeited its rights in respect to the name.
As such - and Mike won’t like this - it had little choice but to threaten to batter him to a bloody pulp. What is interesting though is that MS left Mike run his site - which was about the Xbox, promoted Xbox products that didn’t come from Microsoft and used Xbox colours - for two-and-a-half years before contacting him.
Why is that interesting? Because Microsoft could have taken the domains off him at any point it fancied thanks to the daft UDRP rules and corporate-friendly arbitrator WIPO (the offer to sell the names also makes the decision a technicality as it breaks the so-called “good faith” defence for keeping a domain). That it chose not to displays a clear corporate policy of leaving non-profit sites alone even if they infringe the company’s trademarks. Which is surprisingly tolerant.
Of course the threat of a $100,000 fine on each domain under the US’ Anti-Cybersquatting Consumer Protection Act is nonsense. Just how a UK citizen could be compelled to pay far more money than he possesses under a US law is something that would require a fair bit of imagination. But then the threat of huge sums of money from one of the world’s largest companies does tend to have a powerful effect.
And while the letter states that Microsoft “prefers to resolve matters such as this informally”, the four days that Mike is given to respond are clearly unreasonable.
But if Mike wants to keep the domains what he needs to do is contact the lawyers, apologise for offering to sell the domains and promise never to attempt to make money from them again. If he’s lucky they’ll let him have them. Otherwise he might as well hand them over now and save himself the trouble.
If this makes him so mad that he trashes his Xbox with his foot and forehead, he may want to consider buying the Xbox name from a country that allows outside citizens to register domains but has refused to sign up to the UDRP, therefore leaving Microsoft powerless to act. But then we couldn’t name those countries or condone such an action. Not yet anyway. ®
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