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Apple threatens iTunes.co.uk owner

Something rotten in the digital music world

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Apple has accused the owner of iTunes.co.uk of being a cybersquatter, and taken him to UK registry Nominet demanding to be given the domain.

Unfortunately, the owner happens to be one Benjamin Cohen, the "dotcom millionaire" of lore, whose father is a solicitor, and Apple doesn't have a leg to stand on.

As a press release put out by Cohen makes clear, he registered the domain "itunes.co.uk" on 7 November 2000, and two days later made use of it by forwarding it to a music search engine service at his CyberBritain site.

Apple, on the other hand, only had trademark for "iTunes" published in the Trade Marks Journal on 6 December 2000. It was granted a limited trademark that did not cover music products on 23 March 2001, and eventually went live with its iTunes offering in June this year - four years after Ben Cohen first registered iTunes.co.uk. Cohen claims he had no idea that Apple was planning to build an iTunes service, and that he has been using it legitimately all that time.

Nevertheless, Apple has been dogged in its pursuit of the domain. Since November this year, CyberBritain has received between 30 and 40 letters from Apple's solicitors over the domain and even offered a small sum for it (a common domain ploy which seeks to prove some kind of profitable intent by the owner). Finally, it has taken the issue to Nominet, where it will be put through the organisation's domain resolution process.

Fortunately for Cohen, Apple's approach is more bark than bite. Apple would have a hard time winning such a case through ICANN's Uniform Dispute Resolution Process (UDRP), which is notoriously friendly towards big companies. However, a .co.uk domain is the jurisdiction of Nominet, and the UK registry has taken a far more commonsense approach to domain disputes.

Nevertheless, Cohen told us that unless his father, a solicitor, had explained the law and dispute system, he would probably have caved into pressure from Apple. He remains "reasonably confident" that CyberBritain will win out, however he points out that under Nominet's recently changed rules, a company need not be granted a trademark before a domain is registered to seize control of a domain.

He is referring to one small part of Nominet's rules which states that if "the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant", then it could be taken to be an abusive registration.

However, in his defence, Cohen can argue that he has "been commonly known by the name or legitimately connected with a mark which is identical or similar to the Domain Name" and that he has "made... fair use of the Domain Name".

All in all, the domain was registered before iTunes, as Apple knows it, existed. How it can then expect to extend its rights back in time is something an IP lawyer will have to try to argue. As such, Apple can waste £750 taking the case through Nominet or it can do what it should have done as soon as it realised Mr Cohen was not going to fold under pressure and offer a decent price for something that isn't its property.

Apple has so far refused to comment on the case. Although it is currently being investigated by the authorities for price fixing with its iTunes service, so it probably has its hands full. ®

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