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The domain name AirFranceSucks.com will be transferred to Air France. But the airline's victory at arbitration was not without controversy: panellists disagreed about what the word 'sucks' really means to internet users.

The name was registered by Florida-based Virtual Dates Inc. in 1999. It was only in February 2005 that Air France took a claim before the World Intellectual Property Organisation (WIPO), alleging cybersquatting. The decision was made on 24th May and published today.

For most of the past six years, Virtual Dates pointed the domain name at a page of ePinions.com, an ad-supported site that rates and invites reader comments on everything from movies and barbecues to office supplies and zoos.

Virtual Dates said AirFranceSucks.com was a freedom of expression site for the registration of complaints or recommendations about the airline. Air France said it was just trying to cash-in on its trade mark: this was a commercial entity, not the gripe site of an aggrieved customer.

Two of the three WIPO panellists reckoned that a domain name that adds 'sucks' to a trade mark will generally be confusingly similar to that trade mark. Presiding panellist Knud Wallberg wrote:

“The incorporation of a well known trade mark in its entirety as the first and dominant part of a domain name is confusingly similar to this trade mark regardless of whether the additional elements are pejorative as in this case or of a more neutral kind such as airfrancetickets”.

Co-panellist Christian-André Le Stanc agreed: international customers might not appreciate the pejorative nature of the term 'sucks', which would leave users confused.

The third panellist, Jeffrey M Samuels, disagreed.

Samuels, an intellectual property professor at Akron University, Ohio, accepted that not all internet users will be familiar with the pejorative nature of the term 'sucks.' But he added: "it is likely that a substantial percentage of potential customers of Air France are familiar with the English language and, thus, would be aware of the pejorative nature of 'sucks.'"

A confusingly similar trade mark is not enough of itself to force a transfer: it must also be shown that the registrant has no rights or legitimate interest in the name and that its registration and use were in bad faith.

But if a panel is convinced that a domain name is not confusingly similar to a trade mark, the rest of a cybersquatting claim will collapse.

In Samuels' opinion, the domain name was not confusingly similar to Air France’s trade mark, because it did not look or sound alike nor convey the same commercial impression.

Decisions on 'sucks' sites have gone both ways trade mark owners in the past. But the current panel's majority view on their similarity to a trade mark is supported by a WIPO report on trends in domain name dispute decisions, published in March. On 'sucks' sites, it agreed that non-fluent English speakers would fail to recognise the negative connotations of the word.

Copyright © 2005, OUT-LAW.com

See: The WIPO ruling

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US Appeals Court clarifies protest website law
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