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YouTube - uTube showdown stays alive in federal court

A website by any other name

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Silicon Justice What's in a name, right?

For the Universal Tube & Rollform Equipment Corporation, operator of uTube.com, its domain name means cash - and with a federal court's recent refusal to dismiss the company's suit against YouTube, the possibility of even more cash in the future.

The company has operated uTube.com as a means to sell used pipe and tube mills and rollform machinery since 1996. After YouTube's launch in 2005, the sleepy little Ohio website went from around 1,500 visitors a month to roughly 70,000 per day. The company alleges that this caused its web host's servers to crash, which disrupted its business and sullied its reputation. It also claims that bandwidth overages bumped its hosting fees from $100 a month to $2,500.

In true Midwestern fashion, the company made the best of a bad situation by adding a ringtone search engine to the site, as well as links to dating, insurance and gambling sites. These new features now pull in $1,000 a day or more, according to one report.

In addition to capitalizing on the name confusion by hawking Internet crap, uTube has also sued YouTube in federal court. The company has asked for monetary damages, as well as injunctions to stop YouTube's operation and for the court to transfer the YouTube.com domain to uTube.

The judge hearing the case just dismissed a number of uTube's complaints, but also refused to grant YouTube's motion to dismiss the entire suit. The judge also gave uTube permission to amend its complaint to see if it can revive any of the dismissed causes of action.

Specifically, the court said that uTube didn't have a case for trespass to chattels, since some physical contact with an object must be involved for such a claim to go forward. Domain names aren't physical objects, the court argued, and uTube used a third-party hosting service, so it couldn't claim ownership in the computer equipment that crashed as a result of the influx of visitors.

Moreover, the court continued, the visitors to the site were the ones that "violated" the site, so YouTube itself wouldn't be liable even if there had been a trespass.

The court also quickly dismissed one of uTube's nuisance allegations, since nuisance claims must involve land, and uTube had not shown that a domain name, website, or host server somehow constitute real property in any way.

The decision still leaves uTube's claims for unfair competition, state trademark dilution, and deceptive trade practices in play, plus any of the dismissed claims that uTube can resurrect in an amended complaint.

This was only the first of many hurdles for uTube, however, and it's unlikely to succeed in the end, especially on its injunction requests.

After all, it seems laughable that a court would shut down YouTube or strip it of its domain name, since the relative detriment to YouTube would greatly outweigh the benefit to uTube.

Oh, wait - YouTube still doesn't have a solid revenue model, does it? That could change things a bit . . .

Maybe they should try selling ringtones. ®

Kevin Fayle is an attorney, web editor and writer in San Francisco. He keeps a close eye on IP and International Law issues.

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