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MySpace wins UK domain name that pre-dated its service

Myspace.co.uk was registered 'abusively'

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Social networking company MySpace has won the right to have the domain name myspace.co.uk transferred to it despite the fact that it was registered six years before MySpace was founded.

The fact that the myspace.co.uk address led to a 'parked' page with adverts for social networking sites including MySpace was taken to be evidence of an abusive registration and the domain name was given to MySpace.

The ruling (pdf) was made by independent expert Antony Gold as part of the arbitration process run by the .uk domain registry, Nominet.

Total Web Solutions (TWS) of Stockport had registered myspace.co.uk in 1997 and used the address to offer mini websites to subscribers and email services. It said that though it no longer offers the mini websites it still provides email services to 18 subscribers at the address.

The arbitrator found, though, that it had changed the way that it used the address, subscribing to a system which put keyword-related adverts on to the page. Those ads related to MySpace.com and to social networking, meaning that TWS was profiting unfairly from its association with MySpace.

For that reason, Gold ruled that the domain name should pass to MySpace.

In order to gain control of a domain name under the dispute resolution process a company has to show that it has legitimate rights in the domain name and that the registration of that domain by the other party is an abusive one.

The two sides in the dispute disagreed over whether the registration was abusive. MySpace said that the publishing of adverts that could confuse users was an abuse.

TWS, though, said that a previous ruling backed its practices. It quoted the panel in the case over the name verbatim.co.uk as saying: "the Complainant must satisfy the Panel, as an opener, that the Respondent was aware of the existence of the Complainant or its brand at the date of registration of the Domain Name or at commencement of an objectionable use of the Domain Name."

MySpace argued that TWS only started using the page for advertising once it had been acquired by Rupert Murdoch's News Corporation and therefore come to the attention of the world.

"Section 1 of the Policy defines an abusive registration as a Domain Name which…has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant's rights," it argued.

TWS said that it had used the page for advertising previous to the News Corp acquisition. "The Respondent has not done anything other than to continue the uses or its domain name myspace.co.uk which it commenced in July 2004 or earlier, before it knew of the Complainant and before it acquired any rights in the descriptive name “MySpace” in the UK

Though TWS recognised that the nature of the advertising changed, it said it did not control that, and that it should not be punished for the popularity of MySpace.

"The fact that the adverts shown in 2004 did not include adverts associated with the Complainant proves that the Complainant was not well known and was not known to the Respondent when it started using the site for sponsored pay per click links," said TWS in its submission.

"The choice of the adverts on the site is determined by algorithms linked to the search terms used by the internet community as a whole. Internet users were not searching for the Complainant or related services in 2004 when the pay per click use started - otherwise such adverts would have been automatically selected by the software for display on the Respondent’s page at that date. Analysis of the pay per click ads over a period of around 18 months shows a gradual increasing awareness of the Complainant - to the point where the adverts are now dominated by things related to the Complainant."

"However, this is not a change of use by the Respondent - merely an automated reaction to the algorithm to the increased notoriety of the Complainant. Such ongoing use cannot become abusive merely as a result of the junior user of the mark becoming well known," it said.

Gold said that it was not relevant that TWS did not select specific adverts, that it owned the pages displayed and must be responsible for them and the income it gained from association with MySpace.

"This advantage and the use made of the Domain Name by the Respondent is unfair," he ruled. "The income the Respondent is deriving from its pay per click links at the site of the Domain Name derives in part as a consequence of it being able to trade off the reputation of the Complainant. Accordingly the Domain Name in the hands of the Respondent is an Abusive Registration."

TWS had sought up to £220,000 in return for the domain when contacted by MySpace. Gold accepted that this in itself was not evidence of an abusive registration. He also rejected MySpace's claims that TWS engaged in registering names of a series of trade marks.

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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