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Critic must surrender domain name over trademark issues

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The Nominet expert said that if the case were being heard under the uniform dispute resolution policy (UDRP) operated in relation to .com sites, Tyler would probably have won because that policy says that domain names should be 'confusingly similar' to trade marks or other protected terms. The Nominet policy, though, says they should just be 'similar'. She said that there could be little confusion that 'ihateryanair.co.uk' was a site operated by Ryanair.

"A panel deciding this case under the UDRP may well have found for the Respondent on the basis that the Domain Name is not 'confusingly similar'," said the ruling. "But the Policy deliberately sets a different test and there is no requirement for confusion."

She said that the fact that the website criticised Ryanair is not a reason to take the domain name from its operator.

"The Expert accepts that the critical website content could well disrupt the Complainant’s business by encouraging those accessing the website to use a different airline. However, mere disruption is not all that is required under the Policy – such disruption has to be unfair. In the Expert’s opinion in a free and open society internet users should generally be able to post comments on their recent experiences or on current events, as long as such postings do not fall foul of the law," she said. "Any resulting disruption as a result of criticism appearing on a website (or in any other media for that matter) is merely something that businesses have to deal with on a daily basis. It cannot be said to be unfair."

The site contained links to other airlines under a 'sites we like' heading. This did not break Nominet's rules because Tyler made no money from hosting those links, said Seager. "Third party airlines may benefit from the links, but no evidence has been put before the Expert to suggest that the Respondent himself does. Any resulting disruption to the Complainant’s business thus cannot be said to be unfair," she said.

When Tyler earned money from affiliate links, though, the situation was quite different, ruled Seager.

"Whilst the links to other airlines may be seen as genuine recommendations as part of an ongoing discussion about air travel, commercial links cannot. In the Expert's opinion commercial links have no place on a criticism website, and any detriment [Ryanair] may suffer as a result of use of the Domain Name to attract internet users to click on such links is unfair," she said.

"In the Expert's mind there is undoubtedly a link between the [Tyler's] financial advantage and [his] use of [Ryanair's] trade mark in the Domain Name," she said. "[Tyler] only earned money because of the traffic to the website, and such traffic must have been influenced by the Domain Name."

"It cannot be fair to take advantage of the reputation attached to another party’s trade mark in this manner, whether it be good or bad, and in the Expert’s opinion [Tyler] has therefore effectively taken unfair advantage of [Ryanair's] Rights in order to gain a financial advantage," said Seager.

The domain name should be handed to Ryanair, Seager ruled.

A message on the ihateryanair.org website said that it had lost on a "small technicality".

"Never fear, we have already moved the site to its new home on www.ihateryanair.org and will continue to provide you with all the latest on how this pathetic excuse for an airline will attempt to extract cash from you through sneaky hidden charges, fly you to places that are not where you actually want to go and leave you stranded when the cr*p hits the fan," it said.

Copyright © 2010, OUT-LAW.com

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

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