“We were there first — by 10 years. Now I see a potential re-branding that could take years to complete,” says Universal Tube’s owner Ralph Girkins. “I’m not the kind of person who looks for lawsuits, but my business is being threatened by this situation.”
We are the kind of people who do look for lawsuits, of course, and this one is more than a little adorable. And perhaps more than a little meritorious: U-Tube v. YouTube. Will it, best-case-scenario, do any harm to YouTube? Only in the checkbook department. No-o-o-o-o problem. No-o-o-o-o problem.
Yes, nothing like confrontation with a length of pipe to make you want to do what you can to make a problem “go away.” Via Instapundit.
I don’t see how there’s any merit to this case. Just because one site has an address that’s similar to another, and possible for people to mistake, doesn’t mean that any actual act of infringement has taken place, in the absence of any intent on the part of one of the users to hijack customers from the other. Since, in this case, both companies have a sensible reason for having adopted the addresses they did, without any intent by either party to imitate or steal traffic from the other, there would seem to be no foul, even if there is (accidental) harm. Could I sue somebody whose phone number or street address happens to be similar to mine if I get unwanted phone calls or people knocking on my door as a result? I wouldn’t think so, unless the other person actually intentionally encouraged such unwanted traffic for the purpose of harrassing me.
If the “Utube” company had any sense, they’d act to monetize the unwanted traffic with Google ads or something.
Dan, there doesn’t have to be intent for a trademark to be infringed. The standard is not the same as in cybersquatting proceedings, where there must be at least a minimal standard of bad faith shown. Now, I don’t know what their damages theory is but, regrettably, that is fudged in trademark cases all day long.
It still seems dubious. Just what trademark is being infringed? “Utube.com” is not the name of the company (Universal Tube) or its products, just its address. The distinction between names and addresses has been horribly muddied up in the dot-com era, but that particular company is an old-fashioned-style one that actually manufactures things in the real world, and just uses its Internet site as a point of contact and information, so their address isn’t synonymous with their company as “Amazon.com” is for that company; it’s just a location where they can be found, like their street address and phone number, which probably aren’t trademarked either. Somebody else with a similar address (like 124 Main Street when they’re at 123 Main Street) isn’t infringing on them even if some people end up going there by mistake. Since YouTube is in a totally different line of business, infringement would be very unlikely to be found unless the original trademark was very strong and distinctive, something that might not even be true for their actual name (Universal Tube, which is similar to many other trademarked company names such as Universal Studios, without conflict or infringement), let alone the abbreviated form of it in their domain name.
Anyway, this is a very weird case of alleged reverse typosquatting; rather than the junior user being accused of getting a similar name to an existing site to “steal” traffic, they’re actually being accused of *sending* traffic to the senior user’s site. Is this actually a “damage”? Many people go to great lengths to try to attract such traffic, and to profit from it.
The closest case I can think of is the one where somebody who had been sexually abused by an Internet predator as a teenage girl wrote a book about her experience, and her publisher named the book “katie.com”, even though neither the author nor the publisher actually owned that domain; it belonged to a different woman named Katie, who disliked the unwanted attention and traffic the book’s publication caused. She threatened to sue, I believe, but never actually did, and eventually the publisher gave in and renamed the book. That would have been a much stronger case than the UTube / YouTube one, since it’s one where somebody explicitly adopted a book name referring to a domain name that somebody else owned (not just a typosquat of it). Still, I’m not sure there’s a legal theory where she could have won.
When the ’80s song “867-5309 (Jenny)” by Tommy Tutone came out, it caused lots of (mostly unwanted) phone calls to be made to those who happened to have that number (in various area codes). For many of them, this was an annoying imposition; perhaps to some it was an opportunity to profit (like by using the number to run some sort of business) or a chance to have fun by playing phone pranks on the callers… but I don’t know of anybody suing over it.