Both the first and the appeal decisions held that the vast majority of MySpace’s claims had no merit – not least because the UK ISP had legitimately registered the name some 6 years before the social networking site had been formed and the Stockport based ISP had been using it to host numerous websites for clients.
Instead argument centred on the most recent use of the domain as a Pay Per Click website, hosting adverts for other websites that users could link to by clicking on them. . . . [The panel] held there was “insufficient material” to uphold MySpace Inc.’s allegations.
Of more general interest was the second main point covered – namely whether parking use that started as legitimate could become abusive when the nature of the adverts hosted changed due to the sudden fame of a third party. In this case the adverts changed to reflect the fame of MySpace.com, but that had happened automatically as a result of the algorithms used by parking company Sedo. MySpace Inc. claimed TWS should have exercised control over the content of the adverts. No, said TWS – that is not a change of use.
The appeal panel said they were “reluctant to place any duty on a registrant, who has merely had the good fortune (or maybe ill fortune) to register a name in good faith…” and as long as they do nothing new to exploit the situation. That was the case here and so the domain is retained by TWS. “We knew we had done nothing wrong.” said TWS MD Paul Fallon “We are delighted that all three members of the Appeal Panel agreed with us.”
In short, under the Dispute Resolution Service Policy utilized by Nominet, the registry for UK domain names, the “bad faith” element in a domain name dispute is considered from the time of registration only. If a “lucky” registrant ends up with a windfall, without actively exploiting the registration in some new way, this is not objectionable from a purely domain-name point of view. From the decision:
[T]he registration of domain names is still a first-come first-served system and the Panel is reluctant to place any duty on a registrant, who has merely had the good fortune (or maybe ill fortune) to register a name in good faith, which subsequently, through no fault of his own, acquires notoriety, provided that he does nothing actively to exploit his position.
This certainly is of great general interest, considering the bullying business model that MySpace followed in this dispute. The full decision is here. Powdered wig tip and congratulations to winning counsel, Jim Davies!
Originally posted 2008-05-05 18:06:45. Republished by Blog Post Promoter