Several of the IPKat's friends have been telling him about the decision of a Nominet UK Dispute Resolution Service appeals panel (Tony Willoughby, Claire Milne and Sallie Spilsbury), which ruled that the myspace.co.uk domain -- which was registered by Total Web Solutions before the "real" MySpace came into existence -- did not after all have to be turned over to MySpace Inc, owners of the hugely popular myspace.com.
Total Web Solutions registered myspace.co.uk as long ago as August 1997 in order to provide its clients with a cheap and easy homepage and email address (18 of its customers apparently still use @myspace.co.uk email addresses). On or before July 2004 myspace.co.uk -- which was no longer in demand for its original purpose -- was "parked" with Sedo, a company that targets advertising links on unused domains. In 2005, following the growing popularity of MySpace, the Sedo algorithm began serving Total Web Solutions' domain with advertisements for services such as "MySpace Friend Adder". The appeal panel dismissed the assertion by Total Web Solutions that the complaint should never have got to first base on the ground that the term 'myspace' was entirely descriptive of its business. However, the panel did not consider the earlier registration to be abusive. The panel added:
"To date experts and Appeal panels have reasonably consistently taken the view that if a registrant acqUires a domain name in advance of the coming into existence of the complainant's rights, the registrant is entitled in principle to hold onto the domain name and to use it, notwithstanding that confusion of the 'initial interest' variety may be inevitable. Similarly, experts and Appeal panels have concluded that in such circumstances it is not of itself abusive for the registrant to demand a high price from the complainant for transfer of the domain name in recognition of its enhanced value".The IPKat says, if Total Web Solutions hasn't done anything wrong, the mere fact that it has gained substantially through no effort of its own isn't actionable in a court of law, surely? In good old English passing-off terms, there's nothing wrong with mere confusion -- so long as it's not deliberately induced.
Full text of the decision (16 pages) available from the Bell Dening website here
What The Register says here
My Cat here