Cybersquatting OK for 'freedom of speech' sites
Published: 06 Dec 2007 10:46 GMT
Registering a domain name similar to that of another organisation and then using the URL to protest against its namesake's products or services is acceptable, according to a decision made by an external panel appointed by the World Intellectual Property Organization.
Erik Wilbers, acting director of the Arbitration and Mediation Center at the World Intellectual Property Organization (WIPO), believes that companies will increasingly lose domain disputes against individuals or groups that use them as a platform for critical speech against a business.
These "freedom of speech" domain names — where a person has registered a company's name as a domain name to voice negative opinions about that company — are controversial, because the company's branding, and therefore intellectual property, is often used when choosing the domain name.
Disputes about ownership of domain names are handled by a WIPO service. Most cases are straightforward, with a company's domain name being registered for financial gain — often called "cybersquatting". In 83.72 percent of cases, the company making the case wins the decision, and the domain name is transferred over to them.
When deciding on freedom-of-speech domain names, however, Wilbers said that the panel's decision on the cases has swung both ways. He believes that the trend will increasingly be to allow these sites to exist, pointing to a case decided last month.
The dispute was over a website, chelwest.com, operated by Frank Redmond, which expresses inflammatory opinions about a public hospital — Chelsea and Westminster Hospital in London. Redmond was not happy with the hospital's treatment of his daughter.
The hospital claimed that the site's name is too similar to its own site, and that "chelwest" is part of the hospital's branding and, therefore, its intellectual property.
The hospital's website is chelwest.nhs.uk.
The single-person panel ruled in favour of Redmond. The reasons were: Redmond is not using the site for any commercial gain and it is immediately apparent to internet users who visit the site that it is not the official site; Redmond, according to the panel, is simply criticising the hospital with opinions which he believes to be true; and it is not obvious that "chelwest" is branding of the hospital.
Wilbers said that the case was interesting because the panellist deciding the case had tried to draw up a set of criteria that could be used to judge whether a freedom-of-speech site should be permissible or not.
Wilbers doubted whether these criteria will hold, as the freedom-of-speech issue in domain names is still "in a state of flux".
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A similar dispute was held in 2003 over an Australian website. Tourism Tasmania objected to Gordon James Craven registering the domain name discover-tasmania.com.au, because it makes use of Tourism Tasmania's logo "Discover Tasmania".
According to the case document, when the complaint was made, the domain name hosted a website which "in the context of tourism, depicted, described and criticised forestry practices in Tasmania said to be permitted and encouraged [by Tourism Tasmania]".
The panel ruled against Tourism Tasmania.
"There is a certain inevitability" that more and more of the sites will be allowed, according to Wilbers. Companies will have to go along with it, he said, because there are too many sites and alternate sub-domains to police their branding effectively.
"Whether they like it or not, the internet is being used for such purposes," Wilbers said.
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