OKTaTaByeBye.com
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Dear all,
In one of the worst decisions ever to come out of the WIPO Arbitration and Mediation Center, the domain name of a travel community site (OKTaTaByeBye.com) has been found to be violative of the domain name rights of the Indian conglomerate Tata Sons Ltd. by a single panellist (Mr. Pavan Duggal). The entire judgment is available here: http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-0646.html As per ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP), three elements have to be proved: (i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) you have no rights or legitimate interests in respect of the domain name; and (iii) your domain name has been registered and is being used in bad faith. On (i), the panellist found that OK and ByeBye are generic terms (but that "TaTa", which is an informal English term for "goodbye" is a "strong trademark", and is confusingly similar to "TATA" even when it is sandwiched between OK and ByeBye). On (ii), the panellists holds that the *travel site* has registered the domain name <oktatabyebye.com> to capitalise on the brand value of the TATA trademark, and that it has no legitimate interest in the domain name <oktatabyebye.com>. On (iii), and of particular importance is the part in the judgment where he establishes bad faith on the part of OKTaTaByeBye.com (and it's parent website, MakeMyTrip.com). According to the panellist, the fact that OKTaTaByeBye.com makes money is sufficient to establish _male fide_ intent, and make its registration and usage both "bad faith". How one could establish bad faith (i.e., intending to disrupt the business of another, domain squatting, attempting to get TATA's traffic, etc.) solely on the basis of the fact that OKTaTaByeBye.com makes money is incomprehensible. This has to be one of the worst judgments ever on domain names. It easily beats the Narnia case I had written about earlier ('The narnia.mobi dispute, or "English 101 for WIPO's arbitration panel"': http://tr.im/xMFa). It doesn't just stretch the legal imagination in one or two counts, but all three of the UDRP criteria. MakeMyTrip.com has also registered Cleartrip.net.in, when Cleartrip.com is a competitor. But instead of *that* getting flak, OKTaTaByeBye.com gets handed over to Tata Sons Ltd. a good three years after the site was created. It's a crazy world we're living in. -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 _______________________________________________ commons-law mailing list [hidden email] https://mail.sarai.net/mailman/listinfo/commons-law |
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