Domain names and pirates

19 November 2008

Domain names and pirates

Everyone knows about Trade Marks. You have a name, you register a Trade Mark for that name. And then you have a piece of paper that you can wave around to warn people off using your Trade Mark whenever someone else uses your name without your permission.

Simple, effective, legally a strong position to have and everyone knows where they stand with Trade Marks. If you have never registered your name, you could always consider pursuing them with passing off. Passing off is a legal ground in England and Wales that protects others from exploiting your reputation and pretending to be you. It does however have 3 constituent elements - a reputation, confusion and damage. What do you do if someone simply comes along and buys a website address or 'domain name' using your name and sits on it?

When the domain name server system was established it was never envisaged (what carefree days) that domain names would have any value, financial or otherwise. However, the internet became more commercial and its size increased exponentially, and companies began to recognise the value of internet domain names. Inevitably, high prices and legal actions followed and companies began suing each other for the right to use particular domain names. Interestingly it is still incredibly cheap to actually purchase domain names, even though the name servers grade values nowadays.

This is a growing area of the law and commerce as the world wide web continues its inexorable rise in the world consciousness. A website address is your brand in many cases (moneysupermarket.com^(RTM) anyone?) and can be considered a valuable piece of intellectual property - remember those urban myths about sex.com and the amount it sold for?

There is no definitive directory of business domain names. Internet users wishing to locate a particular business or organisation must either guess its domain name, or search for it using one of the available search engines.

The practice of buying up website addresses that have the same or similar names to Trade Marks, or other desirable addresses, has a notable history and became known in the Nineties as 'cyber squatting'. Some innocent registrations may also get unfairly, if profitably, caught up with this tag - a little digital imaging company owned altavista.com and netted a cool $3million dollars for their domain name. On the reverse, there is reverse hijacking where the big boys prevent people even in some cases using their own names as email addresses. With all this piracy, where does lawdit fit in?

More of which next time.

Tim Mount is a trainee solicitor and can be contacted at tim.mount@lawdit.co.uk