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Viacom has lost another domain dispute. But this time it wasn’t trying to steal a generic domain name; it was trying to shut down a web site containing copyrighted material.
Viacom filed for arbitration under UDRP for the domain name StansDad.com. Stan and his dad are popular characters in the company’s animated South Park television show.
But there’s no trademark here. Viacom tried to use UDRP to go after a copyright infringer. Here’s what the panel said:
The UDRP was designed to deal with the problem of cybersquatting. This problem arises when a party registers a domain name which consists of or contains the trademark of another, or some form confusingly similar thereto, which would lead a user to believe that if the user were to enter the domain name in a browser, the user would be taken to a web site which was sponsored by or affiliated with the trademark owner. The UDRP was designed to prevent such a registrant from profiting from the Internet users confusion. While Complainant may well have legitimate concerns regarding the conduct of Respondent and the content displayed on Respondent’s web site, the UDRP is not the vehicle to address such concerns. Nothing could be clearer than an examination of the first prong of the three part burden of proof which must be met by a complainant.
The “first prong” is that the domain name is confusingly similar to the complainant’s trademark. But the trademark Viacom asserted was South Park, not Stan’s Dad.
The domain name at issue is clearly not confusingly similar to any trademarks or service marks asserted by Complainant. stansdad.com is not remotely similar to SOUTH PARK. An Internet user who enters “www.stansdad.com” in his / her browser may have a myriad of destinations in his or her mind that are totally unrelated to Complainant’s television show. The domain name at issue does not incorporate Complainant’s mark or a semblance of Complainant’s SOUTH PARK mark. The Panel does not exclude the possibility of Complainant perhaps being able to succeed in some future proceeding if it was for example able to show rights in a mark such as STAN’S DAD. It has not done so here.
Complainant’s principle concerns are not it seems with the particular domain name, but are with what is occurring on Respondent’s web site. While the Panel acknowledges that Complainant’s concerns may be legitimate and perhaps entitled to legal redress, the UDRP is not the vehicle to provide such redress. The issues of possible copyright infringement and other possible concerns are far beyond that which the simple procedure established in the UDRP was designed to redress.
Success Bank, an Iowa bank, should stick to the banking business.
The company failed at arbitration to get the domain name SuccessBank.com from its owner, who registered the domain name in 2003. The bank changed its name to Success Bank only in 2007, at which point it filed a trademark for the term. The trademark was granted in 2008. Success Bank uses the inferior domain SuccessBank.Net.
If you register a domain before another company obtains a trademark, it is impossible for the trademark holder to prove that the domain was “registered and used in bad faith”, as required under UDRP.
In his typical wit, the respondent’s attorney John Berryhill noted to the arbitration panel:
The Complainant’s proposition here is that the Respondent has such powerful psychic ability as to be able to predict, in October 2003, that the Davis County Savings Bank of Iowa would change its name to “Success Bank” in December 2007. The Respondent denies such psychic powers.
The panel found that the domain wasn’t registered and used in bad faith, and that Success Bank didn’t establish a prima facie case that the respondent lacked rights or legitimate interests in the domain name.
For some reason the panel didn’t address the issue of reverse domain name hijacking. But its decision does note that Success Bank’s argument in the case was extreme:
The Complainant relies on the argument that once a complainant shows good title in a mark, the burden shifts to Respondent to defend use and bad faith. Complainant seeks to stretch that argument to the extreme. While Complainant has some rights in the SUCCESS BANK mark, those rights are years junior to the rights of Respondent due to registration of the domain. To hold for Complainant would be to say that one could peruse the lightly used or parked domains, initiate a trademark registration application years after the a disputed domain name was registered and then claim UDRP rights in the domain under the first element of the UDRP.
[Update: after winning the case, the domain owner has voluntarily given the domain to Beck and reopened the site elsewhere.] Conservative TV personality Glenn Beck has lost his dispute over the domain name glennbeckrapedandmurderedayounggirlin1990.com. (See Domain Owner Responds to Glenn Beck.)
In order to win the domain name, Beck had to prove three things to an arbitrator:
1. The domain name was confusingly similar to Beck’s mark, i.e. Glenn Beck
2. The domain’s registrant did not have rights or legitimate interests in the domain name
3. The domain was registered and used in bad faith
The arbitrator for the case, Frederick M. Abbott, decided that the domain name was confusingly similar to the Glenn Beck mark, although he explained in detail how some panelists may think otherwise. But it didn’t ultimately matter, as Abbott found that the registrant did have legitimate interests in the domain:
Respondent appears to the Panel to be engaged in a parody of the style or methodology that Respondent appears genuinely to believe is employed by Complainant in the provision of political commentary, and for that reason Respondent can be said to be making a political statement. This constitutes a legitimate non-commercial use of Complainant’s mark under the Policy.
Because the second element of the UDRP wasn’t met, Abbott decided to not issue a ruling on the third element. But he also noted that it is unlikely the complainant would have prevailed on the issue of registration in bad faith anyway.
Abbott noted that whether or not the web site is defamatory could be an issue for the courts.
Domain name ownership has changed dramatically over the past ten years for a variety of reasons. Doing business on the web has become an important, if not essential channel for many businesses around the world, and websites are identified with their owners in large part due to the domain name used by the owner. As a result, obtaining a domain name that is closely associated with a business is very important for most ventures.
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