Space Ramblings

To CyberSquat or Not CyberSquat

As the “Simpsons Movie” rolls out on silver screens across the United States and Europe, word comes that its maker, Twentieth Century Fox Film Corporation, has won the rights to the domain name “thesimpsonsmovie.com” from a stand-up comedian who failed to strike the international arbitrator’s sense of humour. On 22 July, an arbitrator from the World Intellectual Property Organization (WIPO) Arbitration and Mediation Centre ordered Brooklyn, New York stand-up comic Keith Malley to transfer the name to the studio, saying he has no legitimate right to it.

The decision noted that in addition to its many US and global trademarks relating to long-running television series The Simpsons, Fox owns the domain name “simpsonsmovie.com.” Malley registered “thesimpsonsmovie.com” and used it to funnel Internet users to his website called Keith and the Girl. He also sold merchandise featuring his comedy routines.

Malley had earlier used the domain to point to a website featuring “off-colour and in some cases sexually explicit depictions involving several characters” from “The Simpsons” television series, panellist William Towns wrote. When Fox contacted him about the website, Malley offered to sell it for $50,000. Fox took the case to WIPO, alleging the domain was confusingly similar to its trademark. Malley did not respond to the claim.

A finding under the UDRP that a domain name has been abusively registered requires proof of three elements, the arbitrator noted: That the domain is identical or confusingly similar to a trademark in which the complainant has rights; that the owner of the disputed name has no rights or legitimate interests in the domain; and that the name has actually been registered and is being used in bad faith.

Now I think cybersquatting regs have been routinely abused by corporations to seize domain names they have no particular right to, only because the name appears to have an element of their trademark in it, this is clearly not such a case. This is a case of a rather cynical use of a popular site dupe name. The irony is that had Malley actually stuck to his original use of the site as a Simpsons take off, there would have been a legitimate argument for his grounds to retain the domain name since the site was a Simpsons parody. Once though he began using it purely to promote his own comedy with no relevance to the Simpsons, it became a rather clear case of a domain name being created that is patently similar as an attempt to redirect traffic.

Again had Malley used a general Simpsons domain name, there might have been justification for it. However Malley used a Simpsons movie domain name and there really is no justification there. It’s not a comment on the Simpsons. It has nothing to do with the Simpsons.

Personally I think cybersquatting is a fundamentally deceptive and misleading term. It implies that companies are automatically the rightful owners of any domain that resembles them or resembles their trademarks. That is a dangerous principle but in this case it’s almost a legitimate usage.

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