Ryanair‘s case against ryanaircampaign.org at the WIPO arbitration under the domain-name dispute resolution procedure is an interesting one – and of course, reported on by a hungry news media over the quiet Christmas period! Read the full decision here (worth reading).
Basically, it fits into a popular pattern referred to (in all seriousness) as the ‘-sucks’ cases! Put simply, is the registration of a name (such as lexferendasucks.com) in violation of this aspect of the policy (section 4a):
(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.
where the trademark/service mark is (e.g.) lexferenda or lexferenda.com
The record of -sucks domain name owners is quite mixed, in fact – but generally speaking, the clearer the criticism (i.e. prominent disclaimers ‘this is not the real site’, no attempt to deceive or to tarnish the reputation of the trademark for the sake of it, etc), the easier it is to defend the registration and use of -sucks. In this case, -campaign had a little more to prove, but the ‘little guy’ won and Ryanair failed in its effort to get ryanaircampaign’s registration yanked. Funnily, one of the things that they complained about (in this case, and on previous occasions) was how the site provided email addresses for different persons and sections in Ryanair, as well as direct (non-premium) phone numbers; as is well known, Ryanair (despite its success as a famous online success story, selling most flights via a good website) refuses to supply email addresses, and of course, phone calls are to a premium-rate number. So this annoyed the company no end. Hee hee.
Here’s what is to me the most interesting bit. Ryanair argued:
Whilst many of the ‘-sucks’ sites have found favour with respondents using such websites to air commonly held (or otherwise) views, it is the case that the doctrine of free speech around which many such defenses are framed does not accord with EU trade mark law – and since both of the parties to these proceedings are EU resident, it is respectfully submitted that the laws applicable in this territory should prevail.
So EU trademark law and free speech don’t go together. Oh dear.
The decision, though, didn’t take this remarkable submission on board – primarily by looking at the context in which the UDRP was adopted:
Domain name registrations that are justified by legitimate free speech rights or by legitimate noncommercial considerations would likewise not be considered to be abusive (from WIPO final report before UDRP, 1999)
And also referred to a previous case (involving the trademark ‘Covance’ and covancecampaign) (decided by ‘Ireland-based panelist Alistair Payne’ with European parties) where the use of ‘campaign’ by a non-commercial critical party was held to be OK.
They also gently squashed the attempt by Ryanair to argue that the free speech argument was nullified by the fact that the claims were untrue – holding that there are other, more appropriate fora for considering such claims of truth or otherwise.
On a final note, it looks like the forum area in particular (let alone the general statistics!) has seen quite some traffic since the decision was handed down. I don’t think that’s what Ryanair really wanted? (It’s an interesting enough site, nothing too shocking that I haven’t heard before, my personal experiences with Ryanair have been OK – so far)