Birds of a feather
Domain name rights offer territorial display opportunities that are crucial to business success online, not least for the channel.
Like so many brightly coloured birds, businesses have flocked to the worldwide web for the past two decades. Standing out from his or her fellows may entail brilliant plumage and a louder, clearer call to the market, and squabbles over territory are surely only to be expected.
Many businesses have knocked heads over the rights to use certain domain names on the web - not just as their virtual home online but for marketing purposes, especially when the focus is on search engine optimisation.
When the feathers start to fly, losing can be costly - if not so much financially, in terms of displaying a clear identity online and a strong brand that is easily discovered and sends the right message to potential customers.
Daniel Kelleher, legal counsel for .uk registrar Nominet, says that while the number of domain name disputes it fields does not seem to be on the increase, the issue is something that businesses should certainly consider when setting up or expanding their operation, particularly online.
"Over the past few years, we have on average about 670 disputes a year. Last year, we had about 800, for reasons unknown," he confirms. "Most are from businesses, we believe, and we field disputes from abroad as well."
There are about 2.5 million .uk domains in existence. The main legal issues are where a complainant has a trademark or some other kind of right to a particular name, and another website has a URL that is very similar, says Kelleher.
If online territorial disputes and the related public displays are not taken seriously, they can turn into a turf war. As reported on ChannelWeb, a domain name dispute between neighbouring computer resellers Crawley Computer Centre and Frontline Networks had to be refereed by an independent expert when Nominet's dispute mediation service failed.
A squabble between the two Sussex companies escalated recently, according to Frontline managing director Saeed Moghul, after he discovered his rival appeared to have copied and pasted a block of text from Frontline's website to its own.
"They had copied sections of our website, word for word," he says. Google agreed with him, and his rival was forced to alter the text on its website.
That was just before owners Barry and Karen Jones laid a complaint with Nominet about Moghul's use of www.crawleycomputercentre.co.uk. Moghul suspects this was in direct retaliation - and no one at Crawley Computer Centre has come forward to contradict the claim in response to CRN's enquiries.
Moghul registered the domain in question in 2002 alongside about 20 other generic terms with a view to enhancing online searchability, before Crawley Computer Centre existed as a company with that specific name. Frontline is, after all, a computer centre based in Crawley.
However, the Joneses argued that this act was an "abusive registration" and that Frontline was attempting to pass itself off as Crawley Computer Centre - a charge Moghul strenuously denies, noting that Frontline has always been branded both online and in "real life" as Frontline, and was founded in 1989.
In any case, he says, he had never heard of Crawley Computer Centre before 2008.
Crawley Computer Centre was, however, founded in 2001 -- although it was originally registered at Companies House as Business Images Ltd until bought by the Joneses in 2007. It also uses generic URLs to help funnel business to its own website - for instance, www.crawleypc.co.uk. Another similar firm, called Crawley Computers, shut down in 2004.
Moghul surmises also that a Frontline staffer who left to work at Crawley Computer Centre in 2008 transferred his knowledge and understanding about the benefits of search engine optimisation to the other reseller at that time.
Nominet's independent expert Ravi Mohindra ruled in favour of the Joneses in July -- although he conceded that the complainant's evidence regarding its specific rights to the term "Crawley Computer Centre" as a distinctive mark was weak.
"The evidence submitted was sparse, both parties raised issues not directly related to the policy, and neither party's submission was well drafted," Mohindra wrote.
"[However] on the balance of probabilities, the respondent would have had at least some knowledge of the business operated by the complainant's predecessor, and that it was trading under the name Crawley Computer Centre."
Moghul says he was very disappointed by the decision. "This means that everybody, any company, that has recognised the value of search engine optimisation and Google can lose the use of a URL as a result of this precedent," he says. "I don't know where to go from here."
Smoke them out
Filing an initial complaint is free of charge, but charges escalate to ￡3,000 plus VAT on appeal, which must be made within 10 days. An appeal via the Nominet dispute resolution service that results in a final ruling may be heard by a panel of three independent experts, who are each appointed by the registrar for a one-year renewable term.
One of the more amusing recent cases was in 2006 when US avionics company Lockheed Martin filed a complaint against UK Skunkworks - a retailer specialising in, er, smoking paraphernalia.
It turns out that the venerable aircraft maker has an R&D facility in California called Skunk Works, and was worried about being confused with a small chain of "head" shops, which it claimed was "highly likely".
When asked to respond, the UK firm said there was no chance of confusion as it did not make or sell stealth bombers or military services and, what's more, it resented being associated with an international arms dealer. Nominet agreed, and the US company was finally sent packing after a failed appeal.
The procedure for resolving disputes is similar for domains controlled by other registrars, such as ICANN.
You can also complain to a registrar about incorrect Whois data. Where the registrar does not have a dispute resolution service, court proceedings can be initiated.
Nominet's Kelleher says the Crawley case was indeed a tricky one for the registrar to decide, and he warned businesses to take care and do their research before registering domain names - or indeed, company names.
"SEO is something that people do, and the Crawley case was a really borderline one," he confirms. "But I find it hard to believe they would not have heard of each other before that time."
He says the ruling sounded very much like the companies had not documented or argued their cases well enough -- although he conceded it could be a tall order for SMBs with limited resources and without the drafting skills in-house.
However, the dispute resolution service was designed to help companies that cannot afford legal advice.
Disputes often fall into the category of "cybersquatting", Kelleher confirms, although the term is used inconsistently to describe disputes.
It overlaps with the "brandjacking" concept, where someone acquires or assumes the online identity of someone or something, thereby gaining brand equity.
This covers not only URLs, but Twitter handles and the like -- such as @BPglobalPR, which is not run by BP but by a protester attacking the oil company over its 2010 spill, itself reminiscent of the PR practice of astroturfing where people pose as grassroots commenters or groups in a bid to influence public opinion.
One thing is certain, birds on the internet may not be all of a feather no matter what song they sing, and forethought is required to protect your territory against posturing by others.
A field guide to domain name disputes
■ When did you register the domain name in question - before or after your rival?
■ Is the domain name based on generic terms that could be associated with many businesses?
■ Does the domain name resemble that of a famous brand? If so, how much?
■ Are there any formal intellectual property rights involved, such as copyright, trademark or patents? Is the domain name someone's actual name?
■ Do you have any way to show that your rival registered the name in bad faith?
■ Have you approached the registrant and attempted to work out the problem? How did he or she respond?