OPINION
Passing off Web site Names
21-03-2003
by Bernie Goldbach
Deciding on a Web address involves more than finding a catchy name
If your Web address is easy to remember, if it sounds authoritative and if it appears relevant to someone searching on the Internet, you will attract more visitors than using a less compelling domain name. But deciding on a Web address involves more than finding a catchy name.
You could fall foul of the law if you choose to give your Web site a name that is misleading. This has been a recurring topic of discussion among Irish Web developers who explore the limits in the kind of words used in the Uniform Resource Locator (URL) of their Web sites.
"Most search engines can vary the weight that they assign to the domain name or URL," said John McCormac of Hackwatch. "Over the past few years, the main players concentrate more on the content and the linking."
McCormac also pointed to problems a Web site could have if the domain name was too close to a competitor's trading name or trademark. This could fall under restrictions against "passing off" under Irish law.
It is prudent for any person incorporating a company, buying a shelf company or registering an Internet domain name to ensure that the name chosen is not confusingly similar to any name or brands in which someone else has a substantial reputation. In Ireland, the Registrar of Companies will refuse registration if the proposed name is identical to an existing registered company. Equally, the owners of brands should be aware that they may have a remedy should they discover that someone has registered a name confusingly similar to a name or trademark in which they enjoy goodwill.
In the United States, the Anticybersquatting Consumer Protection Act provides the same kind of protection. If a domain registrar allows someone to register a domain name that is confusingly similar to a trademarked name, the courts can order payment of significant damages.
"The only way a competitor would be entitled to make a legal issue of it would be if a registered name is involved," said Seamus Ryan from Limerick. This means a company could register a generic term as a domain name and not violate any legal standard.
Some of these disputes end up in arbitration with the World Intellectual Property Organization (WIPO). The WIPO Arbitration and Mediation Center normally reviews three legal grounds as a basis for their decisions. First, WIPO determines whether there are issues concerning "identity" or "confusing similarity." Second, WIPO evaluates the "legitimate interests in the disputed domain names." Finally, WIPO will rule against owners of disputed domain names that were registered and used in bad faith.
"It would be rather awkward to win an action, if both parties are equally entitled to register the domain names," said Michele Neylon, CEO of Blacknight Solutions.
"Perhaps the engines should stop assigning ranking points to words in domain names," said Brian Walsh, MD of Alia in Cobh, "because domain names are not even-handed indicators of relevance."
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