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A David and Goliath-style cybersquatting case involving a ‘joke’ website, consisting of a picture of a horse superimposed over a supermarket, recently came to a conclusion. Kitty Rosser, an associate at Birketts LLP, explains the background to the case and the legal issues it raised.
Since late 2013, the domain name landscape has undergone significant change with the release of thousands of new generic top-level domains (gTLDs). Historically, registrants could only choose from around 20 different gTLDs (such as .com, .net. .biz etc). The decision to release new gTLDs offers a solution to the constantly increasing demand for a finite resource and allows registrants a new opportunity to further define their offerings and stand out in the online space. However, the new gTLDs also pose some challenging brand protection issues.
In late February this year, cartoonist Jeph Jacques took advantage of the release of the new gTLD .horse to register the domain Walmart.horse. He pointed the domain to a single page website, the sole content of which was an image of a horse superimposed in front of a Walmart store front. In March Jacques received a cease and desist letter from Walmart alleging infringement of its trade mark rights. Jacques responded to Walmart arguing that, as his site was an obvious parody, his use of the Walmart mark fell within the fair use defence (note that while this is a defence under US trade mark law there is no equivalent provision in UK law). In April Walmart filed a claim with the World Intellectual Property Organisation (WIPO) under the Uniform Domain Name Dispute Policy (UDRP). Jacques removed his site and voluntarily transferred the domain to Walmart before any decision was made under the UDRP.
To have succeeded in its claim under the UDRP, Walmart would need to have been able to show that:
(i) the domain name was identical or confusingly similar to a trade mark or service mark in which it had rights
(ii) Jacques had no rights or legitimate interest in respect of the domain, and
(iii) Jacques had registered, and was using, the domain in bad faith
While it is clear that Walmart would have had little trouble in fulf
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