Originally, the domain name system was first-come-first-served, and that worked pretty well. But corporations got trademark powers extended by having them formally built into the domain name arbitration process. Now, trademarks are a minefield.
And the mines are getting more powerful. If you're wondering how anyone but a blithering idiot could possibly confuse "Guinness Really Sucks" with Guinness itself, you're not alone.
The precedent here is the case of Wal-Mart Stores Inc. vs. "Walsucks." In that case, there were two things that led WIPO to determine that there was a likelihood of confusion. First, "the strength of the WALMART trademark."
And second -- interestingly -- the "intent in selecting the domain names."
Proving trademark strength is simple, a corporation just trots out its list of how many millions of dollars it's spent on ad campaigns, and how many devoted customers it has.
And in this case, proving the owner's intent was easy too. He made the mistake of getting mad at Guinness (ironically, about a previous domain case) and being foolish enough to say so. He posted on an old website:
I tell you, I was so upset when I got this STUPID ASS LETTER from the GOOFBALL JACKASS LAWYERS at guinness beer, that I went to register the domain name, GUINNESSSUCKS.COM, but guess what, that domain name is already owned by someone. Guess who. That's right. Guinness beer owns it themselves. I'm glad I'm not the only one who thinks they suck. THEY THINK THEY SUCK THEMSELVES!! ... So anyway I did go and register a few names about guinness beer and pillsbury. Tell me what you think....Coming Soon to a website near you!!
You may be saying, so what? Who cares whether he was angry or not? Doesn't he have a right to protest a corporation regardless of his emotional state?
You might think so, but you'd be wrong. His thoughtcrime is a big part of why these domains were taken away. The argument that Guiness put before WIPO was that "the Respondent admitted ... that he registered the [domain names] because he was angered."
Therefore, said Guinness, "the registration of the [domain names] was done in bad faith" -- which is the main thing needed to take a domain away from someone -- "and not for a legitimate purpose, rather Respondent's intent is to harass the Complainant."
I wish I could tell you that WIPO told Guinness to shove this attitude where the sun doesn't shine, and that even ordinary citizens have the right to say that some precious corporation sucks.
They didn't, of course. In their decision, they reference the owner's anger and then simply say that they "accept that the Complainant has made out a prima facie case that the Respondent registered said domain names with the intention of harassing the Complainant."
To them, anger means bad faith and no legitimate purpose, which are the key phrases that WIPO needs to assert before they take a domain away.
There are some kinds of speech corporations don't want to allow on this little thing we call the internet. In the new domain name system, it's not a "legitimate purpose" to say that a company sucks. Especially if you are one of those angry people who doesn't understand how great Guinness beer is. Sorry. Go find another domain, loser.
WIPO went on to point out was that there may be some non-English-speaking readers who may not be familiar with the word "sucks." These people might be confused as to whether they were looking at the Guinness homepage or not. Therefore the test of trademark confusion was met. I am not kidding.
Although Guinness "has not submitted any evidence of such confusion," they don't even need to: "it is unrealistic to require such evidence."
Here's the list of really confusing domains. Someone tell me how these URLs could be mistaken for the Guinness beer website:
It gets worse. I might search on Guinness and turn up a "-sucks" website, and then I might actually be curious and click on it, thereby depriving the real Guinness of my eyeballs. Again, I am not kidding. This is actually part of the reason the domains were taken away from their owner.
I'll write some more about this later, maybe next month. If you know anyone who feels like their domain name was unfairly taken away, please have them contact me.