A recent domain dispute involving a website devoted to criticism of the Irish airline, Ryanair, has shown the distinction between a criticism website that legitimately uses a trade mark as part of the website’s domain name and a website that misuses a trade mark for commercial gain. In this case, the receipt of £322 in advertising revenue generated from the site was sufficient to turn a criticism website into a commercial website.
In 2007, a disgruntled Ryanair passenger, Robert Tyler, set up the site “ihateryanair.co.uk”. As the name suggests, the website at this address was devoted towards heavy criticism of the low-budget airline. The site also included links to other preferred airlines, under the heading “sites we like”. Earlier this year, presumably due to the popularity of the site, Mr Tyler added commercial links to third party advertisements for travel related products and services such as travel insurance. Mr Tyler earned £322 from the links before he took them down.
In April this year, Ryanair filed a complaint with nominet, the organisation responsible for managing registration of .uk domain names, in relation to “ihateryanair.co.uk”. Ryanair based its complaint on the following:
- the content on the website is “highly damaging” and defamatory, going beyond fair criticism;
- users are attracted to the website due to the inclusion of the RYANAIR trade mark;
- Mr Tyler derives revenue from the website (which is greater than if the RYANAIR trade mark was not used); and
- use of such a domain name may only be permissible if it is used for the sole purpose of fair criticism; it is not permissible if operated for commercial gain.
The expert appointed to decide the proceeding acknowledged the importance of criticism websites in a democratic society. However she stated that “it is the very nature of a criticism website that discussion should be open and not influenced by commercial concerns.” The expert also found that by earning money from the third party advertisements, Mr Tyler had “effectively taken unfair advantage of [Ryanair’s] rights in order to gain a financial advantage”. The commercial gain received, although small, was enough for the expert to order that the domain name be transferred to Ryanair.
The content from this site has now been moved to “ihateryanair.org”. It will be interesting to see if Ryanair brings a complaint in relation to this domain name, particularly since, instead of the proceeding being decided in the UK under the .uk Dispute Resolution Service Policy, it will be decided under the Uniform Domain Name Dispute Resolution Policy and may therefore be decided differently.
