Amy Winehouse was not long gone before the domain names <amywinehousefoundation.org> and <amywinehousefoundation.uk.org> were registered.
Winehouse, the renowned UK singer, recently died at a young age.
Her father, Mitch Winehouse, announced that he would launch a foundation in his daughter’s name, with the aim of raising funds to assist those struggling with alcohol and drug abuse.
Alicia Louw, associate at corporate law firm Bowman Gilfillan, comments: “However, some others – acutely aware of the advertising power of the internet – saw dollar signs. Shortly after Mitch’s announcement, they registered the domain names <amywinehousefoundation.org> and <amywinehousefoundation.uk.org>.”
It is a context that prompts Louw to draw attention to the speed and simplicity attaching to the registration of a domain name.
“There are no checks and balances to ensure that the registrant has any right to the name, and that registration of the name will not infringe any third party’s rights,” she says.
In order to register a domain name one simply checks its availability, completes a form, and pays a relatively small sum of money. “That’s all you need to do to ensure that the domain name is yours.”
The process, Louw points out, is clearly open to abuse, with trademark owners and celebrities often the victims of unscrupulous “entrepreneurs”.
The Internet Corporation for Assigned Names and Numbers (ICANN) is the organisation responsible for, among other things, management of the generic top level domains such as .com, .net and .org. In order to combat the problem of domain names infringing third party rights, ICANN adopted the Uniform Domain Name Dispute Resolution Policy (UDR Policy) in December 1999.
Louw explains that in terms of the UDR Policy, it is possible to file a complaint to get a domain name back if a person or company believes they have better rights to the name. To do so, they must demonstrate:
* The domain name is identical or confusingly similar your trade mark;
* The Registrant has no rights or legitimate interests to the name; and
* The domain name has been registered and is being used in bad faith.
“Failure to show all of these elements will lead to the complaint being unsuccessful,” says Louw. “This would mean claimants have to negotiate a fee with the Registrant to get the domain name back.”
The bad faith clause is the one that causes the most difficulty, she adds. “Thankfully, the UDR Policy sets out a list of circumstances that are indicative of use and registration of a domain name in bad faith.”
Often domain are registered in the hope they can be sold, rented or transferred to the “rightful” owners at a fee.
“I suspect that the registrants of the Amy Winehouse Foundation domain names are unlikely to have much luck in selling the domain names for millions and will, in the end, probably be obliged to transfer the domain names to Mitch Winehouse and his foundation,” she says. “Unfortunately, however, Mitch Winehouse will have to spend some money in fighting to get the domain names back.”
Louw says the lesson to be learnt is to register a domain before announcing an intention to do so.