Software King cleared of cybersquatting charges

Canada

In The Software Guy Brokers Ltd v Hardy and Cabell (dba Software King), the Supreme Court of British Columbia has issued a decision over a dispute between two competing online software businesses. Software Guy applied for a pre-trial injunction restraining Software King from using its name and the domain name 'thesoftwareking.com', which it claimed were confusingly similar to its own. Software Guy also claimed that Software King's website (including text, graphics and "overall look and feel") had been copied from its own site.

Software King resisted the injunction application primarily on the basis that although similar, the names and domain names were not confusingly similar and that Software Guy did not own the copied website content.

The court dismissed the injunction application on the basis that Software Guy failed to establish a prima facie case of either passing off or copyright infringement. The court held that there was no likelihood of consumer confusion, misrepresentation or deception, reasoning that all of the elements of the similar business names and the domain names "are generic names except the words 'King' and 'Guy', which are not similar in appearance, sound or meaning".

The court dismissed the copyright claims on the basis that although Software King's website copied almost the entire text of Software Guy's site and some of its graphics, Software Guy had failed to establish that it owned or had any proprietary interest in the copied text or graphics. The court also noted that there is no copyright in the concept or idea of operating an online retail software business, or in the marketing strategies used in that business.

Bradley J Freedman, Borden Ladner Gervais LLP, Vancouver

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