Unix owner retrieves two out of three domain names
X/Open Company Limited, the registered owner of the UNIX trademark, has been successful in having the domain names 'unix.org' and 'unix.net' transferred to it, but failed in its complaint in respect of the domain name 'unix.com'.
All three domain names were owned separately. X/Open filed complaints against each owner under the Uniform Domain Name Dispute Resolution Policy (UDRP).
UNIX is an invented word used in relation to computer software. X/Open provided evidence of registrations or pending applications for UNIX in over 75 countries.
The owner of 'unix.org' had purchased the name for $5,000 in August 2001. The owner had begun developing a non-commercial website, which was intended to contain editorials and articles in support of the UNIX operating systems. The owner stated that the website would follow X/Open's guidelines for third-party use of the UNIX trademark and would include hyperlinks to X/Open's websites.
A single-member panel found that despite the respondent's stated intentions of developing a non-commercial site, its homepage included a link to a website that included commercial offers for products and services. This link was enough for the panel to conclude that the domain name had been registered and was being used in bad faith.
The panel also found that the domain name was confusingly similar to the UNIX trademarks and that the respondent had no legitimate interest in the domain name. Thus, it ordered the 'unix.org' domain name be transferred to X/Open.
The respondent did not file a response to X/Open's complaint in respect of 'unix.net'. The same panellist that heard the 'unix.org' complaint ordered that 'unix.net' be transferred to X/Open, as the registrant was using the site to promote web hosting services in bad faith.
Before the complaint was made, 'unix.com' had been used for approximately seven years to host a free-speech website for the exchange of information about the various UNIX operating systems. A three-member panel found that on the information available, the respondent was not receiving money for this activity.
The panel found that although X/Open had established that the domain name was confusingly similar to its UNIX trademarks, it failed to prove that the respondent did not have a legitimate interest in respect of the name or that it was being used in bad faith. Accordingly, the panel dismissed X/Open's complaint.
Martin O'Connor, Coudert Brothers, Sydney
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