Old friends of ours tell the tale of going to their first parents’ evening at their first-born son’s junior school sometime in the 1980s. They started off delighted to hear that he was very bright and a credit to them in many ways. But they grew restless as the teachers went into detail: ‘David is doing especially well in English’, ‘David is very creative’ and ‘David communicates well’. Who the heck, they wondered, is David? It turned out that their ‘creative’ and ‘communicative’ seven-year-old son had created a new identity for himself and communicated it to his teachers, but not his parents. To all but his parents, he is still David to this day. What was his reason for this change of name? He hated the name his parents had given him:‘Ryan’.
It was in the 1980s that Ryanair was born. That might not be coincidence.
I am not sure whether seven-year-old David/Ryan was gifted with second sight or was the leader of a trend. I do know that there is no shortage of people now who hate the name Ryan, at least when coupled with ‘air’. The company and its characteristics are the source of more jokes than mothers-in-law and such is its notoriety that its clever PR exploits it. But few take their aversion to the extreme of starting a web site devoted to the ‘many people [who] have been badly treated by Ryanair and shafted for hidden fees etc … as [a] means of expressing our general disgust’. The site created by Robert Tyler was called ihateryanair.co.uk. The case dealt with by the appointed expert for Nominet was based on Ryanair’s claim that Robert Tyler’s site took unfair advantage of their trade mark.
The expert, Jane Seager, made it clear that the mere fact that the web site contained criticism of Ryanair, some of which was forthright and clearly abusive, did not amount to enough to justify a transfer of the doman name: ‘dealing with criticism could be said to be the price paid in return for living in an open and democratic society’ and that a pure criticism site was likely to be ‘fair use’ within the meaning of the Nominet policy. But the site name was similar and the crucial point was that Tyler’s site had taken commercial advantage: ‘there is undoubtedly a link between the Respondent’s financial advantage and the Respondent’s use of the Complainant’s trade mark in the Domain Name. The Respondent only earned money because of the traffic to the website, and such traffic must have been influenced by the Domain Name. It cannot be fair to take advantage of the reputation attached to another party’s trade mark in this manner, whether it be good or bad, and in the Expert’s opinion the Respondent has therefore effectively taken unfair advantage of the Complainant’s Rights in order to gain a financial advantage’. The Expert’s conclusion is eminently readable and can be read in the full judgment, which can be downloaded from the panel opposite or read {here: http://www.nominet.org.uk/disputes/drs/decisions/decisionssearch/?disputeid=8527}.
I have four observations. First, it takes a special form of cheek for Ryanair, which charges its customers for paying with plastic and is a legendary exploiter of other hidden charges, to win an action of any kind because {i}their opponent{/i} derived hidden revenue from the online transactions with its users.
Secondly, the criticisms of the decision in the case that present it as the end of free speech on the Internet are not to be taken even slightly seriously. This was not a site devoted to the overthrow of repression in Burma – most of it is just abusive and some of its content is understandably offensive to the airline, even if the suggestion that MOD Harrier Jump Jets are to be adapted for service by Ryanair is inspired – ‘extra charge for the use of the ejector seat’. (At least it would be offensive if Ryanair had not perforce developed a pretty thick skin – I suspect it has heard worse.)
Thirdly, and most important, the decision reveals a worrying difference between the UDRP procedure and the Nominet procedure. The case might been decided differently under the UDRP procedure for .com sites because the site could not have been described as ‘confusingly similar’ to the protected name. Even the most perverse Ryanair PR would not go so far as to set up a ‘ihateryanair’ site so there was no danger of confusion. But Jane Seager took the view that ‘such a finding at this stage would be contrary to general practice under the [Nominet] Policy, which is different to the UDRP’; Nominet policy requires only that a domain name is ‘similar’ as opposed to ‘confusingly similar’. I think it is worrying that such a divergence of policy exists. I suspect that it is Nominet that needs to look to adapt and bring its policy into line with that of the UDRP, not least because it is a more responsive organisation and is capable of speedier action. But whoever shifts, somebody should. The Internet knows no geographical boundaries and, so far as is reasonably attainable, the rules that apply in disputes like this should be consistent, if not uniform.
Fourthly, and perhaps just one for editors and law publishers, Nominet might like to have a look at the recommendations for neutral citations for judgments and, as a minimum, number paragraphs in its rulings for ease of reference.
