Claimed ignorance foils Economist domain case

'I'd never heard of The Economist,' says economist

Financial magazine The Economist has failed in its attempt to gain control of the internet address theeconomist.com.

The address was not transferred to it because the owner claimed that he had never heard of the magazine when he registered the name.

The site simply carries a picture of Alan Greenspan, the former chairman of the US Federal Reserve, and a note calling him "the economist of the century".

The Economist took a case under the World Intellectual Property Organisation (WIPO)'s dispute resolution service. Under WIPO rules a domain name can only be transferred if the name is identical or confusingly similar to a trade or service mark owned by the body trying to gain control of the address; if the person holding the address has no rights in it, and if the address was registered and used in bad faith.

Anyone hoping to gain control of a domain must prove all three of these elements in order to be handed the address. The Economist failed to show that the address owner Jason Rose registered the domain name in bad faith.

Rose claimed that he had never heard of The Economist in 1996. The Economist disputed this, claiming it would be almost impossible for someone interested in current affairs and economics not to know the magazine, but WIPO panelist Sir Ian Barker, a QC, said that he had to be believed.

Barker said that the claim was hard to believe, but that the WIPO system was not designed for ruling on such questions of fact.

"The panel cannot find bad faith registration proved on the balance of probabilities," he wrote in his judgment. "Despite the panel’s misgivings about the credibility of his claim, this proceeding under the policy is not the proper forum for testing its validity more than 11 years after the domain name was registered."

"The only way that Mr Rose’s assertions can be tested is in litigation where a judge would have proper opportunity of assessing the quality of this evidence. A proceeding under the policy is not the proper forum for determining such a belated issue of fact," he said.

It was found that Rose had no legitimate rights or interests in the term The Economist, and that he was using the address in bad faith. Panelist Barker even said he was "highly sceptical and almost incredulous" about some of Rose's claims. "His statements generally appear somewhat self-serving," he said.

But because it could not be proved that Rose had knowledge of The Economist in 1996 and that it was therefore a registration in bad faith, the domain name remained with Rose.

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.