Tour Boat Firms Collide In ICANN Domain Dispute 05/26/00 – Rockport Boat Line and Gananoque Boat Line – Company Business and Marketing
ROCKPORT, ONTARIO, CANADA, 2000 MAY 26 (NB) – A Canadian company that offers boat cruises through the picturesque Thousand Islands on the St. Lawrence River figures it has been left high and dry by a process designed to quickly settle disputes over Internet domain names.
Rockport Boat Line Ltd., whose river tours cast off from Rockport, Ontario – a small village near the foot of a bridge connecting Canada with northern New York State – has lost a bid to retrieve the domain “RockportBoatLine.com” through a speedy dispute resolution process launched late last year, by the Internet Corporation for Assigned Names and Numbers (ICANN).
Rubbing salt in the wound is the fact that the current holder of that particular address is another Canadian company that is not only a neighbor, but also one Rockport’s biggest competitors in the Thousand Islands boat-tour game.
When the Rockport Boat Line turned to ICANN’s Uniform Domain-name Dispute Resolution Policy (UDRP) in March, reclaiming the address matching the name under which it was incorporated seemed like it should be clear sailing.
Kathleen Allen, the company’s general manager, told Newsbytes she was surprised when the professional arbitrator assigned to the case, retired US Circuit Court judge Edmund Karem, decided that Rockport’s argument failed every single test required to win the dispute.
Instead, Karem ruled, the domain could stay in the hands of Gananoque Boat Line Ltd., a tour boat operator headquartered in a town 10 miles west of Rockport, but which also makes regular stops at a place called Ivy Lea – a short paddle from the same US-Canada bridge the crew in Rockport can see from their dock to the east.
Allen isn’t the only one taken aback by the ruling. Internet law expert Michael Geist of the University of Ottawa Law School called the ruling “ridiculous.”
“It’s a pretty surprising decision and certainly doesn’t inspire confidence,” he said. “It’s the sort of case that would have appeared to be a slam-dunk, and the sort of case this dispute policy was really designed to deal with.”
Ironically, one of the first disputes settled under the UDRP, which was launched in December 1999, involved a boat line. In January, Miami-based cruise giant Cunard requested that it be able to retrieve “CunnardCruise.com” from Champion Travel of Riverside, Ill. Cunard won its argument and was awarded the right to the domain by Daniel Banks, another retired judge assigned by the same outfit processing the Rockport case – the National Arbitration Forum (NAF) of Minneapolis, Minn.
NAF is one of four “dispute-resolution service providers” currently accredited by ICANN.
Under the process ICANN refers to as a mandatory administrative proceeding, arbitrators can ask a domain-name holder to give up their address if all three of the following conditions are met:
– The domain name must be “identical or confusingly similar” to a trademark or service mark belonging to the complainant.
– The company has no rights or legitimate interests in the domain name itself.
– The domain is being used in bad faith.
Rockport’s Allen said that, while her company hasn’t trademarked the name “Rockport Boat Line,” it was incorporated under that name and has been doing business using the moniker for a number of years.
Other decisions under the UDRP have weighed a combination of such factors in coming to grips with the first test, since trademarks and various forms of business registrations are often regional while ICANN polices its .com, .net and .org domains globally.
Geist said he was disappointed that the arbitrator appeared to accept Gananoque Boat Line’s claim that it had a legitimate interest in “RockportBoatLine.com” because it anticipates it may dock in that town in the future.
As for “bad faith,” the ICANN UDRP has four tests for that and an arbitrator needs only to find the domain holder has violated one of them. Those tests include:
– That the domain was registered “in order to prevent the owner of the trademark or service mark” from obtaining the same domain.
– That the domain was registered “primarily for the purpose of disrupting the business of a competitor.”
– That the purpose of the domain name is to “attract, for commercial gain, Internet users … by creating a likelihood of confusion with the complainant’s mark.”
Said Geist: “It’s hard to think of a more textbook case. It’s the name of a competitor, they are competitors – just down the river from one and other. You’re dealing with what would seem to be bad faith.”
Said Allen: “To me, it was just a direct hit against Rockport, who they feel is in direct competition.”
She said her Gananoque competitors don’t currently have a Web site behind the doppelganger URL, but she’s worried about what might happen in the future.
“Maybe it’s not being used at the moment, but now that they can keep that domain name, they are free to use it,” Allen said. “That means anyone who goes to (rockportboatline.com) could be then forwarded to Gananoque Boat Line’s site.”
Allen, whose company had held the domain RockportCruises.com for some time, said it had to resort to adding an “s” to the disputed domain name in order to register something similar in March of this year.
“We registered everything that we could think of that would have to do with Rockport Boat Line, and that’s the only one we didn’t get,” she said. “They happened to take it about a week before we did our registering.”
Geist said he was also disturbed by the lack of explanatory content in the written decision of the arbitrator in the Rockport case.
“It’s a rather skimpy decision,” he said. “There isn’t much in the way of reasoning.
“The lack of reasoning – and this just speculation – may stem from the fact that this is rather cheap,” Geist said. “The entire process is designed to be inexpensive. So, for professional arbitrators … the fees that they are going to receive are going to be well below what they may be typically accustomed to receiving.
“From their perspective, this may be a matter of ‘Get this done, and done quickly, and get on to more profitable activities.’ In some ways, the lower fees may be discouraging some arbitrators from giving their full attention to the matter and providing a full slate of reasons. And this, obviously, would be incredibly unfortunate if it is the case.”
Geist said Rockport Boat Line’s remaining course of action – other than giving up – is taking the dispute to the courts.
“From a Canadian perspective, it would be interesting,” he said. “We have not yet had a Canadian court examine how we would treat as authority an ICANN decision.”
Rockport Boat Line is at: http://www.rockportcruises.com/ .
Gananoque Boat Line is at: http://www.ganboatline.com/ .
Reported by Newsbytes.com, http://www.newsbytes.com
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