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Recent Case Notes & Commentary

The Need for Altruism: When is a Website Educational and When is it Commercial?

Accuray Incorporated v. Sanjay Mongia / Neuro Network

Claim Number: FA1409001582340

Decision: November 3, 2014

There would be universal agreement that a website created for educational purposes should be protected by the UDRP. However, what subject matter should a Respondent make available so that a Panel deems that it has a right or legitimate interest in the domain name? At what point will a domain purportedly used to educate others find itself in the cross hairs of the Policy?  Fortunately, a recent case has provided guidance on what will be considered an educational website, and what will not be.

In short, a website will only be considered educational when its sole focus is just that; education. Any hint of commercial gain will bar a Respondent from claiming that they have a right or legitimate interest in the disputed domain name, as well as a Panel finding they have engaged in bad faith.

This is consistent with recent decisions relating to gripe and fans sites respectively, in that the websites may contain actual criticism or tributes, but will nonetheless be deemed as cybersquatting if the owners receive any sort of financial benefit, such as using the website to promote their own business or practice, such as a lawyer or a real estate agent.

The Parties:

The Complainant is a producer of devices used during radio surgery, and has registered the trademark, CYBERKNIFE, both in the United States and India.

The Respondent was a qualified surgeon in India, and often uses the Complainant’s products in carrying out his profession.

Disputed Domain Name

Dispute revolves around the domain name, <>, which Respondent registered on May 23, 2013

The impugned website contained information relating to the CYBERKNIFE product, such as a rudimentary explanation of how the technology worked and its advantages compared to other procedures.

Identical and/or Confusingly Similar

Complainant had registered the trademark, CYBERKNIFE, in two countries. Unsurprisingly, the Panel found that addition of the geographical name, India, as well as the .net gTLD, was insufficient to distinguish the Respondent’s mark from the Complainant’s.

Rights or Legitimate Interest

It was ruled that the Respondent did not possess any rights or legitimate interest in the domain name. The Respondent’s principal argument was that he was simply providing educational information to the Indian public about the Complainant’s radio surgery products. As he put it himself, “…the website to which the disputed domain name resolves purely for information and knowledge of patients about the availability of the technology for treatment.” This, he argued, was bona fide and gave rise to a legitimate use of and interest in the domain name. However, the Panel was left unconvinced that it was necessary for the Respondent to utilise the Complainant’s registered trademark to disseminate this already widely-available information o that the site was purely educational.

Although the Respondent argued the disputed domain name was for purely educational reasons, the facts suggest otherwise. Not only was the website used to promote the Respondent’s own business operations, but also as a means to re-direct users to a competitor of the Complainant by pay-per click advertising.

Bad Faith

The Panel held the Complainant had provided sufficient evidence to prove bad faith. Whilst not disputing the Respondent’s right to create a website to enlighten individuals about technology used in radio surgery, this did not entitle the Respondent to use the Complainant’s to gain a monetary benefit.

As the Respondent would be conducting the procedures himself by using the Complainant’s technology, it cannot be dismissed that there was no commercial advantage in marketing the product. It is not too much of a leap to find that the Respondent was not only providing education about the devices used during the radio surgery, but also as a platform to spruce his own services.

The final nail in the Respondent’s coffin was that he also provided links to rival websites of the Complainant. Accepting payment to allow the Complainant’s business competitors to advertise meant it could not be said that the website was solely for educational reasons. Accordingly, the Panel ruled that the Respondent had engaged in bad faith, thereby satisfying the third and final element and ordering the domain name be transferred.

No Hint of Commercial Gain Can be Present

As a health professional, it is not inconceivable that the Respondent held an intention to educate his patients. Undoubtedly, radio surgery would be a confronting and traumatic experience for some. Any attempt to demystify the procedure and allay people’s fears should not be prevented. However, the evidence indicates the Respondent was not motivated by purely altruistic intentions, with clear economic benefits flowing his way.

The Panel was correct in its decision. It did not say educational sites would not be afforded protection under the Policy, only that people could not infringe marks of others under the guise of educating others. Using other’s marks as launching pad for your own operations, as well promoting a rival’s technology on your webpage is clearly contradictory with the contention that the domain was merely an educational tool.

In light of this case, as well as the other recent decisions inZillow 1and Bobby Ginn2, there appears to be a theme developing in the findings of Panels when they render their decisions; namely, Respondents will not be afforded protection by arguing they have simply created an educational, tribute or gripe site when they stand to benefit financially from the disputed domain name. Therefore, those hoping to argue that their website falls into one of those categories should ensure that they receive no financial compensation, or they will likely be found to be a cybersquatter.

NOTE: Research for this article was carried out by Jacob Bayley but the text and the views expressed are the responsibility of the Editor.

[1] Zillow, Inc. v. Chris Storseth / Chris L Storseth , NAF Case , date : October 3, 2014, Claim Number: FA1409001578264; also noted in Domain Times.

[2] Ginn Real Estate Company LLC v. Hilton Wiener , NAF Case , date  : August 20, 2008, Claim Number: FA0806001211342  

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