Saturday, October 3, 2009

WIZZAIRSUCKS.COM Claims Victory in ICANN UDRP Domain Name Dispute at WIPO

Well, that must suck for Wizz Air, the Hungarian discount airliner.....

Panelist Sebastian Hughes provided an exceptionally well-reasoned and fair decision in a Complaint brought by the airliner against Texas Wizzair critic, Holden Thomas, proprietor of WizzAirSucks.com.

Although the Panelist found that, "the addition of the word “sucks” as a suffix in the disputed domain name does little to distinguish the disputed domain name from the Trade Marks, and that there is a clear likelihood of confusion between the disputed domain name and the Trade Marks", the Panel properly denied the Complaint upon analyzing the other two parts of the three-part UDRP test ("legitimate interest" and "bad faith registration and use").

The Panelist wrote on "Legitimate Interest": The Panel finds no evidence to suggest the Respondent, in registering the disputed domain name and setting up the Website, has misleadingly diverted consumers to the Website. Other than a bald assertion of tarnishment, the Complainant has not made any submissions nor filed any evidence to suggest that the Website has been set up and used in order to tarnish the Trade Marks. In any event, fair use criticism does not amount to tarnishment and is not proscribed under the Policy (Howard Jarvis Taxpayers Association v. Paul McCauley, WIPO Case No. D2004-0014).

The Panelist wrote on "Bad Faith": In any event, in all the circumstances, the Panel is of the opinion that the use of the disputed domain name in respect of genuine and non-commercial criticism of the Complainant does not amount to bad faith registration and use.

Having read and reviewed domain name dispute cases for many years, and having represented clients in numerous domain name disputes as a domain name dispute lawyer, I found the Panelist's decision to be extraordinarily well-balanced, and he applied the UDRP in a precise and comendable manner.

Good to see that free speech on the Internet has been protected by domain name law.

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