An interesting WIPO decision suggests that acceptance into a company’s affiliate program while using a confusing similar domain might prove that the trademark holder recognizes the affiliate’s rights to the domain.
Out-Law picked up on the case of Skyp.com, a domain similar to internet telephony company Skype. A WIPO decision brought by Skype against the owner of Skyp.com found in favor of the respondent. Normally this would be a no-brainer decision in favor of the trademark holder. But two issues came into play here. The first is that the registrant of Skyp.com registered the domain prior to Skype launching. No biggie there; that’s a common finding. The second is that Skype accepted the respondent into its affiliate program using the Skyp.com URL. The abitrator found that Skype’s acceptance of the Skyp.com domain owner into its affiliate program suggests that Skype recognized the respondent’s rights to the domain.
It is unclear how the aribrator would have ruled absent the registration occuring prior to Skype’s launch. But this is an unusual case that could have ramifications going forward. Expect affiliate program managers to start screening applicants’ domain names with greater scrutiny.
(On a side note, I recall an issue during the internet bubble in which one company accepted an affiliate into its program that was using a URL similar to a competitor. This still happens frequently).
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