The Universal Tube & Rollform Equipment Corporation, operator of uTube.com, has not only taken YouTube to court, it’s also decided to capitalise on the likeness in domain names. uTube is a manufacturer of steel products, in particular, stell tubes! And as YouTube’s popularity grew, so too did people accessing uTube.com. This caused an increase in the bandwidth they required, and hence costs.But now when you go to uTube.com, at the top of the page you find links to a range of sites such as “Win the Lottery” and “Meet Christian Singles”. Kevin Fayle, an attorney, writing in The Register reports in 2005 uTube.com received 1,500 visitors a month. But now there are roughly 70,000 per day, including me today. According to The Register, uTube “alleges that this caused its web host’s servers to crash, which disrupted its business and sullied its reputation. It also claims that bandwidth overages bumped its hosting fees from $100 a month to $2,500.”So they added the advertising, and these links now pull in $1,000 a day or more, according to The Register. In the court case, uTube is asking “for monetary damages, as well as injunctions to stop YouTube’s operation and for the court to transfer the YouTube.com domain to uTube.While some of uTube’s claims have been dismissed, others haven’t and the judge “gave uTube permission to amend its complaint to see if it can revive any of the dismissed causes of action.” The Register continues “the court said that uTube didn’t have a case for trespass to chattels, since some physical contact with an object must be involved for such a claim to go forward. Domain names aren’t physical objects, the court argued, and uTube used a third-party hosting service, so it couldn’t claim ownership in the computer equipment that crashed as a result of the influx of visitors.”Moreover, the court continued, the visitors to the site were the ones that ‘violated’ the site, so YouTube itself wouldn’t be liable even if there had been a trespass.One of uTube’s nuisance allegations has been dismissed, “since nuisance claims must involve land, and uTube had not shown that a domain name, website, or host server somehow constitute real property in any way.” I find this quite interesting, and maybe this will be one of the important decisions to come out of the case.Eric Goldman writing in Circle ID picks up on this point, noting to him it’s also the most interesting point.Goldman notes that in this case “we’re talking about a smaller possessory interest than conversion, and the court rightly understands that [trespass to chattels] TTC could become a bypass to trademark infringement. As a result, this decision channels unhappy domain name owners towards trademark claims instead of some TTC bypass.”Goldman then notes “Even if the domain name itself can’t be trespassed, the plaintiff can still claim that the computer servers attached to the domain name were trespassed.” The court dismisses the claim for two independent reasons:
“1) The plaintiff uses a third party web host, and the court says that the plaintiff didn’t allege an adequate possessory interest in its host’s equipment.” Here Goldman questions whether as he pays a nominal amount for bandwidth charges associated with his domain name, should he bear a cost for a third party trespassing his website and he bore the economic consequences from bandwidth usage, then he should be able to claim TTC even though he only ‘leases’ the computer space and shares the computer with other sites.” I agree with his view that “perhaps this warrants more thought.” Goldman gives a more detailed explanation in the Circle ID site.
“2) Independently, the court correctly says that YouTube’s customers, not YouTube itself, are “contacting” utube.com, and therefore YouTube isn’t committing the actus reus. This result also appeared to be designed to channel this complaint into trademark law.”The Register notes this case is unlikely to succeed, and with my limited knowledge of the law, I’d have to agree it “seems laughable that a court would shut down YouTube or strip it of its domain name, since the relative detriment to YouTube would greatly outweigh the benefit to uTube.”And finally, The Register notes “Oh, wait – YouTube still doesn’t have a solid revenue model, does it? That could change things a bit … Maybe they should try selling ringtones.”For more detailed stories, see the stories on The Register or Circle ID.
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