Michael Coulston has clearly been a thorn in the side of Ryanair for some time but although the airline was successful in its claim to recover the domain name ryanair.org.uk, it has failed in its bid to stop Mr Coulston, an aggrieved passenger, from using the domain name ryanaircampaign.com.
From a consumer's perspective, the WIPO decision opens the way to anyone with a grievance creating what has become known as a "- sucks" site (or a "bitch" site as The Register puts it) and to be able to publicise its claims provided they are lawful. And its a warning for any business that falls out with a customer as to what might happen.
Legally, the two cases are interesting. By way of background, Michael Coulston once had a bad experience travelling with Ryanair when his luggage was lost and his holiday ruined. According to the decision of the independent expert in the Nominet Dispute Resolution process Mr Coulston has since "devoted considerable time and energy to publicising what he preceives as deficiencies in the way in which Ryanair deals with problems and complaints by its customers."
Ryanair has used the name since 1985 and it is undoubtedly well known in the UK and Europe. The company actually owns several registered trade marks consisting of or containing the name Ryanair and it has registered various ryanair domain names, although not, it must be said, ryanair.org.uk.
That was registered by Mr Coulston in September 2003 and he used it to promote his "Ryanair Refund Campaign". Nominet, the domain name registrar for all UK domains, received a complaint from Ryanair in May 2006 and the matter was dealt with by Anna Carboni, one of Nominet's "independent experts". She found that the registration of the domain name was an "abusive registration" taking the view that Mr Coulston had registered the domain ryanair.org.uk "in manner which took unfair advantage of and was unfairly detrimental to Ryanair's rights" and ordered the domain name to be transferred back to Ryanair.
The decision appears to be fair one although I would question her assertion that "someone who types in the address ryanair.org.uk (into a search engine) is likely to expect to be taken to a website operated by Ryanair". I would be surprised if any major airline, or any commercial business operated using a .org domain name.
Mr Coulston was not deterred by the Nominet decision and on 29 July 2006 he registered the domain ryanaircampaign.org. Ryanair then took its complain to WIPO (the World Intellectual Property Organisation) and its lawyers, Howrey LLP invoked the arbitration procedure claiming the name was either "confusingly similar" to Ryanair's trade marks or alternatively, that Mr Coulston's website did not amount to "fair and honest criticism" and that the domain name had been registed in bad faith.
Clearly the critical difference between the two adjudications was the use of the word "campaign" which David Bernstein, the Sole Adjudicator in the WIPO process, felt distinguished the domain name.
"If a domain name used for a criticism site combines the trade mark with appropriate other elements (as contrasted with a domain name that is indentical to the trademark) a legitimate interest may be found if the respondent (i.e. Mr Coulston) has used the domain name in ways designed to avoid deception and undue confusion. That is the case here".
Mr Bernstein took the view tha the domain name had not been registered in bad faith and Ryanair's complaint was denied. His decision, in full, can be found here.
Mr Coulston's campaign which is to be found at www.ryanaircampaign.org continues.
