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The One in a Million case decided by the Court of Appeal recently will be of interest to anyone involved in the Internet industry, or those who have a Web site themselves.
In Marks & Spencer and ors v One in a Million and ors the plaintiffs were a number of large companies including Marks & Spencer, Ladbrokes, J Sainsbury, Virgin and BT.
The plaintiffs aimed to clamp down on the sale of Internet domain names and sought injunctions against the defendants (who were registering and offering names for sale), orders for the return of the names and costs.
The plaintiffs sued for trade mark infringement and passing off. Judgment was granted in the plaintiffs' favour in the High Court in November 1997 and the defendants appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal. Lord Justice Aldous said that the domain names "were registered to take advantage of the distinctive character and reputation of the marks". He described this practice as "unfair and detrimental".
In some respects the Court of Appeal took the case further. Lord Aldous ruled that, in some circumstances, the court could grant injunctions against the threat of passing off by registration of a rogue domain name rather than being able to grant relief only after its use.
Referring to rogue names as "instruments of fraud", he laid down a test to be applied. Satisfaction of the test (essentially intention to appropriate the goodwill of another) will result in the granting of an injunction.
The finding of infringement of the registered trade marks was also upheld.
The defendants intend to appeal, despite being refused leave to do so by the Appeal Court.
In my view, the Court of Appeal has quite properly followed a line of domain name cases starting with the Harrods case in 1996 and some non-Internet cases, such as GlaxoWellcome.
This case shows that the courts are prepared to grasp the issues and grant relief. It also puts an end to the view of some involved in Internet registration that the rule is "first come, first served".
When the case was originally decided some considered it to be a landmark judgment. Although the Appeal Court decision may not be revolutionary, the certainty it should bring is to be welcomed.