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Panel Denies Take-Two Claim Against BioShock.com Cybersquatter
by Kris Graft [PC, Console/PC]
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August 25, 2010
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An arbitration panel has denied Take-Two's claim against a Cayman Islands company, which the publisher accused of "cybersquatting" on BioShock.com, a website that currently has nothing to do with games.
A panel at the World Intellectual Property Organization decided that the company holding the domain name, Name Administration Inc., is a legitimate owner of the website, which features links to topics like "Earth Science," "Biology" and "Eco Tourism."
Take-Two said that Name Administration acquired the domain name in bad faith, but the panel did not agree. Name Administration, which has squatted on sites in the past, registered BioShock.com on December 6, 2004, a couple months after pre-release impressions of Take-Two and 2K Games' BioShock made initial waves in the consumer press.
But Take-Two didn't file for a "BioShock" intention-to-use trademark until November 16, 2005, nearly a year after Name Administration snapped up the domain name. The panel determined Take-Two "has not proven the ownership of prior trademark rights to the Domain Name."
And despite pre-release BioShock previews and interviews that occurred before Name Administration registered the domain name, the panel said the articles "are insufficient on their own to establish a common law trademark right prior to the date of the Domain Name registration." The game eventually released in December 2007.
The panel added that it is "not persuaded that [Name Administration] had in mind the Complainant’s trademark BIOSHOCK at the time of its registration of the Domain Name." WIPO also said that the term "BioShock" is also not exclusive to Take-Two, as the panel pointed out that Johnson & Johnson was planning a nixed line of cleaning products called "BioShock" prior to Take-Two game.
Name Administration also previously squatted on "www.taketwointeractive.com" and transferred the domain name back over to Take-Two with no monetary demands, an act of good faith on the part of Name Administration, the panel decided. WIPO also said that the content on BioShock.com does "not seek to trade on the goodwill of the underlying trademark."
Currently Take-Two owns BioShockGame.com. The company recently announced a new entry in the series from subsidiary developer Irrational Games called BioShock Infinite, which has a website at BioShockInfinite.com.
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Also, the fact that they squatted taketwointeractive.com makes it clear what kind of business they're into. (not biology)
I'm also really unclear what the problem with "cybersquatting" is.. it seems perfectly acceptable behaviour in other fields! If I buy a parcel of land and sit on it for a couple years, knowing that company X will want to buy it in the future, that's good real estate business; if I do the same with an URL it's somehow morally wrong?!
Land is different in that you don't know who might buy it, whereas you know that Take Two are going to want their own name or the name of a software product that only they make.
And that "only they make" part matters, too. Multiple bidders for a piece of land driving up the price make it an investment. But there's only going to be one owner of a named game. The only possible reason for registering a domain that directly names something you know someone else owns is to extort money from them.
Bah. The WIPO panel was egregiously wrong. (And don't even get me started on unaccountable supranational bodies.)
It's not about taking "any domain",
it's about taking from obvious squatters, who have a blatantly useless placeholder site on the domain.
Since anyone can register an URL, it behooves companies to do so before someone else does, otherwise it's their own damn fault for not getting there sooner.
If my business relied on a steady supply of X I would sure as hell secure a reliable supply ASAP, and if someone else bought up all of the X in the world in order to gain leverage over me, well.. that's business, it's my own damn fault for not acting sooner, and I'm sure it happens all the time in other fields.