Richard and Fiona Saville-Smith failed to convince an
arbitration panel of the World Intellectual Property Organisation
(WIPO) that they registered and used the domain name in good faith.
Fiona Saville-Smith told OUT-LAW that they will not appeal.
"The ruling was absolutely unfair. Although I'm a lay person the
rules seem pretty simple, that they had to prove that we had a bad
faith registration," she said. "Their grounds for that was that we
used it to make money. We have provided extremely clear evidence
that that was not the case."
Saville-Smith, who also writes poetry under the name Gillian
Ferguson, said that she and her husband had found the whole
experience "dispiriting" and that they were extremely unlikely to
appeal.
The WIPO arbitration process will only transfer a name if the
person who requests it has rights in the name, such as a trade
mark, and the person holding the name has none, and if the person
holding the domain name has registered or is using it in bad
faith.
It was uncontested that the estate of Lewis had rights in the
word Narnia. The WIPO rules state that someone can have rights in a
term if it is making "a legitimate non-commercial or fair use of
the domain name, without intent for commercial gain to misleadingly
divert consumers or to tarnish the trademark or service mark at
issue".
Saville-Smith argued that the planned use of the domain name as
the basis for an email address for her son was a legitimate
non-commercial use, but the WIPO ruling said that the only
precedent for an email address counting as fair use was when the
person for whom the address was intended shared a name with the
domain name in contest.
Had Saville-Smith created a fan site or a criticism site related
to CS Lewis's works then that could well have been a legitimate
use, but the WIPO ruling said that such a site would have to exist
just now rather than simply be planned.
"The language of…the Policy is couched in the present tense and
unambiguously requires a respondent to be 'making a legitimate
non-commercial or fair use of the domain name.'," said the ruling.
"The Policy only concerns active websites that practice genuine,
non-commercial criticism, and only deals with fan sites that are
clearly active and non-commercial."
Saville-Smith said that on the question of the registration or
use of the domain name in bad faith she and her husband felt that
the ruling was unfair.
"As I understand it they had to prove that it is a bad faith
registration and as far as we are concerned there is no evidence
that it was a bad faith registration," she said. "We didn't sell
it, we didn't try to make any money, we didn't pass ourselves off
as anything to do with Narnia."
The panel's justification for concluding that the registration
was in bad faith was that "as prior panels have observed, when a
domain name is so obviously connected with a complainant and its
products or services, its very use by a registrant with no
connection to the Complainant suggests 'opportunistic bad faith',"
said the ruling.
The WIPO panel also said that the fact that two further
Narnia-related domain names were registered by the Saville-Smiths
after the Lewis estate complaint was suggestive of bad faith
use.
Saville-Smith, though, told OUT-LAW that the registration of
freenarnia.mobi was part of an aborted attempt to begin an online
petition drawing attention to their case.
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