Crucially, Benjamin Decraene of Belgium registered the name
before Skype had launched and long before eBay paid $2.6 billion
for the company. Skype.com was registered in April 2003 and its net
telephony service began four months later; but Decraene registered
Skyp.com in May 2002.
Skype asked the World Intellectual Property Organisation (WIPO)
to remove the name from Decraene, who accepted that the names were
confusingly similar. But Skype struggled to show that Decraene had
no right to keep the name.
The website at Skyp.com consists of one page that promotes and
links to Skype.com. In many domain name disputes, this would
suggest bad faith, perhaps an attempt to profit from
another's brand through typosquatting.
But WIPO panellist Anders Janson found that, by accepting
Decraene as an affiliate, Skype "could perhaps be regarded as
having recognized [his] rights and/or legitimate interests."
The company's affiliate programme provides graphics that
affiliates can use on their sites and send traffic to Skype.com in
exchange for a commission of 5–10% on visitors' purchases of
Skype's premium services. Decraene signed up online.
The strongest arm of Decraene's argument was his early
registration of the name. "This fact", wrote Janson, "together with
the fact that the Domain Name was and is used by [Decraene] without
objection from [Skype], may … be enough to conclude that [Skype]
has not proved that [Decraene] has no rights and/or legitimate
interests in the Domain Name."
Skype was similarly unable to prove bad faith registration and
use.
Skype may yet turn to the courts to argue its rights in
Decraene's domain name. It might ask a court to rule on trade mark
infringement, passing off and, if applicable, claim a breach of
contract.
The WIPO case report does not say whether Skype alleged breach
of contract. The affiliate contract at Skype.com today forbids
affiliates from registering domain names similar to Skype's or
using its promotional materials on a site that uses Skype's trade
marks in its domain name. The contract may or may not have been
different when Decraene signed up.
Decraene was unavailable for comment at the time of writing, but
his original registration appears to have been in good faith. His
subsequent use of the name has also been interpreted by WIPO as
being in good faith – albeit a practice that others might consider
to be typosquatting.
It is not known how much traffic Skyp.com receives, but
Skype.com is among the most popular destinations on the internet.
That makes any misspelling a likely source of significant traffic.
Fifteen percent of internet traffic is said to be type-in traffic –
i.e. people don't search for what they want; they simply type in
the name and add '.com' (see the Business 2.0 article below for
more).
David Woods, a technology lawyer with Pinsent Masons, the law
firm behind OUT-LAW.COM, said: "If someone was running a site at
Skyp.com that hosted Google AdSense adverts to make money from
those who wanted to know about internet telephony, Skype would
recover the name from that person in court or before WIPO with
relative ease."
He continued: "But Decraene's use of the domain name to profit
from Skype's own affiliate programme is cunning, perhaps
unwittingly. It makes it difficult for Skype to eject him, unless
it can show a breach of conditions to which Decraene agreed – which
goes to show how vital it is to have watertight conditions for
affiliate deals."
