Destructive reaction: can I make a harmful message disappear? (cont’d)
(e) Can I obtain the removal of a harmful website or domain name?
The most radical solution to counter a harmful message is to target the whole website or the domain name through which the website is made accessible. This solution should only be favoured in cases where the harmful message permeates the whole website or where the domain name contains the harmful message.
If the domain name contains the harmful message (e.g. ‘janssensquidam-sucks.be’), the company can also launch another procedure, a domain name dispute, which will allow it to obtain the transfer or the cancellation of the domain name (cancellation is not recommended, as a cancelled domain name can always be re-registered by any third party, even one acting in bad faith). Though the procedure may differ slightly depending on the extension (.be, .com, .org, .me, .xxx, etc.), it will generally be required for the company to prove that all of the three following conditions are met:
- the relevant domain name is identical to (or resembles to the point of confusion) the name (company name/trade name) of the company or its trade mark,
- the domain name holder has no rights or legitimate interest in relation to the domain name, and
- the domain name has been registered and/or used in bad faith (e.g. with the intent to cause harm to a third party) [Note: See for instance the Terms and conditions for domain name registrations under the “.be” domain operated by DNS.be (available online).].
It is worth noting that many domain names ending in ‘-sucks’ were allowed to remain in use due to the fact that all of the requirements must be met: even if the domain name is identical to or strongly similar to a trade mark, the owner of a website that criticises a company can have a legitimate interest in using the domain name [Note: See WIPO Arbitration & Mediation Center (Administrative Panel), Full Sail, Inc. v Ryan Spevack, case D2003-0502, 3 October 2003 (available online).]. Nevertheless, if the domain name is used to create confusion between the company and others or to redirect web users to competing or other commercial solutions, one may argue that there is no legitimate interest and that the domain name is used in bad faith, such that the transfer or cancellation request must be well-founded.