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|UTube Sues YouTube|
this is actually interesting!
|Universal Tube and Rollform Equipment Corp, based Ohio, says that confusion between its website, utube.com, and youtube.com is damaging its reputation and costing the company thousands of dollars. |
|Since Google announced in early October that it plans to purchase YouTube, visitors to utube.com have skyrocketed, from a few thousand per month to more than 70,000 per day, Universal Tube said in its suit. |
I wish I had that problem!
UTube Sues YouTube [pcadvisor.co.uk]
[edited by: engine at 6:50 pm (utc) on Nov. 2, 2006]
[edit reason] updated url [/edit]
|But - pretty much - the only reason Google bought YouTube was for *THE* domain name! Because the name is so popular and well known, they would profit from that. They aren't so much interested in the actual content and concept, but for users and their opinion of the place - not to forgot their visiting frequency. |
Fair enough, but its more then that- the most compelling reasoning I've heard follows:
Google's money is in advertising. Video Advertisements on the net are the future. Google's YouTube purhcase is akin to Yahoo! buying Flickr- though in Flickr's case it served as a platform for Yahoo's traditional ads.
YouTube was purchased to serve as a platform for Google Video Ads. Believe me, they'll fill YouTube with lots of short but sweet Google video pre-roll advertisements for all the videos on there. And then, assuming they can keep YouTube's popularity soaring, it'll make them plenty of money and hopefully, for their shareholders sake, sustain their current insane growth rate.
I think it's always important to remember that a small youtube was no problem to utube, but as it grew, and especially with the current massive publicity; youtube is probably causing a very real problem for utube.
It would have been nice for utube's problems to have been taken care of by youtube or google at an earlier stage. Something fair would have been a front-page link on youtube stating "looking for metal? you want utube" and "looking for videos? you want youtube" on utube.com, with free hosting thrown in.
System: The following message was spliced on to this thread from: http://www.webmasterworld.com/goog/3144591.htm [webmasterworld.com] by engine - 3:12 pm on Nov. 3, 2006 (utc 0)
I think a lawyer that knows what a gold mine the name is put them up to it. I don't think a 20 person company would think of a lawsuit like that without being encouraged by a lawyer.
I offered them $5K for the domain, and free internet consulting to move their site to another domain :-) I don't think they will take me up on their offer.
|Something fair would have been a front-page link on youtube stating "looking for metal? you want utube" and "looking for videos? you want youtube" on utube.com, with free hosting thrown in. |
Yeah this was my first reaction to this news, plus add some adsense. Make the utube homepage one of those scraper sites that is like:
Looking for Videos? Welcome
---- The Fold ---
Gee guys, I hate to say it, but believe it or not the world does not revolve around the internet. Not everybody wants to figure out how to monitize traffic.
The manufacturing company has no desire to monitize that traffic. They don't want the traffic. They want to sell the stuff they manufacture.
If a manufacturing campany dumped, let's say, 1 million bolts on your lawn by accident and then said, "well, tell you what, we aren't going to clean that up. How about you just keep them and sell them? You'll make a fortune. We sell millions every year and its not hard." I doubt you would be jumping up and down with joy.
IMO, this is one of those situations where it is wise for whoever decides to do business online to make sure they are prepared for sudden influxes of traffic from unexpected sources.
It's also a strong argument for strategic planning so you have control of the domain names that are likely to be predictable spelling variants or sound-alikes of your main domain name.
Yup, I was just thinking about that. This might spur a buying spree in u, eu, ew, etc. variants of you, for example.
I noted (with interest) that U-Haul International has euhaul.com covered. :)
UTube is doing the only logical thing they can do by suing preemptively. My guess is that they have tried to resolve the issue with Google and or the original owners of YouTube, but obviously were not able to reach an amicable agreement. If I were the owners of the UTube domain, I would have serious concerns about Google making legal maneuvers to take control of it, especially given the amount of visitors UTube is receiving. Taking the issue public will hold Google to their "do no evil" motto, and prevent any heavy handed legal attempt on their part to wrangle away the domain under the public radar. Monetizing the traffic as so many of you have suggested would be extremely risky, why take the chance.
All in all I think UTube is playing a very strong hand. Now that the genie is out of the bottle, I'm sure Google will move fast to seek a reasonable solution, as I'm sure stock holders will be raising an unfavorable brow.
|As far as the bandwidth, think of it this way. An established company has been in a spot for a very long time. Suddenly a trendy and popular club pops up next door. So popular in fact that the visitors to he club park on the other company's property and fill up its parking lots. The company's cliets and employees can't find parking and can't get in. The people who do park there would never shop in the estabished company's store. The parking lot is getting torn up and it is costing the company money in both maintanance of the lot and lost business. |
In the offline world, that company posts notices and get police orders to keep the club goers off their property. They may even have cars towed or work out a deal with the club where the club rents the parking lot. They don't just "suck it up" and figure it is part of business.
A better analogy is that an established company has been in a location for a very long time. A new company in an entirely different business is created clear across town, but somehow, its customers are confused about the directions (because some streets have the same names in certain parts of the city, even though they are not part of the same continuous street). Some of the new company's customers demand to know why they can't find what they're looking for at the old location, tying up some of the old company's resources. Other customers, just by the sheer size of their numbers, cause congestion in the parking lot and the access roads to the old company, making it difficult for the old company's customers to get to the new business, and forcing the old company to make infrastructural modifications, such as a bigger parking lot, widening the access roads, etc.
IANAL, but my feeling is that UTube's gripe should be with the rude YouTube customers who are sending the emails. It isn't YouTube's fault that YouTube customers are confused about where they're supposed to go.
My understanding of the ICANN UDRP is that no infringement of a trade or service mark is taking place, and that no one is attempting to lure customers away from a competitor.
If anything, this is similar to the Slashdot effect of getting a link to one's site from a very high traffic site whose readers tend to follow the links.
To add insult to injury, searching for u tube in Google brings up you tube as the number-one result.
Through no fault of their own, utube.com is suffering a financial loss due to a domain name confusion that could have been predicted at the time that youtube.com was registered (assuming they new that it would become a smash-hit). This being the case, only foolish people would dismiss this case out of hand.
There are possibly several important legal principles at stake here that need to be tested/clarified and clearly stated for the future. My feeling is that this case will be settled but I would rather see it go to court so that precedents may be set.
What legal principles? AFAIK, a company cannot sue another company because its customers are confused about where to find it on the web.
Well, let's start with trademarks - if the public is confused by a new trademark into believing a relationship exists with an existing company then that is usually considered solid ground for a lawsuit. Of course, domain names are not the same as trademarks and the nature of the confusion in this case is a little different but as a whole, there is similarity.
More generally, if you start a business that negatively impacts another business (or individual) then, provided the impact is not simply the result of healthy competition, this is often considered solid ground for a lawsuit. For instance, if a super-green laundry service performed it's drying using outdoor fresh air and an indian restaurant opened up next door resulting in curry-scented sheets, that would be fairly solid ground for a lawsuit.
utube vs youtube is an unusual case. My opinion is that youtube should pick up the tab but I accept that opinions will differ. A fair deal would probably be a small youtube.com advert at the top of the utube.com home page with a one-cent click-through value
In this case, the public isn't confused by a new trademark. A subset of the public that uses YouTube thinks it's spelled UTube, so they go there instead. This could be because in some youth-oriented circles, it is common to abbreviate "you" as "u".
If I were them I'd just put some Adsense on the page and go with it...lol. But they just see an angle to get some bucks out of Google.
|And did they think that filing a lawsuit would reduce the flood of traffic? Talk about shooting yourself in the foot. |
Maybe they did it to increase the traffic ;)
Hollywood said it.
UTube is throwing away the opportunity.
Given UTube's business, I doubt they are interested in putting up ads on their site. Also, I think over time, accidental traffic from YouTube will drop, as users figure out where they're supposed to go. In this case, I think it would be a bad idea for them to convert their site to host ads.
|Well, let's start with trademarks - if the public is confused by a new trademark into believing a relationship exists with an existing company then that is usually considered solid ground for a lawsuit. |
But the problem isn't that YouTube is stealing customers from Utube, which is the cause of action under trademark law.
It also was not a registered trademark, it was only a TM. Without being registered, they cannot file a trademark action. it is now registered october 18 2006. YouTube was registered in January 2006. First use is important, but first registration carries a lot of weight as well.
They are also very different fields of business, so youtube could have a registered utube trademark without infringing on the pipe company's trademark.
In fact, there is another YouTube mark out there for some sort of lifesaving device. The company also has a utube trademark.
|More generally, if you start a business that negatively impacts another business (or individual) then, provided the impact is not simply the result of healthy competition, this is often considered solid ground for a lawsuit. For instance, if a super-green laundry service performed it's drying using outdoor fresh air and an indian restaurant opened up next door resulting in curry-scented sheets, that would be fairly solid ground for a lawsuit. |
While a lot of companies might file such a suit, it is not solid grounds to *win* such a suit. In the case you suggest, the Indian restaurant would be sued for being a nuisance. You would have to prove that they really are a nuisance beyond what they should be allowed to do. You are not likely to win that case.
If you have a new neighbor that works graveyard shift, and they mow their lawn at 3 AM, violating the town noise curfew, you have grounds to sue. That neighbor has a lot less grounds if you mow your lawn at 3 PM even though you are annoying him just as much as he is annoying you.
But the analogy with the Indian restaurant fails anyway. The annoyance is caused by the general public, not the defendant. There needs to be some sort of cause of action, in other words, they have to be doing something that encourages that behaviour.
|utube vs youtube is an unusual case. |
Since it was filed as a trademark case, it really isn't all that unusual, and they don't have much of a case.
A nuisance case might have more chance, but they would have to show negligence, criminal behavior or malicious intent. Just showing damage will not win you a case.
I did say
|Of course, domain names are not the same as trademarks and the nature of the confusion in this case is a little different |
I don't believe anything I said suggested UTube had a strong case and was likely to win, I was merely pointing out that the case is not entirely frivolous. My analogy with an Indian restaurant next to an eco-friendly laundry was stretching a point but sometimes it's hard to devise real-world analogies for internet problems.
Without a doubt, there are real issues here. People can be confused by domain names that are phonetically similar and eventually, this will have to be recognised in law. In this instance, there was no intent, nevertheless, losses have resulted - perhaps a better analogy would be an industrial accident (for which liability may exist even though there is no intent).
|perhaps a better analogy would be an industrial accident |
But there is negligence and/or a responsible party, even if there is no intent.
In an industrial accident, the company is the party that does something wrong. In the YouTube case, it is clueless customers that are the problem. If YouTube was sending people to Utube, it would be different.
A better analogy would be someone is driving a car, and while looking at the Empire State Building they hit another car. This is the third time that the person has been hit by someone looking at the empire state building, so they sue the building owner instead of the people that hit them.
If Utube had done more to try and control for this in advance, such as actually registering their trademark and buying up similar domains, there might be a chance for them.
What they should do is upgrade their hosting account from the $2.99/month up to the $10/month option which should be able to handle the traffic load just fine. It's a lot cheaper than paying their lawyer for a failed lawsuit.
|Without a doubt, there are real issues here. People can be confused by domain names that are phonetically similar and eventually, this will have to be recognised in law. |
It already is recognised in law. There were numerous discussions around this issue by the working groups that preceded ICANN. There's been no intent to deceive or any other violation of laws that are recognized through the ICANN UDRP. Basically, what has happened is a company was not fully prepared to handle its business.
|In this instance, there was no intent, nevertheless, losses have resulted - perhaps a better analogy would be an industrial accident (for which liability may exist even though there is no intent). |
How is YouTube liable? It didn't do anything to cause the YouTube users to misunderstand the spelling of its name or incite them to drive up traffic to UTube.
YouTube failed to check if similar domain names existed, or if it did check, decided to proceed regardless. That could be considered negligent if there was an intention to create a megasite or a belief that it might turn into a megasite. You'd probably need a good lawyer, a sympathetic judge and a friendly jury to make it stick but stranger decisions have been returned by courts.
We could argue this until the cows come home. I don't believe UTube has a strong case, but I do believe there are real issues here.
"This is the third time that the person has been hit by someone looking at the empire state building, so they sue the building owner instead of the people that hit them."
If you own a building and create a distraction to drivers such as something big and shiny then you may be liable for accidents. From memory there was a case about twenty years ago (UK) when a night club was ordered to black out a glass wall - I remember it because I used to skate regularly at Oxford ice rink which had similar issues.
Well, as far as my understanding of the ICANN UDRP [icann.org] goes, creating a website with a similar sounding or looking name, is not grounds for trademark or service mark infringement when every attempt has been made to distinguish the two businesses or organizations. The domain names can even be the same if the top level domain is different. If one party feels the other has committed infringement, the other party must submit to arbitration. In this case, I can't see any way that an arbiter would find infringement.
The only way I can see UTube winning this case is if they can somehow prove that YouTube somehow incited its users to drive up UTube's traffic in an attempt to get them to release their domain name. Even then, they would not likely get the rights to YouTube.com; they'd more likely get compensated for damages (extra bandwidth, help desk time, etc. consumed).
Meaning you used to skate into a glass wall?
|I remember it because I used to skate regularly at Oxford ice rink which had similar issues. |
Too bad they didn't have youtube back then.;)
Google's acquisition of YouTube, the most popular video site, reminds me of Google's acquisition of Deja.com, or the archives of Usenet, the most popular internet discussion groups. They got it to serve up their ads on usenet and build their brand as the dominant internet business.
Google, of course, bought the domain name and the archive; then ditched the domain, and integrated it into their brand, using the subdomain, groups.google.com. They could and should do the same with YouTube.com, moving it to video.google.com.
YouTube.com is an awful name. Besides the confusion with utube.com, it just stinks as a name. I hate it. It sucks like few other names of popular sites. Time to throw the POS away.
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