A case of cybersquatting and Facebook

Matthew Buckland published a post yesterday about the domain “facebook.co.za” and how it hasn’t been registered by the real Facebook company (which is just silly given that it costs about R100 to register a co.za domain name for the first year and about R50 each year thereafter). The only thing you see when you visit the domain “facebook.co.za” in your web browser is a Google AdSense panel so the intention of the registrant of the domain, Chris Mills, is pretty obvious – make as much money as is possible from people who navigate to the page looking for the real Facebook.

Another likely reason to register the domain is to sell it at a profit to the real Facebook company on the assumption that they might want to buy the domain for their own purposes. This is where Chris is going to hit a bit of a speed bump. According to Wikipedia, cybersquatting is –

… registering, trafficking in, or using a domain name with bad-faith intent to profit from the goodwill of a trademark belonging to someone else. The cybersquatter then offers to sell the domain to the person or company who owns a trademark contained within the name at an inflated price.

Besides being so Web 1.0, it is also potentially going to be regarded as an offensive or abusive registration of a domain name which could lead to an order that the domain be transferred to the real Facebook company if contested in arbitration. Depending on how Chris uses the domain going forward, he could also expose himself to a claim for passing off which is a form of unlawful competition which also touches on our law of common law trademarks.

Matthew’s post focuses on the illegality of the site at facebook.co.za because of an apparent infringement of Google’s terms and conditions for AdSense ads and that may well play a part but it really has nothing to do with the real Facebook company and everything to do with Google and Chris. The party most likely to be offended by this act of cybersquatting is the real Facebook company who could file a dispute with a dispute resolution body accredited with the .za Domain Name Authority over the registration of the domain and could have the dispute heard by between one and three adjudicators for between R10 000 and R24 000 (in the case of SAPIIL which is an accredited alternative dispute resolution provider).

If you are interested in this sort of thing you may want to check out the first dispute decided on this issue. Bear in mind that specific facts of the Mr Plastics case distinguish it from the facebook.co.za matter.

I just noticed this clause in the Facebook terms:

32665, FACEBOOK, THE FACEBOOK, FACEBOOKHIGH, FBOOK, POKE, THE WALL and other Company graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of Company in the U.S. and/or other countries. Company’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the Company.

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