In a bizarre Californian court ruling towards the end of 2009, the NBA Toronto Raptors forward, Chris Bosh, was awarded nearly 800 "cybersquatted" domain names.
Luis Zavala and his company Hoopology.com unlawfully registered the www.chris-bosh.com domain name, which displayed advertisements using Bosh's name to generate revenue, but had no actual association with Bosh.
In April 2009, the court ruled that the www.chris-bosh.com domain name had to be transferred to Chris Bosh and also awarded $120 000 in damages, for the violation of Bosh's rights under the USA Federal Anti-Cybersquatting Consumer Protection Act.
As Mr Zavala had insufficient funds to pay the $120 000 damages, the court ordered Zavala to transfer nearly 800 other domain names he owned to Bosh. These domain names incorporated the names of various professional athletes, college and high school athletes as well as well known entertainers, product names and other entertainment properties.
According to Bosh's lawyer, he had no intention of keeping the domain names and would give the domain names back to their rightful owners (at a fee for reasonable expenses occasioned with the transfer).
Although this is a strange precedent, which is not likely to be followed in courts around the world, it does bring to mind a weakness in the .co.za and .com domain name dispute resolution policies. Although there are many advantages of lodging a domain name dispute with a dispute resolution provider, one of the major disadvantages of following this route is the lack of recourse against the unlawful registrant in the form of damages and/or an adverse cost order.
The lack of the risk of an adverse cost order will sometimes also lead to the unlawful registrant being obstructive and unnecessarily prolonging the proceedings (amounting to higher costs).
An application for a High Court interdict may therefore in some instances be a better option to recover your domain name back from an unlawful registrant of your domain name.
Eben van Wyk, Director, Intellectual Property
Regardt Botes, Associate, Intellectual Property