AOL alleged that Aimster was illegally exploiting its AIM and ICQ registered trade marks in the names. Aimster conceded the ICQ names, but fought for the right to keep the name from which it operates its service.
The NAF panel’s decision was split 2-1. Significantly, the panel noted that Aimster’s acknowledgement that it was not part of AOL did not appear on its home page but rather was buried in the FAQs. The majority said that use of the word "AIM" in services similar to those offered by AOL would result in confusion. It also believed that Aimster had no rights or legitimate interests in the AOL owned mark. It added:
“The majority of the Panel finds that [Aimster] intentionally chose each of the contested ‘AIM’ based domain names to financially benefit from its close resemblance and ensuing user confusion with respect to [AOL’s] marks ‘AIM’ and continues to use each of those names to further that purpose. Thus, the Panel finds that [Aimster] registered and uses each of the contested ‘AIM’ based domain names in bad faith."
Aimster must now challenge the decision before a US court if it is to continue holding and using the aimster.com domain name. It was supported by only one of the three panellists in the NAF decision, who said he believed that Aimster did have a legitimate right to the name. He added:
“I... believe that the issue of confusing similarity is an issue of fact more appropriately determined in a court of law, rather than in a summary arbitration proceeding where there is no opportunity for the relevant facts to be developed and where the arbitrators must simply speculate as to whether or not the similarity would, in fact, cause confusion as to source since there is none of the usual survey evidence as would be the case in a trial. I also disagree with the Majority’s finding of bad faith, which similarly requires detailed factual information in a case like this far beyond that which can be presented to the Panel in the limited written documentation available in an ICANN proceeding.”