Wachovia is a provider of financial services to retail, brokerage and corporate customers and took action in July against Alton Flanders from Massachusetts over the three domain names that he registered.
Flanders used the names to direct browsers to a financial services search tool – which would send users to sites in competition with Wachovia.
When the case came before the World Intellectual Property Organisation (WIPO) panel in September this year, the bank claimed that the domain names were confusingly similar to its trade marked name. The bank also argued that Flanders had no legitimate interest in the domain names and that he had registered and used the names in bad faith.
Flanders responded that he was a disgruntled customer of the bank and that his use of the names was fair use under his constitutional right to free speech.
The sole panellist, Sandra Franklin, ruled that the domain names were confusingly similar, but added that "finding confusing similarity in 'sucks' cases does not abridge the rights of legitimate protest sites" under the rules for domain name disputes.
Franklin noted that in this case there was no protest site, or even preparations to establish one. Instead, the domain names led to rival financial products and services.
So, while some 'sucks' domains were protected under free speech rights, the mere fact of having a 'sucks' domain did not create that protection.
Instead, said Franklin:
"one must look to the content of the web site to determine if there is an exercise of free speech which allows the Respondent to rely on the fair use exception. To do otherwise would legitimise cybersquatters, who intentionally redirect traffic from a famous mark, simply through the use of a derogatory term".
In Franklin's opinion, Flanders must have been aware of the Wachovia trade mark and he therefore registered the domains in order to disrupt the business, most likely for some sort of financial gain. The registrations had therefore been made in bad faith.
Franklin ordered all three domain names to be transferred to Wachovia.