Activision has won a legal dispute revolving around the modernwarfare3.com domain and will be taking ownership of it.
Miami, FL resident Anthony Abraham had purchased the domain on July 11th and used it to redirect to the page for Electronic Arts’s upcoming and competing shooter, Battlefield 3. Activision filed a Uniform Domain Name Dispute Resolution Policy (UDRP) complaint with the National Arbitration Forum, who is authorized to handle ICANN related disputes, four days later. On July 19th, Mr. Abraham’s name was identified as the registrar of the modernwarfare3.com domain, GoDaddy, removed their Domains By Proxy service as part of their policy in dealing with UDRP issues. Yesterday, Activision won their dispute.
The modernwarfare3.com domain was originally registered on March 26, 2009, according to a WHOIS search of the domain.
The key crux of Activision’s case was that Mr. Abraham was using the name as a direct attack against their Modern Warfare franchise by aligning the domain with the competing Battlefield 3 shooter.
It appears that the Respondent supports the game Battlefield from the game developer Electronic Arts (“EA”). EA is one of Complainant’s principal competitors in the video game industry, and Battlefield game competes in the marketplace with Complainant’s MODERN WARFARE games and its other military-themed shooter games in the CALL OF DUTY series.
Mr. Abraham has defended himself by calling his site a parody of Modern Warfare 3. The domain has also hosted a comedy video called “Modern Warfare 3 Sucks.” Currently, the domain is empty.
Analysis: It’s quite easy to be reactionary and go after Activision for beating up on a poor, defenceless guy who was just having some fun with a domain that Activision should have bought themselves, but the correct ruling was made here. This isn’t the case of someone claiming their right to space first (like, if I had bought the gamingbus.com domain before another company named Gaming Bus, or who used those words as a trademark, had the chance). Mr. Abraham was directly using Activision’s trademark to do them harm and was directly helping EA, a company that has not been shy about attacking Activision over the Battlefield versus Modern Warfare rivalry. The best example I can think of in a similar case would be someone who bought Wayne Rooney’s domain while he was still a youth player at Everton and then profiting off of searches for the name. In both cases, the registrars were squatters and had no legitimate right to the name.
Just because the right decision was brought out doesn’t mean that the process isn’t ripe for criticism, however.
First off, I’m hearing people around the Internet saying that Activision “finally” won, after almost two months. This is remarkably quick for an ICANN issue, which take forever mostly. It hasn’t been confirmed, but a large part of why this was addressed so quickly is because Activision is a huge company, and this was a high-profile case. Another thing to remember is that while Activision “only” paid $2,600 for this request, the majority of disputes like this involve people much smaller, to whom $2,600 is a month’s take-home pay. I make good money, and I couldn’t afford a dispute like this.
Secondly, GoDaddy must be kicked—hard—for their policy of just ignoring someone’s privacy. People sign up for Domains By Proxy and other similar services to protect their privacy against everyone (Dreamhost offers a similar program, but it’s free and I don’t use it; all of my domains are registered under my full name). The fact that they’re so cavalier about giving up the name of a guy who pays for the service—via a publicly searchable WHOIS lookup, no less—is disgraceful. Flat-out, GoDaddy is perpetuating a scam and, according to ZDNet’s Scott Raymond, has been for years.
But most importantly, I find it embarrassing, and even negligent, that a regulatory group like ICANN is mediating through a privately owned organization like the National Arbitration Forum (NAF), and especially embarrassing that they do so even considering that company’s history. Simply put, it’s nothing more than a pro-business front business that provides little actual mediation. In fact, there have been many (PDF) examples of the NAF showing bias towards companies that employ them specifically to “mediate” issues between them and consumers, to the point where Congress has tried to get involved. Some companies even force customers and employees, through contracts that they must sign for either business or employment, to go through NAF mediation on disputes, which has caused consternation with women in the workplace who have tried to file sexual harassment claims. In short, it’s nothing more than a front organization for big business. Even the mafia was more upfront than this, and it’s humiliating that a so-called government organization is so tied into private business.
So yes, Activision won, and won justly. But if another company goes after someone who isn’t being as brazen as Mr. Abraham was, the end result is not likely to end with proper justice.