loses on appeal

MySpace thought it was all over when it secured the domain in February this year. A decision by Nominet’s dispute resolution service handed over the address, which previously had been owned by a small UK ISP since 1997, two years before launched. But an appeals panel has today handed the domain back to Total Web Solutions (TWS), a company in Stockport, near Manchester.

The fact that was originally used to offer email services and websites to subscribers meant TWS had insulated itself from an action for some time. But MySpace’s main argument to Nominet centred on the most recent use of the domain as a Pay Per Click website which sent visitors to a parked page with advertisements for social networking websites including MySpace. MySpace Inc says the practice started in July 2005 when News Corp took it over, boosting its fame, but TWS claims it was “at least” before June 2005.

Secondly, at issue was whether parking the domain had become “abusive” when the PPC ads changed because became well known. In the case of, the ads on the parked domain did change to “reflect the fame of”, admitted TWS, “but that had happened automatically as a result of the algorithms used by parking company Sedo.” In other words, TWS fingered the firm servicing the ads. While MySpace Inc. argued that TWS should have exercised control over the content of the adverts, TWS said this did not constitute a “change of use”.

The three-person appeal panel said they were “reluctant to place any duty on a registrant, who has merely had the good fortune (or maybe ill fortune) to register a name in good faith…” so long as they don’t exploit the situation.

There appears to be no more steps that MySpace can take within the Nominet DRS arbitration process to challenge TWS’s right to hold onto the name. So it’s the end of the line – unless there is further action MySpace can take through the civil courts.

Total Web Solutions also claims that Nominet tried to “unfairly help” MySpace by at first denying the existence of emails sent between solicitors and MySpace which may have aided TWS’s case. The solicitor who represented Total Web Solution in the case, Jim Davies, is now standing for election to the Nominet board, as he believes it’s unwise to “operate the DRS (Domain Resolution Service) from within the company.” Davies has been involved in a number of the more high profile domain name disputes in the UK recently.

Total Web Solutions’ Managing director Paul Fallon issued a statement [PDF] saying “We refused to be bullied by one of the largest media organisations in the world. This has been a very stressful case for a legitimate medium sized ISP to have to take on – but we had to defend our reputation and to stand up for what was right.”

Of course, the domain is now effectively worthless since TWS would be ill-advised to do anything with it at all now. It is currently displaying a blank page. MySpace continues to use A MySpace spokesperson declined to comment.