In Germany we had the case of Dr. Andreas Shell who spent five years fighting Shell oil company.
He had registered shell.de and used it primarily as a family website but also offered a translation service [1].
The case went to the Federal Court of Justice (German: Bundesgerichtshof, BGH), the hightest court in the system of ordinary jurisdiction in Germany. Andres Shell lost and the reasoning was that the "First Come, First Served Principle" can be overruled by the "Priority Principle", which says that the better known party has priority.
I can understand the ruling. If you read "shell.de", do you think of Andreas Shell the attorney or Shell the mineral oil company? The name has been trademarked for eternity, why should trademarks used as domain names be treated any different? Anyone can use a name, but only for the thing it represents, German law has always been applied that way.
The edge case is Deutsche Telekom and their sprawling claim on magenta, not this.
Because the Internet wasn’t created for trademarks. People can have the same name as a trademark, which likely goes back much further before the trademark was created.
Well, suppose your site is "foobar.de" and you have been running a business from it for 10 years, and tomorrow, a rich man spends 100 million euros on advertising his new business Foobar Inc, and is overnight the better known party -- what kind of backwards legal system would hold that money trumps all other rights? First come first serve makes more sense, so long as it's not trademark infringement (i.e. he's not selling oil) on a preexisting trademark.
The pragmatic approach would be for the smaller party to change names. This actually happened. Google couldn't operate Gmail under that name in Germany because a direct mailing company had registered it before and had been operating under that name for years. Eventually the domain changed hands, but that was only sometime after 2010.
Pragmatic for the rich only. The disadvantaged party now has to foot the bill for changing names and thereby losing customers who may not again find them. Why should a society give that sort of obsequious deference to the wealthy? What benefit to we gain? It's not as though shelloil.de or the German language equivalent would be so hard to find, or cost them any money or business at all, since no one goes to shell.de to buy oil directly -- it's pure vanity and cost some man his moral right. It's disgraceful.
I would not want to live in a society where being rich gives you more rights, not just in practice, but in law, if that's in fact the case.
Further, I scoff at this concept of pragmatism. Life is more than pragmatics, pragmatism can easily become a synonym for cruelty, as it has in the past, whether that's consumer safety, government funded medical, animal welfare, or any other situation that was previously dictated by economic pragmatism, to the detriment humanity.
In America they just ruled that URLs were property and therefor could not be stolen. Never understood why the plaintiffs didn't just steal the judges' phone numbers.
The nissan.com website is, at a glance, a funny curiosity of the 1990s internet, something that seems silly at first. But it was a much more personal fight for Uzi Nissan, and a worrying reminder of how much a big company or anyone with a lot of power and money has over someone who doesn’t—right or wrong.
Yeah, something is wrong with the US legal system. The case could have been dismissed at the outset. He owned the name; his was a computer company, theirs a car company.
Technically they were called Nissan but not in the US.
Yes the US legal system is indeed messed up. Lots of Pyrrhic victories out there. Read about the USFL vs NFL case. The USFL actually won their anti-trust lawsuit against the NFL behemoth —- three dollars.
That one troubled me personally as that shut down the only professional American football team I rooted for as a kid :-/
Interesting fact: Donald Trump was a USFL team owner. I’m guessing he lost a lot of money on that.
On the note of Trump owning a USFL team, Trump has been accused of having a grudge against the NFL because the NFL actually refused to let him buy a team.
To try and get a team, he bought a USFL team, and then pushed the USFL from the spring/summer to the fall/winter season and starting the lawsuit against the NFL, in the hopes that he could force a merger with the NFL.
He acted like a massively spoiled baby throughout the entire situation.
I've always viewed him through that lens. The way other involved businessmen and the fans / people who cared about the general health of professional football as a whole (because they wanted to preserve a form of entertainment / ensure the future of pro football for whatever reason) view him. I've seen that same song and dance repeat ad nauseam in all sorts of different markets and situations he has his grimy hands in.
Nissan is the Hebrew name for the current month (Hebrew calendar, first month of the spring, usually falls on March/April).
I think it is first mentioned in the Bible, the old testament, Nehemiah, Chapter 2:1
"And it came to pass in the month Nissan, in the twentieth year of Artaxerxes
the king, that wine was before him: and I took up the wine, and gave it unto
the king. Now I had not been beforetime sad in his presence."
So, sure enough, his ancestors owned the name "Nissan" much before car maker was founded.
Jews traditionally didn't have last names, but instead referred to as the son/daughter of their father, e.g. "Moshe ben David" or "Sarah bat David".
In the past few hundred years, European Jews were generally forced to take fixed surnames. It's unlikely that Nissan was used as an actual surname at that point without any explicit patronymic. It's more likely that it was a father's first name, converted into a surname upon moving to Israel.
The vast majority of Afghans traditionally didn't have last names either. If you look at the Tazkira (Farsi/Dari language government identity document, it's an A4 sized single piece of paper that serves as combination birth certificate and primary government ID), it has the person's name, name of father, name of grandfather on it. Legally people are known as something like Showaib, son of Ahmed.
A lot of Afghans who have emigrated to foreign countries have created their own last names from something related to their family, geographical area/tribal affiliation, etc. There are also people who have not done this and their name printed on their passport is a double of their first name, so you have people named "Jawad Jawad".
Interesting question (tough it is completely irrelevant to the case).
As far as I know it is an “old” name not a “refreshed” one.
According to [1] it was adopted as a first name in the Middle Ages, specifying the time a boy was born, and then became a family name (via A son of B).
I actually encountered his story in the early 2000s and I have refused to buy Nissan cars ever since. Almost compromised once or twice but No. I’m just one person but we are all a bunch of one persons, and we can all together make a difference :-)
Interestingly this issue seems to matter less and less as everyone I have observed goes to websites now via Google. So they don’t go to Nissan.com first, they Google Nissan and go to the first link. And NissanUSA.com is indeed the first non-ad link when I searched just now.
Feel but not understand. Instead, every time you buy a Toyota/Honda/whatever, take a picture of you at the dealer picking up the car and send it to Nissan explaining why you bought from their competitor. Point to a website explaining the larger story. If that’s your thing. I’ve never owned a Nissan, but to me things like Chevy’s refusal to fix faulty ignition switches for nearly a decade that resulted in many fatal accidents is a better hill to die on.
I don't get why it's assumed a domain name belongs to a company. The internet wasn't built to be a sales machine hell I remember when I saw my first ad on a website (law firm) in the early 1990s I was surprised and disappointed.
Even Twitter or any social media clawing back a name should be disastrous for a website desiring people to use it.
My username on a social media site is often confused or assumed to be an Australian comedian and radio host. I'm waiting for the day my name is taken. I know I don't own the name or the site but it's poor service to do such a thing.
I get why you would want some protections built in. If I registered Google.co.uk, and I don't have any legal basis on why I should own said domain, that domain should be transferrable to a valid trademark owner.
But if I'm called James Nissan, and I manage to register Nissan.com, then I shouldn't be forced to hand it over to Nissan the company. But they can buy it, sure.
Even the word Google had a rough beginning since the words Googol and Googolplex are trademarked/copyrighted(?). They were invented by mathematician Edward Kasner who fought to prevent Google from using a very similar word.
I don't understand how anyone can look at this story and think that we live under a "rule of law". Our rights and freedoms are only available to us if we're willing to pay top dollar for them. To the tune of $3M in this guy's case.
If we really want to believe that justice is available to all, we need to push for universal legal insurance, something akin to Medicare, so that everyone can afford their day in court against a MegaCorp that's trying to muscle them out.
In the UK, Australia and Canada, courts award costs. This usually goes against the loser, but might not if the judge believes the winner held a correct but frivolous position. It seems to be a pretty good mechanism. In particular, it does not lead to the situation where the little guy wins the case but is destroyed by the cost of the fight. I am surprised it is not more widespread.
The biggest issue to me was he was running car ads to make money. If he had only been running his computer business under the brand name, would have had a lot less trouble. But those car ads probably made good money. Can't find any old data, but car clicks would probably have been in the dollar range, 500,000 visitors a month, not bad money.
While I appreciate his principles, it seems downright stupid to me to turn down, say, an offer of $15 million dollars for the domain. He seems so concerned about his business but with $15 million in 1999 dollars he could have retired quite comfortably.
That was his (off-the-cuff) asking price, not their offer. They should have countered at $10M, and then paid it -- they would have saved money in the end, and had the domain they wanted to boot. But no, they thought it was theirs by right, or something.
Funny. A similar thing happened in Japan in 90s, when a then-notable search engine goo.ne.jp sued a porn site, goo.co.jp. The search engine won the case.
A massive failure of the court system and yet more proof, despite Nissan Computer winning, that money wins in the end, even when the case is lost. Why this wasn't thrown out immediately is beyond logic. The lesson for aspiring business owners is that big money will hurt you even if you're in the right and it's not even worth trying. I guess that really is the business lesson everyone needs to learn today. Don't go against the big guys because there, even winning is losing.
Nissan Motor didn't win. They don't own the domain. Who can quantify the millions and millions of lost revenue and brand tarnishing that resulted from people reading about this story or accidentally visiting nissan.com
In the end, Nissan Motor should own the domain and Uzi should have been fairly compensated - i.e. they should have paid him the $15 million he initially asked for.
Right, they didn't win the court case. But their company wasn't ruined like Nissan Computer was by the lawsuit. For fighting this case that they knew they were in the wrong of, a case they knew they'd lose, if Uzi fought them, they deserve every last bit of negative advertising and lost profits. Uzi didn't want to sell. If they had been better at their business, they should have grabbed the domain name first, but Nissan Motors was late to the market and lost out. If they hadn't been a giant corporation, no doubt the case would have been thrown out or settled, but they used the money to bully Uzi. They deserve what they got. And the rest of us deserve to have a court system that works for non millionaires ... But that's just wishful thinking.
And it cost them. I'm not on Nissan's side here. They should have engaged Uzi in a good-faith negotiation. In the end, I think he would have sold for something - because that would have been the right thing to do. Not only because it would have made financial sense for him to do so, but because the branding value of the domain is so high for a multi-national/multi-billion dollar corporation compared to a small mom and pop outfit that it approaches at least an ethical consideration. But they didn't do that, and all sides are worse for it.
While it’s unfortunate that the US legal system is very expensive to participate in, and this is something a lot of larger litigants use to their advantage against smaller litigants, the truth is this guy could have transferred over the domain and walked away at any time. If he bankrupted himself in this fight he has himself partially to blame.
He is not to blame at all. This lawsuit should have been dismissed immediately. Do you think he would have had a chance to sue Nissan the company because it used a domain with this last name? It just shows that the system is rigged for the big guys.
What would you think about a compromise solution to the situation as the domain nissan.com becoming an index page for the both parties?
A link to both nissancomputers.com and nissanusa.com could have been displayed there side by side along with their logos. Their sides could switch each day, to prevent any sort of prioritization.
Maintenance could be done by anyone. Changes on the index page could require consent of the both parties.
The index page could include a checkbox, or after-choice-prompt to allow the users to have their browsers automatically redirected to whichever site whenever they visit the nissan.com again. It would then be like nissan.com belongs to both of them, wouldn't it?
As a sentient being, I also feel the urge to support an individual against a company. And I am sure that finders-keepers is an intuition ingrained not to just humans, but to the whole nature.
However, as I try taking this not-personal, and resolve this more logically than just sentimentally, it becomes really hard to make any sense of the fact that the domain nissan.com belongs a company that almost nobody knows (Nissan Computers), when a significant fraction of the human population would (falsely) assume that the domain belongs to another company (Nissan Motors) to which they might even try to reach by directly typing "www.nissan.com" on their browsers' address bar, without even searching for it on Google/Bing/whatever.
In the end, the fact that http://nissan.com/ points to somewhere else than Nissan Motors Company's (NMC) website is even detrimental against the overall experience of the Internet's users. Almost nobody heading to that website expects to see some place else than NMC's website. Even Uzi Nissan would be very much unhappy about it, if it was not a website visit, but a phone call. It is like a constant wrong-number situation.
They can buy it for what its worth to them, as a brand. Thats the nature of First Come First Served domains, with equal justification. Just because Nissan is big, does not mean they own the name entirely, over anyone else's prior rights.
It was certainly worth as much as the legal cost to Nissan motors. Why should Uzi Nissan be denied that implied value? Whatever else, it certainly wasn't domain squatting as I understand it.
I had the impression that Uzi Nissan did not want to sell the domain regardless of the amount they would offer. The article says he told the following:
> “Fifteen million dollars. Do you understand right now that I don’t want to sell?”
From the manner of speech, I think he said a random large amount, not that he had any intention to sell the domain.
He didn't expect them to be willing to pay that kind of money, and he was right. But if they had countered at $10M or even $5M, and waved a check under his nose, do you really think he wouldn't have taken it?
If you don't support the government forcibly reappropriating land from individuals for corporate projects, then you shouldn't support domain reappropriation either.
Probably an unpopular opinion here, but I’m with Nissan the car company on this one. The general public expects visiting nissan.com to take them to a website selling Nissan cars.
So the moment another company becomes popular they have automatic rights to your existing family's business domain name? Is it only domain names they have to rescind ownership of, or should they also be forced to change their business name and dispose of any existing branding, signs and marketing materials they have?
What's the family business then meant to do, cease operating their family business under their generations-old family name?
> So the moment another company becomes popular they have automatic rights to your existing family's business domain name? Is it only domain names they have to rescind ownership of, or should they also be forced to change their business name and dispose of any existing branding, signs and marketing materials they have?
None of that other stuff is relevant to domain name. The "Amazon" camping shop in Pikesville, Ky doesn't need to change its business name (though they probably should if they set up shop in Washington state).
> What's the family business then meant to do, cease operating their family business under their generations-old family name?
No, just take another domain name. Millions of people have probably landed on nissan.com while trying to research a car, and been confused and frustrated in disbelief. And this is because one guy with the name "Nissan" beat them to the punch in the early domain-name grab. He could have just as easily taken uzinissan.com and enjoyed his 11 hits a month on that domain.
So? Let them be confused and frustrated. The world's not going to end. Big corporations have enough advantages without giving them rights that ordinary folk don't have.
Say that I am a mediocre violin player. But I happen to own a rare Stradivarius. A rich and successful violinist writes to me and asks to buy my violin. I refuse his offer. So he sues me, and says to the court that because he is so famous and so technically adept, the violin should rightfully belong to him. Is that fair?
So an already small company should change their domain, and potentially lose customers as a result, just because a larger company wants to use it?
> beat them to the punch in the early domain-name grab
That is to say he owns the domain. A third-party have a better use for it doesn't define ownership.
> He could have just as easily taken uzinissan.com
It was initially registered due to company names that contained "Nissan" -- registering using a full personal name doesn't make much sense in that case.
And it's rightfully unpopular. General public expectation does not define ownership. As long as the owner doesn't try to impersonate the Nissan car company, there is no problem.
I expect nike.com to tell me about the Greek goddess Nike but what do I get when I go there?
There was a similar lawsuit in France over some lady named Milka who had milka.fr and she lost probably because she didn't have millions to blow on the lawsuit. They didn't bug me when I bought milka.eu (or something similar, it was a while ago) after reading the article and being drunk at the time decided it was a good idea to use it to host one of the wonderful pictures I took of a Lenin statue while in Budapest. Probably not worth the effort since it was pretty obvious I was just trolling them.
The general public probably also expects a guy with the name Nissan to be the owner of the company selling cars under his name. The available namespace is limited and sometimes the expectations of the general public are wrong. https://firefox.org/ isn't owned by Mozilla either.
One of my old bosses had a company named United Healthcare registered in my state. Guess who had to just accept it, yeah the big UHC. He spun it down decades ago as he sold it and all the associated businesses off to another large healthcare company.
The lesson here is to be cooperative and nice to people, with this being a two way street. Neither Nissan was nice.
Nissan the company could have asked nicely before going in heavy with the lawsuit.
Instead of the lawsuit they could have played the long game and just bought the better URLs - nissan-cars.com, nissanUSA.com, nissan-usa.com, nissan-colorado.com, nissan-kentucky.com and just buried the problem that way.
In time the domain would come up for renewal, in time the owner might give up interest in owning it. In this instance, due to the surname, it is unlikely that the Mr Nissan would just give it up, but if Nissan the company really did not appear to be interested in the domain beyond a fair but reasonable price, what could Mr Nissan do about it?
By pretending he is in a David vs Goliath struggle for freedom and democracy, Mr Nissan has proven himself to be an idiot. He could look at his computer service offerings and laugh at how unmarketable his services are. Nobody would hire him except an old grandmother using a computer for the first time ever and needing help to plug in a mouse. By no stretch of the imagination does Mr Nissan offer goods/services that befit the marketplace.
Why is this?
Because he has decided to have his petty spat with the Nissan motor company. His website is an embarrassing folly.
Another aspect of the folly is ego. If you have a common name that can be confused with other things then you don't use it in the confusable form. 'nissan-computers.com' - as proposed by Nissan was generous, 'a-b-nissan-computers.com' with some initials at the front is fine. Or you use your street name, or your cat's name. In putting your customer first why would you present a confusing business name?
The case went to the Federal Court of Justice (German: Bundesgerichtshof, BGH), the hightest court in the system of ordinary jurisdiction in Germany. Andres Shell lost and the reasoning was that the "First Come, First Served Principle" can be overruled by the "Priority Principle", which says that the better known party has priority.
[1] https://web.archive.org/web/19980204065557/http://www.shell....