Cape judge rules on domain name

By Fatima Schroeder Time of article published Jul 27, 2015

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Cape Town –The Western Cape High Court has ruled in favour of a residential developer in Somerset West after an ugly spat with a real estate agent over an Internet domain.

Fairhaven Country Estate in Somerset West said it forked out the costs of hosting and renewing the domain name fairhavenestate.co.za while estate agent Shaun Harris says he registered and owned it.

Fairhaven took the saga to the Western Cape High Court, asking for an interdict to prevent Harris from redirecting or transferring the domain and other similar domain names to real estate company Fine and Country or any third party.

In the court application it emerged that the saga dates back to July 2011 when Harris effected the registration of the domain names.

At the time, the owners of Fairhaven were not yet on board and the estate development formed part of the Nedbank Limited distressed property portfolio.

The court heard that Harris registered the domain names because possessing the exclusive right to them would help him to secure a mandate to market and sell properties forming part of the development.

Fairhaven later bought the development from Nedbank Limited and maintained and operated the active domain, while also paying the costs associated with it.

It conducted its marketing website through the domain.

However, in January this year, it discovered that Harris was the registrant of the domain name and several other similar domain names.

Fairhaven told the court that, had it known this, it could have renamed the estate before investing so much into the brand or it could have insisted that Harris cede away the right to the names before entering into a profit sharing agreement with him.

It also argued that, since Harris allowed it to pay for the domains and the website, he waived any claims to the domain names in favour of Fairhaven and submitted that the active domain was part and parcel of the DNA of the brand and is synonymous with Fairhaven’s identity.

But Harris insisted that, as the registrant, he was the owner of the domain and enjoyed the rights to the exclusive use of the name.

Fairhaven could therefore not claim to have established any right to interdict him.

However, in a judgment handed down earlier this month, Judge Robert Henney said the only connection between the domain names and Harris was the fact that he was the person responsible for having them registered.

He added that Harris had permitted Fairhaven to use the name.

“The domain name acquired value thanks only through (Fairhaven’s) association with and due to the efforts of the applicant.

“Such value clearly fell to the applicant; as far as the outside world is concerned, such domain names are linked to the applicant.”

He said it was irrelevant that the domain names were registered in the name of the first respondent.

Judge Henney also said that the name had become distinctive of the goods and services of Fairhaven Country Estate.

“The applicant has also shown that its business has goodwill which is associated with the name Fairhaven and that its reputation would in all likelihood be damaged should (Harris) be allowed to continue to use such domain.” He also pointed out that it was clear that Harris intended to use the domain name in direct competition with Fairhaven.

“There is clear evidence that the harm the applicant seeks to prevent is reasonable,” Judge Henney said.

He granted the application with costs.

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