By Richard Menta - 5/20/01
What do you do when you have created a business with a few million users, build up a recognizable brand name and then lose that name. That is what happened Friday to file trading software Aimster. The National Arbitration Forum (NAF) ruled the "Aim" in Aimster violates America Online's trademark and the company must relinquish several domain names to AOL including Aimster.com.
Losing its domain name is catastrophic for Aimster who in the wake of Napster's legal troubles has seen considerable traffic driven to its site. Free press coverage as a Napster alternative has built up Aimster's name recognition significantly. Now it looks to be stripped of what it has watch grow.
Aimster rides its file-trading program over the AOL Instant Messaging (AIM) service, hence its name. AOL/Time Warner were never happy with the way that Aimster built its programming to do this. Rather than sue the file trading company for copyright infringement, an act that can take years in court and possibly serve to promote Aimster like the Napster trial promoted Napster, they came up with a smart idea.
Instead AOL/Time Warner chose to go after the Aimster.com URL, using the same tactic used to strip cybersquatters of trademarked domain names. Using the NAF to arbitrate, the tactic worked.
The NAF concluded in its mediation that "Aimster could not include the AIM trademark in its domain names without infringing on the goodwill created in the name by America Online".
"These domain names were intentionally selected ... by the respondent due to their high degree of similarity to the complainant's marks and hence for their potential to mislead the complainant's users" said NAF representative Peter Michaelson.
The NAF is one of the world's largest neutral mediation services who do a heavy business in handling domain name disputes. Composed of a network of former judges, litigators, and law professors the forum is well versed in law using experts in particular fields to arbitrate between disagreeing parties. The courts respect the mediation efforts of arbitrators and frequently call upon them to settle differences before trial.
Aimster now has a choice. They can continue this fight in court or change their name. The courts may not be the most hospitable as they will consider the NAF's logic when making their decision, a big advantage to AOL. If Aimster changes their name, they need the Aimster.com URL to help promote the new moniker. AOL therefore has every incentive to strip them of their URL quickly as that will most hurt the young company's chances for survival. Aimster can also choose to go to court just as a stalling tactic to delay the inevitable and hold the URL long enough to use it to advertise a name change to the public.
That is assuming that the Internet Corporation for Assigned Names and Numbers (ICANN) doesn't strip Aimster of its URL's based on the arbitrator's findings. They have the discretion to do that immediately and shift the domains to AOL's care. AOL can then benefit from Aimsters steady traffic flow, probably feed it this summer into the web page for the upcoming MusicNet P2P service they have partnered in with RealNetworks.
Which means some people will think Aimster's new name change is MusicNet, something that puts the company even further behind the 8 ball. Talk about a big win for AOL. It was a clever move and some sharp person on AOL's legal team earned a healthy raise for this one.
Along with the Aimster.com URL, the company must also turnover the a1mster.com, aimstertv.com and aimstertv.net domains to AOL.
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