iBurst in domain name squabble

rpm said:
http://www.mybroadband.co.za/nephp/?m=show&id=5059
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First of domain names can not be trademarked in South Africa from what I understand.

Secondly, Iburst is a world wide used technology. Its in many other countries, so saying iburstlive.co.za is illegal, in my opinion would be saying that myadsl.co.za is illegal.

I do not see Modise Sikhosana loosing this case unless he has really really bad lawyers.

As for the people working at Iburst... this is yet another disgusting move on your part.

Modise Sikhosana, ask your lawyers to contact me if you wish to have more information, and counter arguments, I have got a real lot.
 
iBurst said that they can not allow anyone to use the iBurst name and logo as and when they feel, as they need to ‘guard against damage to our brand and iBurst as a company’.
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Not to worry iBurst, you are doing more damage to your own name than any reseller out there
 
Here we go again, did iBurst SA not learn anything from the Telkodemonopolies versus Hellkom.co.za battle?
“Yes, we have been enforcing this with all our partners who have been using these URLs without authorization for the last year. To date, our partners have been very co-operative with this process,” iBurst said about the transfer of iBurst related domain names.
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“iBurst owns the intellectual property of the iBurst brand and logo. It is a proprietary interest which we need to protect, which we are legally entitled to do,” the wireless broadband provider said.
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“By people using the iBurst name on a url, it causes confusion and may mislead the public. So, if someone is unhappy about that particular website/service, they automatically see "iBurst" and make associations to the company and its service/reputation,” iBurst pointed out.
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While someone might be confused about the difference between iburst.co.za and iburstgroup.co.za and iburstlive.co.za, it still doesn't change the fact that iBurst SA used to be known as WBS, hence wbs.co.za and wbsmobile.co.za, and only recently has WBS transmogrified itself into iBurst SA, which shows that even WBS did not place much value on the "iBurst brand" when it started out, now all of a sudden iBurst SA wants to attack its own resellers for having marketed the "iBurst brand" in SA...:rolleyes:

Another tyrannical Telkodemonopolies...:rolleyes:
 
Look, rules are rules.If they used the iburst logo and graphics without permission that is illegal then.Go look at the site it the startup graphics looks a lot like iburst, iburst and iburstlive is very close, and people will think it's the same company.And the argument about adsl and myadsl won't hold,cause it's a service not a comapany.
 
As discussed above, I don't think there's any way for iBurst to force the return of the domain name to them based on copyright infringements.

Rather... focus should rather be on whether or not this is an infringment of the contract between iBurst and himself, and what remedies are therein to protect iBurst -- would the breaching of this particular clause constitute a material breach of the entire contract. Ie. Do iBurst have him by the balls, or not? If so, then giving the domain name back rather than risking being able to trade, would probably be the better option. But ye, it all depends whats been agreed to in writing.
 
This guy says he's going to loose allot of revenue by loosing his domain.
If I was a windows re-seller, and owned www.microsoftlive.co.za then made my site look the same as www.microsoft.co.za , I would also loose allot of money if I give up the domain. Chances are he is scoring off their marketing. Be it he's in a legally right position.

And yeah ;) adsl to myadsl is pissing in the wind.

If he wins it'll be great. I can start registering domain names like www.myadsllive.co.za and other places with high volume, and start spreading some virii and gather me some drones. world domination here I come!
 
What I found funny was that when I contacted them to become a reseller they never got back to me. I also spoke to another reseller and they said to me that iBursts direct offers are cheaper than the cost price to resellers.

And then they say they are not making it hard for their resellers!
 
_TrXtR_ said:
If he wins it'll be great. I can start registering domain names like www.myadsllive.co.za and other places with high volume, and start spreading some virii and gather me some drones. world domination here I come!
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O/T - viruses.

As an aside viri means men in latin.
 
Vie said:
As discussed above, I don't think there's any way for iBurst to force the return of the domain name to them based on copyright infringements.

Rather... focus should rather be on whether or not this is an infringment of the contract between iBurst and himself, and what remedies are therein to protect iBurst -- would the breaching of this particular clause constitute a material breach of the entire contract. Ie. Do iBurst have him by the balls, or not? If so, then giving the domain name back rather than risking being able to trade, would probably be the better option. But ye, it all depends whats been agreed to in writing.
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If iBurst SA weren't so heavy handed, iBurst SA could have dedicated reseller sub-domains on iBurst.co.za, and iBurst SA could have politely asked resellers to redirect their existing domains to the corresponding reseller domain [with free hosting at iBurst SA's expense of course], so iburstlive.co.za would then be setup [by the reseller] to redirect to live.resellers.iburst.co.za or something like that...
 
Yip, very heavy handed and not too good advertising. I understand logo infringment but not the name issue. They going to sue me for iburstbaloons.co.za or iburstiburstsbubble.co.za? Hmmm...might go register if I can get R5000 a pop out of them. Seems like there are a few ibursts out there for them to nail in coza land. I particularily like the first in the list here :)

iburstsucks
clickiburst
iburstafrica
iburstnet
iburst
iburstsa
iburstexpress
iburstrentals
myiburst
iburstonline
iburst-online
getiburst
iburstlive
iburst4business
iburstdirect
igoiburst
iburstforums
iburst-sa
iburstnow
iburstfax
 
If this does go to court, it would be interesting to follow, just like the hellkom/telkom case, and the "the laugh it off" SAB case.
 
orange said:
A domain name can be used in a trademark in South Africa.
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sure - www.kalahari.etc could be trademarked in the sense that it also represents the trading name of the business

but a domain name is not a trademark and the legal rights attaching to trademarks do not apply to domain names

- difficulty to predict an outcome and may be a nice matter for those fancy new alternative dispute resolution regulations (rather than it going to court)...
 
w1z4rd said:
orange said:
A domain name can be used in a trademark in South Africa.
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It can? That is pretty interesting. How/where?
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Put the domain name down on a trademark application. Send off the application to the trademark office. Wait several years for it to be processed (or however long they are taking now). Bang! the domain name is used in a trademark.
 
dominic said:
sure - www.kalahari.etc could be trademarked in the sense that it also represents the trading name of the business

but a domain name is not a trademark
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This much is correct.

dominic said:
and the legal rights attaching to trademarks do not apply to domain names
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But this is incorrect.

The legal rights attached to South African Trademarks apply to where the South African courts have jurisdiction. This is a common misconception where people think that existing laws do not apply to the Internet - They do!

If you use someone's trademark in a domain name in a way that infringes their rights under the Trademarks Act (whichever Act that may be), they will have whatever rights the Trademarks Act gives them, which may mean they can come after you for damages - your friendly attorney will be able to advise you on this.
 
orange said:
But this is incorrect.

The legal rights attached to South African Trademarks apply to where the South African courts have jurisdiction. This is a common misconception where people think that existing laws do not apply to the Internet - They do!

If you use someone's trademark in a domain name in a way that infringes their rights under the Trademarks Act (whichever Act that may be), they will have whatever rights the Trademarks Act gives them, which may mean they can come after you for damages
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maybe i wasn't clear (maybe i was) -a domain name is not regarded as a trademark unless it has been registered as such and even this does not necessarily authorise exclusive use of derivative marks such as iburstlive where there are questions around prior use or prior authorisation

therefore an unregistered domain name does not generally attract the same rights as a registered trademark. there is a possibility of exceptions to this where the domain is recognised as being a common law trademark

the question of jurisdiction over the internet never came into it

someone suing a domain name owner for infringement of trademark is a separate issue - here the person is using the rights attaching to the trademark

orange said:
your friendly attorney will be able to advise you on this.
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i asked him and this is what he said ;)
 
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