Polish Gmail vs Google Gmail – The Poets vs The Court Jester

Gmail ClownGoogle might well have goofed again with Gmail domain registrations. I live in Poland so this is quite comical for me, and thus the comical headline. The Polish court system isn’t quite as well organised as the US, but decisions are often made faster and a lot cheaper. What that means to Google is that they can’t throw a fit and expect a small group of poets to concede defeat, and that their size as a company might not give them any advantage (unless they know someone who can influence decisions).

I am not a lawyer, and the following is for entertainment purposes only

There are a lot of things stacked up against Google:-

  • Why didn’t they register it first, plus gmail.com.pl as well – yep Google don’t seem to own that domain either
  • Gmail seems to be just a trademark, not a registered trademark
  • Poland is in Europe, and Google have already had problems with the UK and Germany. Google does not have prior claim to the term Gmail in Europe, thus the Gmail trademark owners in those countries might have more claim than Google to the trademark.
  • They are going to have to fight this “away from home”

Google are geting very bad press over this in Poland already, such as this article on Gazeta.pl

przez ponad dwa lata spółka nie wykazywało zainteresowania kupnem domeny gmail.pl (podobnie zresztą jak i w innych krajach), co mogłoby sugerować, że e-maili z polską końcówką nie zamierza oferować. Czy teraz zmieniła zdanie?

Rough translation: For over 2 years the company didn’t show any interest in buying the domain gmail.pl (just like the other countries), which could suggest that they didn’t intend to offer the email service with the Polish top level domain. Have they now changed their minds?

Grupą Młodych Artystów i Literatów (GMAiL) are probably enjoying the publicity, although they should think about offering some English language pages for the 1000s of visitors this story will bring them.

I am very disappointed in the AFP coverage on Yahoo news. They didn’t include a live link to the site even though they had multiple quotations.

The Guardian did link through to the domain, and questions Google’s “Don’t Be Evil”, and so do Digital Inspiration, and Profy.

With domain disputes it is normal to follow the procedures dictated by the regional domain registrars, which generally conform to ICANN procedures.

In Poland the national registrar is NASK.

Domain names in Poland are a lot more expensive than in the US or UK, here are NASKs current prices.

Type of Domain Yearly Payment in ZÅ‚oty (PLN)
Country Top Level
.pl
200,00 *
NASK Functional Domains
.com.pl, .biz.pl, .net.pl, .org.pl …
150,00 *
Regional
.waw.pl, …
50,00 *

If you wanted to compare apples and oranges, for a typical Polish worker that is the equivalent of more than $500 to register a domain, as compared to domain cost in the US and typical income.

NASK conveniently have their policies and rules available in English.

DISPUTE RESOLUTION
14. In the event of a third party filing to the Arbitration Court at the Polish Chamber of Information Technology and Telecommunication in Warsaw (hereafter “the Arbitration Court”) a motion against the subscriber demanding to desist the infringement of his rights resulting from the registration of a domain name, the subscriber shall accede to the negotiation proceeding described in the Rules of the Arbitration Court. If the subscriber and the third party fail to reach a settlement, the subscriber shall deliver to the Polish Chamber of Information Technology and Telecommunication a signed arbitration clause within a time limit set in summons to sign the arbitration clause.
15. Failure to sign the clause described in the preceding section shall result in (in the order indicated):
a. suspension in the possibility of using the domain name, effective after 30 days from the expiration of the time limit set for signing the clause,
b. termination of the contract within 3 months of the expiration of the time limit set for signing the clause.
16. Disputes, in which both parties are registered or resident outside the Republic of Poland, are resolved by the World Intellectual Property Organization Arbitration and Mediation Center pursuant to the WIPO Expedited Arbitration Rules for Domain Name Dispute Resolution under .PL (the Rules). The provision of the Rules regarding the parties’ Arbitration Agreement applies when the dispute is to be resolved by the WIPO Arbitration and Mediation Center.
17. If NASK is informed about existing dispute concerning a domain name, any changes of the subscriber of the domain name, shall be suspended until the dispute is resolved.
18. NASK shall execute a court award resolving the dispute between a subscriber and a third party concerning a domain name. In the case of award declaring infringement by a subscriber of third party rights resulting from the registration of an Internet domain name, the contract is terminated as of the date when the award becomes in force.

Unlike similar rules for .com, .net and .info that I have read from US registrars, there doesn’t seem to be an option to fight this in the courts rather than arbitration. Google have an office in Poland, thus they probably have to act as a Polish entity. They probably don’t class as a foreign party under the 16th clause.

New rules come into effect on the 18th March 2007 and those mention court decisions.

A legally valid decision of an arbitration court or the common court stating that the Subscriber has infringed a third party’s rights shall be a basis for the termination of the Agreement by the NASK with that Subscriber without the period of termination.

These changes might be the reason that this dispute is being handled now, and not in a few months time.

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Clown Picture Credit: Designed With A T (modified from original)

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Comments

  1. says

    Slightly off topic, but isn’t it a killer that lots of media still aren’t linking to the sites they’re talking about. It’s great when they do, but the others aren’t doing themselves any favors. They’re not sharing the link love and robbing their readers of the opportunity of clicking through and potentially learning something new/different/uncovered and the opportunity to form their own opinions!

    Sorry for the rant, but the AFP thing brought it out!

  2. says

    I actually thought the same when I read it and there wasn’t a live link, so I felt compelled to mention it. Bloggers sometimes do a better job than journalists it seems on some things on the web.

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