Background

The domain name <itunes.co.uk> was registered by a company called Cyberbritain Group Ltd. A Dispute Resolution Service case was started by Apple Computer Inc., who had a business called iTunes which sold music online. The .uk registration had been made before the UK trade mark application was published. However, Apple Computer Inc's complaint related only to the later use of the name. In her decision in the dispute, the independent expert Claire Milne found that following the launch of Apple's iTunes music download service this use included:

• direction of traffic on the domain to a website owned by an associate company;
• an offer to sell the domain name to Napster (a commercial competitor of Apple iTunes) - they refused;
• direction of traffic to Napster under an affiliate scheme (from which profit would be generated); and
• an offer to sell for £50,000.

The expert found that the registration was abusive and ordered transfer. The DRS has an appeal stage, but Mr Cohen (on behalf of Cyberbritain Group Ltd) stated that he would not use this and that he intended to apply for Judicial Review. In view of the public interest at the time we issued a press statement.

Judicial Review is a special court process used for challenging decisions of the Government or government bodies. Generally it cannot be used on private companies although some companies recently privatised or wielding statutory power have sometimes been included. We do not think that it applies to us.

However, Mr Cohen was insistent and Cyberbritain Group Ltd started judicial review proceedings. Apple Computer Inc joined as an interested party. We argued that (a) were were not subject to judicial review and (b) failure to use the appeal stage of the DRS barred them from judicial review. Apple Computer Inc also argued that they had waited too long to apply.

The judge rejected the application to judicially review us, citing the failure to use the appeal and the delay. He avoided the question of whether we were judicially reviewable, as he did not need to decide it. Our press release dealing with this result and Mr Cohen's decision not to go on to appeal is also available.