The Times reports that The Dyslexic Domain Name Company has settled a dispute with Microsoft, concerning a number of domain names it has registered consisting of typos of various trade marks. Clive Gringrass, who wrote the article, and is Microsoft's UK representative on this matter writes:
"Trade mark legislation around the world and, in particular, the UK’s Trade Marks Act (1994) makes clear that these registrations are an infringement. Each of the registered domain names is identical - or as near as makes no legal difference - to the registered trade mark. The domain name – or “sign” - is then used in the course of trade to sell advertisements. This is flagrant trade mark infringement".The IPKat hates to say it, but he thinks this might be right. Although his gut instinct was that any site clearly won't be that of the trade mark owner and so no confusion (unless we go down the initial interest confusion route), he thinks this is probably the elusive example of a mark which is different to the earlier mark, but in a way that consumers won't notice (otherwise they wouldn't have typed it by mistake), rendering it deemed to be identical under the LTJ Diffusion test. Two outstanding issues though: what are the goods/services for which it is being used? Is there trade mark use, sorry, make that is there use which harms one of the mark's functions, including the essential function?