ABSTRACT
The use of a domain name can also amount to a trade mark infringement. By contrast with passing off, trade marks jurisdiction is entirely statutory. Without trade mark protection they could still prevent other traders from using their distinctive marks to pass themselves off as the owner of the mark. The domain name has to be identical to the mark, and also to be used in the course of trade for identical goods or services. Domain name hijacking would also often amount to passing off, unless the claimant and the defendant had the same name. The plaintiff's infringement action failed, and the defendants retained the domain name. Although the domain name was identical to the mark, the defendants' services were not considered to be identical. Most of the litigation has arisen over domain name envy, where companies are trading under identical names and similar goods or services.
