Now I’m definitely sympathetic to Universal Tube’s plight. They’re a small business that mostly operates in an off-line world. This much traffic shutting down its servers is not something it asked for or deserves. But to respond by suing YouTube for it doesn’t make any sense. YouTube didn’t ask those people to go to the wrong website. In fact, YouTube wants nothing more than for all those people to find the right website. (Okay, maybe not the child pornographers, but everyone else).
Moreover, the fact that Universal Tube is suing primarily under trademark law and the old property doctrine of “trespass to chattels” is particularly disingenous. I mean, the company isn’t even called “utube”–it’s called Universal Tube & Rollform Equipment. They just picked the domain “utube” as a shorthand.
Trademark law is about companies in the same field using similar marks to confuse consumers not about blaming companies for the mistakes of Internet searchers who can’t find the right websites. No consumer looking for videos on the Internet is going to mistakenly buy used tubbing or visa-versa (unless of course, they’re looking for a series of tubes ;). What Universal Tube is trying to do here is right a wrong by squeezing a square peg in a round hole. There is no “trespass” here or trademark violation and they shouldn’t try to trick a court into finding one.
The only way this lawsuit makes sense is if it’s a negotiating tactic. After all, Mike says they’ve already turned down a million dollar offer for the domain–it surely doesn’t cost a small business a million dollars to change its web address. So they can’t honestly feel they’ve been injured. More likely, they’re expecting Google to buy them out, and they’re hoping a lawsuit will give them more leverage in the price negotiations.