Patel v Allos Therapeutics Inc, decided earlier this month by Sonia Proudman QC, sitting as a Deputy Judge of the Chancery Division, England and Wales, is a dispute in which Allos, a biopharmaceutical company, became involved in litigation with Patel, the registrant of the allostherapeutics.com domain name. After ICANN had upheld Allos's complaint under the UDRP process and ordered the transfer of the domain to it, as owner of the US registrations of the Allos and Allostherapeutics, Inc trade marks, Patel commenced proceedings in England and Wales in which he sought to have the UDRP process set aside, maintaining that the ICANN panel decision infringed his right to freedom of expression under Article 8 of the European Convention on Human Rights; he also alleged defamation, malicious falsehood and wrongful threats to sue for trade mark infringement.

Allos applied for (i) the claims to be struck out on the ground that they disclosed no reasonable grounds of action or (ii) summary judgment on the basis that Patel had no real prospect of succeeding and there was no other compelling reason why the matter should go to trial. Holding for Allos, Sonia Proudman QC observed that freedom of expression was not an unqualified right: it had to be balanced against the rights of others, such as the rights of a minority not to suffer abuse or the rights of a trade mark owner freely to enjoy its own rights and property. Patel could not succeed: he used a domain name without offering any indication that it was a protest site; that site featured Allos's own trade mark. It was hardly free speech to use a domain name and trade marks that internet users would (and were intended to) associate with Allos in order to trick them. Nor was there any active criticism, or any link to any criticism.