Alleged contract breach: Nigerian seeks $150m damages against Google
By Taiye Agbaje
Abuja — A Nigerian, Mr Chianugo Peter, has sought a 150 million dollars compensation from Google and GoDaddy.com over allegations bordering on the shutdown of his YouTube Audio domain name after eight years of promotional and marketing works.
Peter, through his lawyer, Emmanuel Ekpenyong of Fred-Young & Evans LP, filed the suit before Justice Obiora Egwuatu of a Federal High Court, Abuja.
The plaintiff, in the application marked: FHC/ABJ/CS/238/2023, sued GoDaddy.Com LLC and Google LLC as 1st and 2nd defendants.
In the suit filed April 14, sought the court declaration that he registered the YouTube Audio business name, commenced trademark registration on the logo of the business name and secured the YouTubeAudio.com domain name from the GoDaddy in good faith to carry out genuine business to host his application thereon to attract users.
He also sought a declaration that since GoDaddy and Google encouraged him to make use of the YouTubeAudio.com domain name for the past eight years, “they are estopped from claiming that the domain name infringes any of their trademarks or deny the plaintiff the use of the YouTubeAudio.com domain name.
“A declaration of this Honourable Court that the plaintiff is entitled to compensation from the defendants for the loss of the YouTubeAudio.com brand and goodwill which has accrued on the brand and domain name for 8 years of promotional and marketing works from 2nd July, 2015 to 7th December, 2022.
Peter, therefore, sought an order directing the defendants to pay him the sum of $50 million for promotional and marketing works on the YouTube Audio business name and YouTube Audio.com domain name for eight years from July 2, 2015 to Dec. 7, 2022.
“An order of this Honourable Court directing the defendants to pay the sum of US $ 100, 000, 000 (One Hundred Million United States Dollars) to the plaintiff for loss of anticipated profits associated with the brand equity and goodwill of YouTube Audio and YouTube Audio.com domain name.
“An order of this Honourable Court directing the defendants to pay the Plaintiff the sum of N50, 000, 000 (Fifty Million naira) to enable the plaintiff to carry out fresh registrations of its new name and secure an alternative domain name to host its application to attract users.
“An order of this Honourable Court directing the defendants to pay the sum of N10, 00, 000 (Ten Million naira) paid to the plaintiff’s counsel for prosecution of this suit.”
In the statement of claim, Peter said he was the owner of the YouTube Audio, also known as YTAudio which could be accessed through platforms such as Google Play Store and Apple Store in Nigeria.
According to him, YouTube Audio is a creative mobile application that encourages users to be more creative and enjoy utilising audio as a primary source of entertainment, information, and expression.
Peter said sometime in 2015, he acquired YoutubeAudio.com and YoutubeAudio.ca. domain names from GoDaddy without any caveat that it infringed the YouTube trademark or any other products of Google.
He further averred that in that year when he applied to GoDaddy to obtain the YouTubeAudio.com and YoutubeAudio.ca domain names, GoDaddycarried out an availability check and confirmed that the names were available for him.
Peter said GoDaddy did not inform him that neither YouTubeAudio.com nor YoutubeAudio.ca domain name was similar to YouTube or any trademark of Google.
“It was upon this premise that the plaintiff consistently paid for the domain name and carried out promotional and marketing works on the domain name,” he said.
Besides, he said from 2015 to April 2022 when he carried out extensive promotional and marketing works on the domain name, Google did not lay claim to the domain name or insist that it was similar to the YouTube trademark.
The plaintiff said he even paid Google to host the YouTube Audio.com application on the Google Play Store in 2021 without any query that the domain was similar to the YouTube trademark or any of its other trademarks.
Peter said the YouTube Audio was duly registered on Feb. 22, 2016 as a business name with the Corporate Affairs Commission (CAC) under the laws of the Federal Republic of Nigeria as BN 2395035 and continuously filed tax returns with the Federal Inland Revenue Service in Nigeria (FIRS).
He said the domain was fully established and had a management team, business address, foreign and local bank accounts with several banks, including master card and cheque books.
The plaintiff said it was after eight years of serious promotional and marketing works on the YouTubeAudio.comdomain name to make it attractive to users and launch its application thereon that the defendants suddenly claimed that the domain name was similar to the YouTube trademark.
Peter, who stressed that GoDaddy registered the YouTube audio.com domain name and gave him the assurance that he had acquired a right over the name.
He insisted that Google also gave him the assurance that he had acquired a right over the name when it took no action throughout the eight years period when he carried out promotional works on the name and even gave approval for the YouTube Audio application to be listed on Google Play Store in 2021.
The plaintiff said it was based on the assurances of the defendants that he relied upon and incurred tremendous cost and expenses in registering and branding the YouTube Audio.com business and domain name and carried out wide promotional works on the name for eight years.
According to him, on 29th April, 2022, the 2nd defendant (Google), through its Solicitor, Aluko & Oyebode contacted the plaintiff to express its concerns about YouTube Audio and its similarities with YouTube.
He said Google’s lawyer called for amicably settlement of the issue and advised him to change its business name, social media pages, domain names and trading style to YTAudio.
Peter said through his lawyer, he agreed to an amicable settlement of the issue only if Google was willing to compensate him.
He said instead of taking steps to compensate him, GoDaddy shut down his domain on a claim that it infringed the YouTube trademark after an arbitration proceedings against him before the Forum under the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN).
According to him, on the basis of the forum’s decision, the 1st defendant shut down the plaintiff’s YouTubeAudio.com domain name and transferred it to the 2nd defendant on 7th December, 2022.
Peter argued that Google did not have a monopoly of the “YouTube” acronym and that was why there were other independent companies and domain names with the “YouTube” acronym such as “YouTube Downloader”, “YouTube Promoter”, “ssyoutube.com”, “YouTube to MP4 Converter” amongst others.
He said that the defendants acted against the assurances they gave him that he acquired a right over the YouTube Audio.com domain name when they commenced arbitration against him and took over the name without any compensation.
When the matter came up for report of service of originating processes on the defendants, only the plaintiff lawyer, Ekpenyong, and counsel to Google, Mark Mordi, SAN, were in court.
Justice Egwuatu adjourned the matter till October 11, for mention.
