Independent Police Complaints Commission v Mr Liam Silcocks [2004] DRS 02109 (29 November 2004)

INDEPENDENT POLICE COMPLAINTS COMMISSION

= v =

LIAM SILCOCKS

Nominet UK Dispute Resolution Service
 
DRS 02109

Decision of Independent Expert

Dated this 29th day of November 2004

Complainant’s Details

Complainant:		Independent Police Complaints Commission
Address:	90 High Holborn
	London
Postcode:		WC1V 6BH
Country:		GB

Contact Details

Contact:	           Smriti Ahluwalia
Business Name:	The Treasury Solicitor
Address:	Queen Anne's Chambers
	28 Broadway
	London
Postcode:		SW1H 9JS
Country:		GB
Daytime Tel No.:	020 7210 2998
Mobile Tel No.:	
Fax:			020 7210 2996
Email:			sahluwalia@treasury-solicitor.gsi.gov.uk
Reference:		LT3/0446L/SA/A10

Respondent’s Details

Respondent:		Liam Silcocks
Address:	129 Yarnbrook Road
	West Ashton
	Trowbridge
	Wiltshire
Postcode:		BA14 6AF
Country:		GB

Disputed Domain Name

ipcc.org.uk

This domain name is referred to below as the "Domain Name".

Procedural Background

The Complaint was lodged with Nominet on 4 October 2004. Nominet validated the Complaint and notified the Respondent of the Complaint on 8 October 2004. In this correspondence Nominet informed the Respondent that it had 15 working days within which to lodge a Response. The Respondent failed to respond. Nominet informed the Complainant that mediation was not possible in these circumstances. On 10 November 2004 the Complainant paid Nominet the appropriate fee for a decision of an Expert pursuant to paragraph 6 of the Nominet Dispute Resolution Service Policy (“the Policy”).

Sallie Spilsbury, the undersigned (“the Expert”) has confirmed to Nominet that she knew of no reason why she could not properly accept the invitation to act as Expert in this case and further confirmed that she knew of no matters which ought to be drawn to the attention of the Parties which might appear to call into question her independence and impartiality.

Formal/procedural issues

Under Paragraph 5a of the Dispute Resolution Service Procedure (“the Procedure”) the Respondent was required to submit a Response to the Complaint to Nominet by 1 November 2004.  The Respondent has failed to do so.

Paragraph 15b of the Procedure provides as follows: 

If, in the absence of exceptional circumstances, a Party does not comply with any time period laid down in this Policy or Procedure, the Expert will proceed to a Decision on the Complaint.

 Are there exceptional circumstances which would suggest that it is not appropriate to proceed to a Decision?

The Nominet file of documents supplied to the Expert contains a “Phone Note” recording a telephone conversation between “MP” of Nominet and the Respondent on 11 October 2004 (Nominet has confirmed to the Expert that the note is incorrectly dated and that the conversation took place on 11 November 2004.) According to the attendance note the Respondent did not receive notification that a Complaintt had been made. It appears that the first that the Respondent knew of the matter was the receipt of the fee note indicating that the Complainant wanted to proceed to a decision by an independent Expert. During the conversation Nominet invited the Respondent to make a non standard submission if he wished. The Respondent then indicated that he would write a letter to Nominet. No letter has been received at the date of this decision. The Respondent was then informed that in the meantime the DRS procedure would continue to run. 

Given that over two weeks has passed since the telephone conversation and the date of this decision and nothing has been heard from the Respondent it is the view of the Expert that there are no exceptional circumstances which prevent her from proceeding to a decision. 

The Expert is accordingly authorised under the Procedure to proceed to decide the Complaint. Under paragraph 16a of the Procedure the Expert should reach a decision based on the Parties’ submissions (which consist of the Complaint and a bundle of supporting documents) and the Policy and Procedure. In the absence of any exceptional circumstances the Expert is also entitled to draw such inferences from the Respondent’s non-compliance with the Policy or Procedure as she considers appropriate (paragraph 15c of the Procedure).

The facts

The Complainant

The Complainant is a body corporate called the Independent Police Complaints Commission, and is also known by the acronym, the IPCC. The Complainant was established by the Police Reform Act 2002, which was enacted on 24th July 2002, and came into force on 1st April 2003.  

The statutory functions of the Complainant include the maintenance of an independent, efficient and effective system of investigating and handling complaints made about the conduct of persons serving with the police. 

On 1st April 2004, the Complainant formally took over the functions that were previously carried out by the Police Complaints Authority (“PCA”). The Complainant’s website is at www.ipcc.gov.uk. The ipcc.gov.uk domain name was registered by the Complainant on 17 September 2003. On 26th March 2003, the Home Office also registered the domain name www.independentpolicecomplaintscommission.org.uk.

The Respondent

The Respondent registered the Domain Name on 3rd June 2002. The Complainant confirms that the Respondent has no connection with the Complainant. 

The Respondent is operating a website at www.IPCC.org.uk. The Complainant has provided print outs of the contents of the website at 13 November 2003 and 30 September 2004 (items 52 and 53 respectively in the bundle of documents in support of the Complaint). The contents of the site on both dates appear to be identical. The Expert visited the site herself on 27 November 2004 and noticed no significant changes to the content. The Expert’s description of the website content in this decision is based on the print outs supplied by the Complainant.

The Respondent’s site states that it is “under development”. The homepage features the strapline “the only Independent Police Complaints Committee”. It features a prominent logo “iPCC” in stylised writing (the appearance of the logo is not similar to the Complainant’s stylised logo- although each logo obviously consists of the same component letters. The Respondent’s logo features a lower case “i” whereas the whole of the Complainant’s official logo is written in upper case).  

Whenever the Respondent’s organisation is referred to in the text of the site it appears as “iPCC”.

A disclaimer appears twice on the home page in red type of reasonable prominence. It states:

 “This site is still under development. We are an independent organisation, which is not connected to any government or agency”

This disclaimer appears only on the home page of the site.

The subject matter of the site relates to police complaints procedures. The content is largely out of date as it relates to the defunct Police Complaints Authority (PCA). The site has a section headed “How the Complaints Process Works” (which includes a description and a flow diagram of the PCA process). It also has a section headed “A look at the Police Complaints Authority” which inter alia sets out the objectives of the PCA. This section of the site states:

We will discuss peoples concerns further in this section, but an important aspect of the PCA is in the fact that they are not called the Independent PCA, as both the government and the media often incorrectly refer to them.

The PCA are the only current government created organisation that exists to deal with Police complaints. We have to accept that until they are replaced (due in 2004), and until then, we have no choice but to follow the existing procedures.

At a webpage headed “Why the iPCC.org.uk?” the sites states:

In 1984 the Police Complaints Authority (PCA) was empowered to “independently” ensure that complaint investigations were executed satisfactorily (they also have other functions).Many believe the role of the PCA is superficial and believe it was created to make the public think that somebody cared, it is a relatively weak authority…..

We also know how difficult it is to find out information, help and guidance about Police complaints which is why we are setting up the iPCC. It will exist to help people find out everything they need to be aware off and show them where the Police may abuse the procedures and what can be done.

(All website text is reproduced accurately.)
The site refers the visitor to independent organisations that can provide advice and assistance such as the Citizens Advice Bureau.

The Expert cannot find, and the Complaint makes no reference to, any specific references to the Complainant on the Respondent’s site.

The Parties’ Contentions

Complainant

The Complainant asserts that its name “IPCC” is similar or identical to the Domain Name, and that it has rights in that name. 

The Complainant claims rights in the name IPCC on the basis that this name has become associated and/or synonymous with it. It claims that these rights existed on or prior to the Respondent’s registration of the Domain Name (June 2002) and/or they existed on or after the Respondent used the Domain Name. 

In support of this contention, the Complainant relies on the references to the Complainant as the IPCC in a number of public documents (details of which are set out below). Copies of these documents have been produced in support of the Complaint. 

(1) A Report by Liberty entitled “An Independent Police Complaints Commission” dated April 2000. 
(2) A Consultation Paper issued by the Home Officer entitled “Complaints against the Police” dated 17th May 2000. 
(3) The White Paper issued by the Home Office entitled “Complaints against the Police Framework for a New System”, dated December 2000). 
(4) Article entitled “Home Office unveils new ‘independent’ police complaints system” published in the Guardian newspaper on 19th December 2000. 
(5) Minutes of Evidence of the House of Commons Select Committee on Home Affairs, dated February 2002.
 (6) Referral to the IPCC by Lord Bassam of Brighton in House of Lords debate recorded in Hansard on 5th March 2002. 
(7) House of Commons Select Committee Second Report dated 7th May 2002 concerning the Police Reform Bill. 
(8) The press release dated 12th December 2002 by the Home Secretary, the Rt. Hon. David Blunkett MP PC, announcing the appointment of the chairman of the Complainant.
 (10) Various press article from March 2003 to the present referring to the Complainant as the IPCC. 

The Complainant asserts that the Domain Name should be considered an abusive registration in the hands of the Respondent for the following reasons: 

(1) The Respondent registered the Domain Name in a manner which, at the time when registration took place (3rd June 2002), took unfair advantage of or was unfairly detrimental to the Complainant’s rights. In support of that contention, the Complainant relies on the following facts and matters: 

(i)	In circumstances where by June 2002, the name IPCC had become identified and synonymous with the Complainant, and where the content of the Respondent’s website, which uses the name in relation to an organisation describing itself as the “Independent Police Complaints Committee”, at the Domain Name is to criticise the predecessor of the Complainant, it is inferred that the Respondent’s registration of the Domain Name was a blocking registration designed to prevent the Complainant from making use of the name.

(ii)	 On the basis of the content of the web site the Respondent registered the Domain Name primarily for the purpose of unfairly disrupting the Complainant’s public functions and activities by confusing and/or deterring individuals who wish or would otherwise wish to make use of the Complainant’s services and/or website. 

(2)The Respondent has used the Domain Name in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s rights. In particular, the Complainant contends that that the content of the Respondent’s web site and the identity between the Domain Name and the Complainant indicates that the Respondent is using the Domain Name in a way which has confused people into believing that the Domain Name is registered to, operated or authorised by or otherwise connected with the Complainant. The Complainant asserts that the most likely reason the Domain Name was chosen by the Respondent was because of the recognition and association it has with the Complainant and because of its potential for diverting would-be visitors to the Complainant’s site (www.ipcc.gov.uk) to the Respondent’s site. 

The Complainant also states that Pursuant to paragraph 4 of the Policy, the Respondent has the burden of proving that the registration and use of the Domain Name was, and is, not an abusive registration because the Domain Name is identical to the name in which the Complainant asserts rights and the Respondent is using the Domain Name for the purpose of a criticism site without the Complainant’s authorisation.

Respondent

The Respondent has made no submissions.

Discussion and findings

Clause 2 of the Policy provides that a Complainant must prove that:

(I) The Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and

(ii) The Domain Name, in the hands of the Respondent, is an Abusive Registration.

The onus of proving that it has Rights is borne by the Complainant who must prove this on the balance of probabilities (Clause 2b of the Policy). 

Rights

The Complainant asserts that it has rights in the IPCC mark. If this is the case the Expert finds that the IPCC mark is identical to the Domain Name (it being customary to disregard the suffix “.org.uk”).
 
The term “Rights” is defined by the Policy to include, but not be limited to, rights enforceable under English law but the term does not extend to a name or term which is wholly descriptive of the Complainant’s business.The Complainant has provided no evidence of any trade mark registrations for the IPCC mark. Its case is based on the assertion that IPCC has become associated and/or synonymous with the Complainant and the Complainant has produced almost 50 public documents, including media reports, for the period April 2000-September 2004 which record the use of the acronym IPCC in connection with the Complainant to support this assertion. There is no survey or similar evidence before the Expert to verify this assertion. 

Having reviewed the documentation and publicity the Expert finds that the IPCC mark is likely to have become associated with the Complainant amongst relevant sectors of the public as a result of the cumulative effect of the above publicity. The Expert also finds that such an association is sufficient to establish that the Complainant has “Rights” in the mark for the purposes of the Policy (bearing in mind that there is no requirement that Rights should be enforceable under English law). This finding is based on the cumulative effect of the publicity up to September 2004.

The Complainant has therefore demonstrated that it has rights in the IPCC mark and this mark is identical to the Domain Name. The first criterion under the Policy has been satisfied. 

Abusive Registration- burden of proof

Clause 4b of the Policy provides that 
"Fair use may include sites operated solely in tribute to or criticism of a person or business provided that if: 
i.	the Domain Name (not including the first and second level suffixes) is identical to the name in which the Complainant asserts rights, without any addition; and 
ii.	the Respondent is using or intends to use the Domain Name for the purposes of a tribute or criticism site without the Complainant's authorisation 
 then the burden will shift to the Respondent to show that the Domain Name is not an Abusive Registration." 
The Expert must make a determination about where the burden of proof of Abusive Registration lies in this Complaint. 

The Expert has previously determined that the Domain Name is identical to the mark in which the Complainant asserts Rights (a requirement set out at clause 4b(i). 

The second consideration under clause 4b(ii) is whether the Respondent’s website is, or is intended to be, a criticism site. It seems to the Expert that the objective of the Respondent’s site is to provide interested parties with information about the police complaints process under the defunct PCA. It is the case that parts of the site refer to criticisms and concerns that have been voiced about the PCA and there is a purported link stating “Concerns about the PCA” (but this does not actually link to a webpage although it was presumably created to do so).  However on the basis of the print outs provided by the Complainant the Expert does not find that the dominant objective of the site is criticism of the PCA per se. The overall tone of the site is more constructive. There is no information before the Expert regarding the Respondent’s intention for future use of the site.

Does the site have to be solely a criticism site before clause 4b is engaged? 

This point was considered (but not determined) by the Appeal Panel in the DRS decision Hanna-Barbera v Graeme Hay (DRS 00389) in relation to a tribute site. The Appeal decision states:

The Panel has considered the word 'solely' in the first line of paragraph 4b. of the Policy ("fair use may include sites operated solely in tribute ..."). It raises interesting questions as to whether or not partial tribute sites are fair and whether or not the burden of proof shifts in the case of partial tribute sites. However, these are not questions which the Panel needs to answer.

It now falls to the Expert to determine this point. She finds that the first sentence of clause 4b is clear. According to that sentence the shifting of the burden of proof provided for in clause 4b will apply only where the site is used solely in tribute or criticism. For the reasons set out above the Respondent’s site does not operate solely as a criticism site. It follows that the requirements of clause 4b have not been met and the burden of proof for establishing that the requirements of the Policy are made out remains with the Complainant.

There is another reason why clause 4b should not apply to the Respondent’s site. The site makes no specific reference to the Complainant. The critical content of the site relates to the PCA. Insofar as there is indirect reference to the Complainant the inference that the Expert draws from the site is the expectation that the complaints system is expected to improve under an independent system- see for example the following phrase from the website page headed “A Look at the Police Complaints Authority”:

The PCA are the only current government created organisation that exists to deal with Police complaints. We have to accept that until they are replaced (due in 2004), and until then, we have no choice but to follow the existing procedures.

This raises an issue which is ambiguous under clause 4b. Must a criticism site be critical of the Complainant in order to fall within clause 4b?

The wording of clause 4b suggests that this is not a requirement (Fair use may include sites operated solely in tribute or criticism of a person or business…..) (bold type for emphasis).

However having regard to the objective of the Policy, which is to provide a remedy against abusive registration or use of a Domain Name, the Expert is of the view that it is an implicit requirement of the Policy that to benefit from the shift in the burden of proof under clause 4b, a Complainant must be able to demonstrate that a site operates in tribute or criticism of the Complainant or with an entity that is directly associated with the Complainant. The Complainant has not demonstrated that this is the case on the facts. There is no direct association between the PCA and the Complainant. The documentation produced by the Complainant in support of the Complaint emphasises that the introduction of the Complainant heralds the introduction of a new framework for considering complaints against the police rather than a continuation or association between the Complainant and the PCA.

It follows that the burden of proof of establishing an Abusive Registration falls on the Complainant which must prove its case on the balance of probabilities.

Abusive Registration

Abusive Registration is defined in Clause 1 of the Policy to mean; 

A Domain Name which either:

(i)	was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant’s rights; OR

(ii)	Has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights. 

Registration or Acquisition

The Domain Name was registered on 3 June 2002. The Expert must therefore consider whether the registration took unfair advantage or was detrimental to the Complainant’s Rights in the IPCC mark at the time of registration. This requirement is clearly stated in the definition of Abusive Registration which is contained in the Policy.

Clause 3 of the Policy provides a non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration.  The indicative factors which may be relevant to the registration or acquisition of the Domain Name are as follows:

There are circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name:

A primarily for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly associated with acquiring or using the Domain Name;

B as a blocking registration against a name or mark in which the Complainant has Rights; or

C primarily for the purpose of unfairly disrupting the business of the Respondent.

As stated above these are non-exhaustive factors which might give rise to an Abusive Registration. More generally under clause 1 of the Policy the Expert must ask whether the registration of the Domain Name took unfair advantage of or was unfairly detrimental to the Complainant’s Rights. The Complainant relies on (B) and (C) (A is clearly not applicable).

The initial consideration for the Expert is whether the Complainant enjoyed Rights in the IPCC mark on 3 June 2002. In this respect the Complainant relies on documents numbered 1-7 (inclusive) set out above at page 6 of this Decision which, it claims, had caused the IPCC mark to become associated with the Complainant by 3 June 2002. The Expert can confirm that each document refers to the introduction of a new independent complaints body called the Independent Police Complaints Commission (IPCC). The Expert is of the view that an expectation was created by these documents amongst interested members of the public that the proposed new organisation would be known as IPCC. However it is stretching the interpretation of “Rights” in a mark to find that this expectation gave rise to an enforceable interest in the proposed name in June 2002. 

If the Expert is wrong on this point there is the additional difficulty that the Complainant did not exist on 3 June 2002 and cannot therefore be said to have owned any Rights which existed at that time (the Complaint records that the Complainant was established by the Police Reform Act 2002, which was enacted on 24th July 2002, and came into force on 1st April 2003.  Even if the Expert were to regard the establishment of the Complainant as the enactment of the statute (which may not be the correct approach) the July date postdates the registration of the Domain Name by some weeks.) It is therefore nonsense to refer to the registration of the Domain Name as being detrimental to the Complainant’s Rights at the time it was secured.

The Expert therefore finds that the Complainant is unable to establish that the Domain Name was registered in a manner which, at the time when the registration took place, took unfair advantage of or was unfairly detrimental to the Complainant’s Rights (italics for emphasis). There were no Rights in existence at that time and no Complainant.

For completeness the Expert also finds that there is no suggestion that the motivation of the Respondent was to secure the Domain Name as a blocking registration or for the unfair disruption of the Complainant’s business. The Complainant asserts that the most likely reason for the choice of Domain Name was the recognition and association it had with the Complainant and because of its potential for diverting would-be visitors to the Complainant’s site. However given that the Complainant did not yet exist, and so had not yet registered its own Domain Name or publicised its website address, it would not be appropriate to draw this inference based on this unsupported assertion.

The Domain Name has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights. 

The Domain Name is obviously being used by the Respondent. The Expert has already found that the cumulative effect of all media coverage up to September 2004 has created Rights in the IPCC mark belonging to the Complainant.

The crucial issue is whether the Respondent’s website is taking unfair advantage of or is unfairly detrimental to the Complainant’s Rights. In an earlier part of her decision the Expert has noted the following features of the Respondent’s website:

•	The focus of the website is the PCA and not the Complainant
•	The homepage of the website disclaims any connection with a Government department or agency
•	The objective of the site is clearly to provide information about the complaints process under the PCA regime and support for complainants. There is no attempt to represent the site as having any connection to the current complaints process operated by the Complainant

The Complainant asserts that the identity between the Domain Name and the Complainant indicates that the Respondent is using the Domain Name in a way which has confused people into believing that the Domain Name is registered to, operated or authorised by or otherwise connected with the Complainant. There is no evidence to show that any such confusion is actually occurring. 

Having reviewed the print outs of the website provided by the Complainant the Expert is satisfied on the balance of probabilities that the overall content and presentation of the website does constitute an Abusive Registration through use. The Expert’s finding is based on the conclusion that the website does not sufficiently dispel any connection between the Respondent and the Complainant. 

In reaching this decision the Expert has taken into account the measures taken by the Respondent including the disclaimer on the home page, the stylisation of the iPCC name which does not resemble the Complainant’s stylisation, the fact that the Respondent calls itself the Independent Police Complaints Committee (not Commission) and the fact that the Respondent refers to itself as “iPCC” rather than IPCC. However these precautions have to be balanced against the overall tone of the site which purports to represent itself as an authoritative source of information about police complaints procedures. The average visitor to the website would be unlikely to appreciate the significance of these subtle nuances. The Expert places particular emphasis on the strapline of the homepage which reads “the only Independent Police Complaints Committee”.  The numerous grammatical errors which appear could also easily be excused given that the site states that it is under construction. Taking into account all of these factors the Expert finds on the balance of probabilities that a visitor to the Respondent’s site would remain under the impression that they are viewing an official and authorised source of information. This constitutes an Abusive Registration because it is unfairly prejudicial to the Complainant’s Rights. The criticism of the previous regime and of instances of misconduct by the police under the old regime could make it difficult for the independent nature of the Complainant (i.e. independent of the police and the complaining party) to be sustained. It could also jeopardise the functioning of the complaint system operated by the Complainant.

On the facts before her the Expert accordingly finds an Abusive Registration on the ground of use.

The Expert wishes to stress that this decision is in no way meant as a restriction on the ability of the Respondent to express criticism of any aspect of the former or current police complaints process. The difficulties that have arisen in this matter arise only from the probability that visitors to the Respondent’s site will mistakenly believe that the content has been authorised or sanctioned by the Complainant. The Expert would also stress that she has made no finding of bad faith on the part of the Respondent.

Decision

The Expert finds that the Complainant has proved on the balance of probabilities that the two elements in paragraph 2 of the Policy are present, namely that there are Rights in respect of a name or mark which is identical or similar to the Domain Name and that the Domain Name in the hands of the Respondent is an Abusive Registration.

Accordingly the Expert finds that the Complaint succeeds and directs that the Domain Name be transferred to the Complainant.

Sallie Spilsbury

29 November 2004