West Midlands International Airport Ltd v LCS Cars  [2005] DRS 02484 (22 June 2005)

Nominet UK Dispute Resolution Service
DRS 02484
west midlands international airport limited
- AND -
LCS CARS

RE:	COVENTRYAIRPORTCARPARKING.CO.UK

Decision of Independent Expert

Parties: 

Complainant:	West Midlands International Airport Ltd	

Represented by:	Mr. Jonathan Tarpey	
		
Of:	TUI UK Limited	

		
Respondent:	LCS Cars	

		
Disputed Domain Name:	coventryairportcarparking.co.uk	

Abbreviations used in this decision:

Abbreviation	Definition	
DRS	Nominet UK's Dispute Resolution Service	
DRS Policy	Nominet UK's Dispute Resolution Service Policy as applicable after 25/10/04	
DRS Procedures	Nominet UK's Dispute Resolution Service Procedures as applicable after 25/10/04	
The Expert	Kirsten Houghton	

Procedural Background:
1.	The Complaint was lodged with Nominet on 21st March 2005 and hard copies were received on 22nd March 2005.   
2.	Nominet validated the Complaint on 29th March 2005. 
3.	On 27th January 2005, Nominet sent the complaint to 
(a)	The Respondent’s addresses  by post; 
(b)	By fax;
(c)	By e-mail to the Respondent’s email address listed in Nominet’s database and
(d)	By e-mail to postmaster at the Domain Name (returned undelivered).
4.	The Respondent filed a Response by email and in hard copy on 21st April 2005.  It appears that the Respondent had been given an extension of time for filing its response by Nominet, but I have no details of this extension, however, no complaint is made concerning it, and it does not appear to have caused any prejudice to the Complainant.  In the circumstances, I will treat it as valid.
5.	The Complainant did not serve a Reply. Mediation was attempted and, I assume failed.  I have not been told any details of the mediation process.  
6.	On 2nd June 2005, the Complainant paid the fee in order to obtain a decision of an independent expert. 
7.	On 6th June 2005, I confirmed to Nominet that I knew of no reason why I could not properly accept the invitation to act as expert in this case and further confirmed that I knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question my independence and/or impartiality.    I did not receive a reply, and sent a further email on 7th June 2005 re-confirming the above matters in response to which I was sent the relevant documents, after the delay described below, about which I was unaware until I received the paper file on 14th June 2005.  
8.	I have seen a copy of an email dated 9th June 2005 sent by Mr. Penman of Nominet, to Mr. Tarpey which says 
“The file is ready to go for decision, but we’ve spotted an irregularity.  We’ve had to ask for extra copies of the respondent’s supporting evidence.  He’s sent this, but it made us realise that there’s a change we never received the evidence first time around due to Oxford postal probleMrs.  Before we send the file for expert decision we need to establish whether you received supporting evidence with the response.  If you did, all’s well and good.  If not, we’ll need to make it available to you and you might want to make a non-standard reply under 13.b of the DRS Procedures.
….[list of missing documents from the Response]
Please let us know as soon as possible; your file cannot go to the expert until we hear from you.”

9.	I have seen a note made by Mr. Penman dated 10th June 2005 recording a conversation with Mr. Tarpey which states:
“Phone note 10/6/05
-	J. Tarpey phoned.  Yes, he did receive all the evidence with the response.  Can go to (IE)”

10.	In the circumstances, it would appear that the Complainant was given a further opportunity to file a response, but declined to do so.
Outstanding Formal/Procedural Issues (if any):
11.	None.
The Facts:
(1)	The Parties – the Complainant
12.	The Complainant is a limited company formed in 1997.  I understand, although I have not seen any supporting evidence to this effect, that the Complainant has a license to operate Coventry Airport.   
13.	I have not seen any details of the ownership of the Complainant, and I do not have any information concerning the relationship between the Complainant and TUI UK Limited in my papers, save that the Respondent states that, “In February 2004 it was further announced in the media that [the Complainant] had been purchased by the TUI/Thomsonfly organisation.”  I do not know whether or not this is correct.  The Respondent does not take any point as to TUI UK Limited’s capacity to represent the Complainant.
(2)	The Parties - the Respondent
14.	The Respondent is called LCS Cars.  I do not know whether this entity is a limited company or a partnership or a sole trader.  The Respondent owns or has use of some land at Oxford Road Service Station, about 2miles from Coventry Airport, from which it runs various businesses.
15.	I have not seen a signed copy of the Response (cf. DRS Procedures para. 5(v)), however I have seen signed correspondence between Nominet and Mr. Liggens, and accordingly, it seems likely that the lack of a signature is merely an oversight (which no-one else appears to have spotted) and I will therefore give weight to the Response in the normal way.
(3)	The Complainant’s rights

16.	The Complaint states:
“The Complainant has rights in the domain name because: 
(a) It is registered at Companies House under the name West Midlands International Airport Limited and has been since 24th September 1997. A copy of the company details extracted from the Companies House website is attached as Exhibit 1. 

(b) West Midlands International Airport Limited trades under the name “Coventry Airport” and has done so since its incorporation. Attached as evidence of this are the following letters:
Exhibit 2 A sample letter incorporating the Coventry Airport letterhead from 2004; 
Exhibit 3 A sample letter incorporating the Coventry Airport letterhead from 2003; and 
Exhibit 4 A sample letter incorporating the Coventry Airport letterhead from 2002. 

In addition, we attach a copy of West Midlands International Airport Limited’s (WMIAL) entry on the Data Protection Register confirming its status as a Data Controller (Exhibit 5). The highlighted section indicates that WMIAL recorded the fact that it trades as “Coventry Airport” when the register entry was submitted. 

The Complainant advertises as Coventry Airport in Flight International Directory (Exhibit 6) and in the Yellow Pages and at Yell.com. A letter confirming the airport’s entry in the Yellow Pages and at Yell.com is found at Exhibit 7. 

(c) The Complaint provides services under the name Coventry Airport as evidenced by the publication of a document containing Airport Fees, Charge and Information. The “Airport Fees, Charges and Information” brochures for 1996 to 2001 are attached as Exhibits 8,9,10 and 11.”

17.	No trademarks relating to Coventry Airport are registered by any party.
18.	I do not find items (a) and (b) to be evidence of any rights in the name Coventry Airport.  The correspondence referred to :
(a)	Relates to difficulties the Complainant had in relation to certain issues relating to the real property of Coventry Airport; the letter of 12th February 2004 is an internal document between two officers of the company (as far as I can tell), the (incomplete) letter of 20th October 2003 is a letter to a neighbour alleging infringement of the runway and the letter of 6th August 2002 is a letter indicating that the Complainant does not have power to sell any part of the land.
(b)	Each letter clearly shows the name of the Complainant (in large type) under the name and logo of Coventry Airport.
19.	Similarly, item (c) (the Data Protection Register entry) does not seem to me to be evidence of any rights in the name “Coventry Airport”, neither does Exhibit 6, which is simply an entry in a directory for 1996/7 listing airports and services available to them.
20.	Exhibit 7 is a letter from Yell.com offering “Coventry Airport” a free entry in the directory.  Exhibit 12 appears to be that entry.  
21.	Exhibits 8 to 11 are the front pages of the brochure for fees and charges, again using the same letterhead as the writing paper in Exhibits 2-4, which clearly shows the name of the Complainant under the words “Coventry Airport” and the logo, save that the covers for the 1996-1998 brochures show that the Name “Coventry Airport” is associated with the City of Coventry, which I assume is the legal owner, and former operator, of the airport.
22.	The hurdle which a complainant has to leap to establish rights in a name for the purpose of the DRS is not high.  I find the evidence which has been submitted to me in order to establish the Complainant’s rights in the Domain Name a puzzling selection, and I am surprised I have not been presented with any evidence of turnover or “recognition” by the Complainant.
23.	However, it is clear that the Complainant has been the operator of Coventry Airport for some time, and that it has developed a “style” incorporating the name of the airport and a distinctive logo which it uses on a regular basis and under which it has published its charges for some time.  Even though the style also incorporates the Complainant’s actual name, it seems to me to be almost inconceivable that the Complainant would not be able to protect the name “Coventry Airport” if a rival airport began to promote itself under that banner and, accordingly, I find that the Complainant has relevant rights in the name “Coventry Airport”.
24.	The Domain Name, however, is “coventryairportcarparking”, which is substantially different from the name in which the Complainant has rights.  For the purpose of the DRS, the Complainant must show that it has rights in a name which is “similar to” the Domain Name.   The words “carparking” are clearly descriptive, however (I believe consistently with the tenor of other DRS decisions), I find that the distinctive component of the Domain Name is the name “Coventry Airport” and the unique identifying character of this name, together with the generic term “car parking” does not detract nor sufficiently distinguish the Domain Name from the Complainant’s mark.
25.	In the circumstances, I find that the Complainant has rights in a name which is similar to the Domain Name.
26.	Both parties address the question whether the Complainant’s rights are in a name which is “wholly descriptive of the Complainant’s business”.  The Complainant’s business is, it would seem, running Coventry Airport, and that is the name in which I have found it has relevant Rights.  However, it seems to me that it is more accurate to describe the Complainant’s business as that of “airport operator”, and its place of business as Coventry Airport.  
(4)	The Complaint
27.	This Complaint was issued after 25th October 2004, and, accordingly, the amended DRS Policy and Procedures apply to it.  The amended DRS Policy and Procedures has introduced some new factors which may be considered as evidence of abusive registration, and states:
 3.	Evidence of Abusive Registration

a.         	A non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration is as follows:

i.           	Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily:

A.	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.      	for the purpose of unfairly disrupting the business of the Complainant;

ii.      	Circumstances indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant;

iii.       	The Complainant can demonstrate that the Respondent is engaged in a pattern of registrations where the Respondent  is the registrant of domain names (under .uk or otherwise) which correspond to well known names or trade marks in which the Respondent has no apparent rights, and the Domain Name is part of that pattern;

iv.   	It is independently verified that the Respondent has given false contact details to us; or

v.     	The domain name was registered as a result of a relationship between the Complainant and the Respondent, and the Complainant:

A.         	has been using the domain name registration exclusively; and

B.  	paid for the registration and/or renewal of the domain name registration.

b.       	Failure on the Respondent's part to use the Domain Name for the purposes of e-mail or a web-site is not in itself evidence that the Domain Name is an Abusive Registration.

c.        	There shall be a presumption of Abusive Registration if the Complainant proves that Respondent has been found to have made an Abusive Registration in three (3) or more Dispute Resolution Service cases in the two (2) years before the Complaint was filed. This presumption can be rebutted (see paragraph 4 (c)).

28.	The Complaint does not refer to the DRS Policy or Procedures expressly at all.  It makes 3 main allegations:
The Complainant’s reasons for believing that the Domain Name in the hands of the Respondent is abusive are that the Domain Name 
(a) was primarily registered to stop the Complainant registering it despite its rights in the name; 
(b) was primarily registered to unfairly disrupt the Complainant’s business; and 
(c) was used by the Respondent in a way which already has confused people into thinking that it was controlled by the Complainant. 

29.	(a) is consistent with Paragraph 3(a)(i)(B) (Blocking Registration); (b) is consistent with Paragraph (3(a)(i)(C)(unfair disruption) and (c) is consistent with Paragraph 3(a)(ii) (confusion).  I will deal with each allegation separately.
(5)	Blocking Registration
30.	The Complaint states:
The Respondent registered the Domain Name on 20th February 2004.   On 30th March 2004 the Complainant registered its domain name “parkingatcoventryairport.co.uk”. The Respondent is a direct commercial competitor of the Complainant and it appears that the name was registered in advance of the Complainant being able to do so with a view to profiting from the name. 

31.	The Response states:
On or around 13 December 2003 it was announced by the local media that Thomson fly a part of TUI were planning to commence low cost passenger flights to several European destinations flying from Coventry Airport.

We were aware that the existing car parking arrangements at Coventry Airport were somewhat limited and that the LCS garage site at Oxford Road Service Station may be or interest in this regard.

We contacted the airport by telephone and were advised to speak to Mr Stephen Gray who we believe to be or was then the Commercial Manager. We discussed our proposals briefly with Mr Gray who suggested that we write to the airport and we were given the airport name and address as

West Midlands International Airport Ltd 
Dakota House
Coventry Airport
Coventry CV8 3AZ           Copy of this letter Annex 1

No formal response was received from West Midlands International Airport Ltd despite follow up phone calls.

In February 2004 it was further announced in the media that West Midlands International Airport Ltd had been purchased by the TUI /Thomsonfly organisation. Also at this time it was made known that this change of ownership would benefit local business/stakeholders as a result of the commencement of low cost flights in terms of employment and business opportunities. At this point it was decided that LCS would develop and market its own car park facility for passengers travelling to and from Coventry Airport.

On 31 March 2004 Thomsonfly commenced its operations from Coventry Airport and a few days later LCS opened its car park facility for passengers flying from the airport. All was well relations between LCS and the Thomsonfly staff were initially very amicable and indeed on May 27 2004 the Thomsonfly Customer Services Director Mr Mike Morton visited the LCS site with a view to increasing car park capacity and designating LCS as a potential overflow site. Although nothing further transpired following this visit relations remained amicable until 27 August 2004….

Market Research

An exercise was originally undertaken to examine how similar offsite car parks were being marketed at other regional airport locations and we found the following website url www.birminghamairportcarparking.com, www.lutonairportcarparking.com and  www.stanstedairportparking.co.uk (annex2)  which are all operated by independent car park operators. Given the already established naming convention it was appeared reasonable to follow this criteria…

At no time did the respondent register the domain name to prevent West Midlands International Airport Ltd using it. There were and possibly still is many suitable derivatives available to the applicant…

Reasons for these beliefs
a) Blocking registration. LCS did not register the web name in advance of the applicant with a view to profiting from the name at a later date. There is no evidence whatsoever to support this allegation.”

32.	There is no doubt that the Respondent’s registration does in fact prevent the Complainant from registering it.  However, the test is whether the Domain Name was registered “primarily” for that purpose.  Bearing in mind the explanation given by the Respondent, as set out above, it appears to me that the Respondent registered the Domain Name primarily to promote its own legitimate business, which, at the time of registration, and for some time afterwards, it carried on without let or hindrance from the Complainant, and possibly, with some tacit encouragement.  
33.	In the circumstances, I find that this head of complaint is not made out.
(6)	Unfair disruption
34.	The Complaint states:
It is the Complainant’s belief that the Domain Name was registered to unfairly disrupt the Complainant’s business. This is evidenced by the fact that the domain name chosen is not connected to the trading name of the Respondent and that the Respondent appears to make no independent use of the name. The Respondent advertises under the name of “LCS Cars” and is registered under this name at yell.com (please see Exhibit 12). It appears that the Respondent simply uses the Domain Name to get customers to its site. In addition, we have evidence that the Respondent’s use of the business has resulted in unfair disruption to the Complainant’s business. 

Exhibit 13 is a copy of a letter which was received by the Complainant from one of its passengers travelling through Coventry Airport. In his letter the passenger states that not only was he confused by the LCS Website (as discussed below) but that he was so disappointed by his experience of parking at Coventry Airport that in the future he plans to travel from Birmingham instead. In this case, the actions of the Respondent are not only having a detrimental effect on the official Coventry Airport car parking service (operated from www.parkingatcoventryairport.com) but also on other services operated out of the airport by companies within the Complainant’s other business areas (shop sales etc.) and those of the other companies within its group (i.e. flights sold and operated out of the airport by Thomsonfly). 

35.	The letter referred to is in fact exhibit 14.  It is not clear who it was written to, but it describes an unhappy experience by one passenger with the Respondent’s service, and does indicate that the passenger thinks he will travel from a different airport next time. The letter is undated, but was probably written in about June 2004.
36.	The Response states:
b) The domain name was certainly not registered with any object whatsoever to unfairly disrupt the applicants business. LCS are supportive of the applicants business and indeed in many instances assisted the applicant by offering valet parking - a service not provided by West Midland International Airport Ltd…

b) The domain name chosen was not chosen to unfairly disrupt the applicants business - the name was chosen as it accurately reflects the  car parking service being offered by LCS  to passengers travelling by car to and from Coventry Airport…

We refer to the applicants exhibit 13 ( Mr Flynn ). We would advise that LCS have not received any  written complaint from this passenger further the telephone conversation  referred to certainly in no way relates to LCS parking policy.  We question why he -  Mr Flynn should refer his apparent dissatisfaction to  West Midlands International Airport Ltd and not to ourselves. Further it is illogical that his disgruntlement with a third party ( although we have no knowledge of this )  should result in him wishing to penalise West Midlands International Airport Ltd by taking his future custom elsewhere.

37.	Again, the test is whether the Domain Name was registered “primarily” for the purpose of unfairly disrupting the Complainant’s business.  
38.	I do not see any evidence to suggest that that was the Respondent’s purpose, rather the contrary.  Further, I do not think that the letter from Mr. Flynn is supportive of a suggestion of unfair disruption. Mr. Flynn had an unfortunate experience of the kind that is bound to occur, without any improper motive, in any industry which offers services to consumers, and was one of the normal vicissitudes of such a business.
(7)	Confusion
39.	The Complaint states:
The Respondent is a direct commercial competitor of the Complainant and is using the Domain Name in a way which is confusing people into believing it is operated or authorised by or otherwise connected with the Complainant. 

We have evidence of this in the form of a number of letters from customers. We attach as Exhibit 14 a copy of a letter which a passenger forwarded to us, having originally sent this letter to the Respondent. In the letter the passenger refers to: “the grossly misleading way in which you conduct your business via the Internet by purporting to be the official car parking service for Coventry Airport” In addition she states that: “the fact that you are a private firm/individual acting independently of the Airport Authority should be made crystal clear on your web site and in your correspondence to avoid any possibility of confusion or misunderstanding” 

At the time of writing we can confirm that this is not the case and there is no disclaimer on the Domain Name indicating that the Respondent is in no way associated with the Complainant. By way of further evidence we attach Exhibit 15. This refers to a verbal complaint received from a passenger who informed us that she was convinced her booking for parking was for the official Coventry Airport Car Park. We also refer again to Exhibit 14.  In this exhibit another customer stated that “the impression we got from LCS Car Hire is that they were at the airport as they advertised their website as www.coventryairportcarparking.co.uk and we were led to believe that we would be parked at the airport”. 

40.	The Response states:
c) At no time have LCS attempted to confuse customers into the belief that the LCS Car Park facility is operated and owned by the applicant…

The domain name has no direct influence on attracting customers to the LCS website this is achieved by pay per click marketing….

Exhibit 14 We totally refute that any information given on the LCS website can support  the statement made by Mrs Hipwell that LCS purport to be ’the official car parking service for Coventry Airport’.  Further Mrs Hipwell states that we should make it crystal clear that LCS is a private firm acting independently - well we do both of these things ! It is apparent from Mrs Hipwell’s correspondence that she relied on a third party for her parking information and has not actually seen the LCS website which would account for her misunderstandings. Further Mrs Hipwell also states that she arrived late to the airport further compounding her self imposed difficulties.

We refer to exhibit 15 the applicant refers to a third passenger that states she was convinced her booking for parking was for the official Coventry Airport Car Park. We do not know who this passenger was and therefore cannot comment on a unsubstantiated allegation.   

41.	The DRS Policy (paragraph 3) states that the following may be evidence of abusive registration:
Circumstances indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant;
42.	I have not been specifically shown a copy of the website as it existed in 2004 although it seems likely from the papers that the printouts I have seen are the same as the original site. The home page which both parties have presented clearly states:
“Coventry Airport Car Parking is a new independent facility available from LCS Cars and Self Drive - a family business established for over 25 years within the automotive sector. We are pleased to offer passengers travelling to and from Coventry Airport secure low cost car parking just 2 miles from Coventry Airport. Click here to book now!”
43.	I have also seen a copy of a booking form (presented by the Complainant) which states:
“From	LCS Cars <info@coventryairportcarparking.co.uk>
Thank you for booking with coventryairportcarparking.co.uk… For directions to our carpark, please visit our location page [relevant url].”
44.	Mr. Flynn’s complaint indicates to me that he thought from the information on the Respondent’s website that the Respondent’s premises were at the airport (until he telephoned them and was corrected) however it seems clear that he understood that the carpark was independently operated.  The last paragraph
“Could something be done on his website to inform people that he has absolutely nothing to do with Coventry Airport itself.  Does anyone vet these sites when they are given a contract…”
does tend to indicate that he was confused as to whether there was some sort of approval or authorisation of the Respondent by the Complainant, but he, in common with Mrs. Hipwell, does not appear to have appreciated or noticed the statement referred to in Paragraph 42 above.   
45.	Mrs. Hipwell appears to have thought that the website “purported to be the official car parking service for Coventry Airport” and describes how she found the website using a search engine.  Mrs. Hipwell relied on her sister in law for directions to the carpark which were, unfortunately, to the actual airport carpark, not the Respondent’s carpark.  It is impossible to say whether Mrs. Hipwell received a booking form with the URL pointing to the carpark location, or whether she saw the clear statement set out in Paragraph 42 above.
46.	I attach little weight to the hearsay evidence referred to in Exhibit 15.
47.	It is clear that there have been some problems caused by the use of the Domain Name.  However, the only evidence of any weight in a period of nearly a year’s trading which the Complainant has managed to provide is 2 letters from customers who, if they had seen the statement referred to, or clicked on the “map and directions” button on the website or the URL in their booking forms, both of which must have at some time appeared before them, would not have ended up in the unfortunate situation in which they found themselves on the day of departure. 
48.	Mrs. Hipwell received a polite but firm reply from the Respondent as follows:
“Thank you for your email. We are sorry to learn of your experience and reply as follows:
We consider our website to be clear and unambiguous in terms of who we are, what we do and where we are based. The “home” page states that LCS in an independent company, being established for over 25 years.  In common with most websites, there are a number of pages available to browse, including a page containing Map and Directions.
However, we sympathise with the chain of events you outlined and in this instance, we are authorising a refund of the £40 parking charge paid to ourselves.
We hope that you will consider using the LCS parking service in the future; should you do so, on production of this email, a discount of £10 will be applied to your account.”
49.	This reply did not apparently satisfy Mrs. Hipwell, who took the matter to the Complainant.  In my view, the Complainant has opportunistically elevated the importance of Mrs. Hipwell’s letter.
50.	Mr. Flynn did not complain directly to the Respondent.
51.	However, whilst the letters are evidence of relevant actual confusion, albeit in my view more than likely caused by the disgruntled passengers themselves than by the Respondent’s use of the Domain Name, the fact that actual confusion has occurred is not a conclusive test of abusive registration – hence the use of the word “may” in Paragraph 3.    In my view, the use of the term “abusive” in the test must import some kind of nefarious motive or intention on the part of the registrant, which must be proved on the balance of probabilities, looking objectively at all the evidence, by the Complainant.
52.	In my view, the Complainant has failed to make out its case that the Respondent deliberately used the Domain Name to encourage passengers to believe that there was any necessary connection between the Domain Name and the Complainant; on the contrary, it is clear from the material I have seen that the Respondent tried to make it clear that it was independent of the airport, and gave easily accessible directions to its facility in an attempt to run a legitimate business in good faith.  The Respondent’s choice of the Domain Name appears to have been based on a reasonable belief that “Coventry Airport” was simply the name of a geographical place (Paragraph 5 of the Response), and on its own research that other businesses had registered similar domain names in relation to carparking at other airports rather than any intention to trade off the Complainant’s name.
53.	Neither party referred me to any authorities.  I have considered my decision in DRS 2316 skovby.co.uk and the decisions referred to there.  It seems to me that the rationale of the DRS Appeal Panel’s decision in DRS 00248 seiko-shop.co.uk and spoon.co.uk is distinguishable from the present case because there is no registered trade mark here for the Complainant to seek to protect.  I was only barely persuaded that the Complainant had relevant Rights, on the basis of the evidence I have seen, and I sympathise with the view that the Respondent takes that the name “Coventry Airport” is a freely available name of a place.  In my view, the Respondent is not attempting to pass itself off as Coventry Airport, and the rights accorded to registered holders of trademarks are, in my view, of a wholly different nature, being accorded by a statutory process and being a matter of public record.  In those circumstances, it seems to me that, even though there is some evidence of confusion, absent evidence of motive, it is insufficient to establish abusive registration.
(8)	General
54.	The Complaint does not give any of the prior history of what is obviously an acrimonious dispute between the parties, which arose once, and only when, the Complainant made its own arrangements for carparking elsewhere.
55.	The Response states:
On 31 March 2004 Thomsonfly commenced its operations from Coventry Airport and a few days later LCS opened its car park facility for passengers flying from the airport. All was well relations between LCS and the Thomsonfly staff were initially very amicable and indeed on May 27 2004 the Thomsonfly Customer Services Director Mr Mike Morton visited the LCS site with a view to increasing car park capacity and designating LCS as a potential overflow site. Although nothing further transpired following this visit relations remained amicable until 27 August 2004 when Mr Morton advised LCS that they were no longer welcome on the airport site and were to be excluded from entering the airport with immediate effect. The reason given were primarily commercial in that Thomsonfly now had adequate car parking facilities in place and that LCS were impacting on car parking profit potential. The relationship between LCS and Thomsonfly staff changed dramatically from this time onwards in that LCS and passengers were subjected to harassment and defamatory remarks in an attempt to dissuade  and obstruct the smooth running of the legitimate operation of the LCS Car Park.

Subsequent to this LCS were requested to attend a meeting on 17 September 2004 attended by Mr Adrian Jones and Mr Mike Morton for Thomsonfly and Mr Martin Liggins and Mr Paul Carter for LCS at this meeting LCS were told that the disputed domain name under which LCS had always operated was illegal and that if LCS did not stop using the disputed web name a legal process would commence.

The complainant also refers to a meeting held on the 29 November 2005 . This meeting was convened at the request of LCS to try to make progress and it was agreed mutually to be without prejudice and ought not to have been referred to in this complaint.

56.	The Complaint makes no mention of any of the history of this dispute prior to September 2004:
In September 2004 it came to the Complainant’s attention that the Respondent was the registered owner of the Domain Name “coventryairportcarparking.co.uk” and was using the site to enable users to make bookings for a car parking facility operated by LCS Cars. 

On 29th September 2004 the Complainant wrote to the Respondent requesting that the Respondent: cease using the domain name “coventryairportcarparking.co.uk” immediately; transfer the ownership of “coventryairportcarparking.co.uk” to the Complainant and confirm in writing that it had done so. The Complainant also put the Respondent on notice that in the event that the Respondent did not accept this offer, a complaint would be made to Nominet in respect of the Respondent’s use of “coventryairportcarparking.co.uk”. 

On 8th October 2004 the Complainant received a response to its letter from the firm of solicitors, Blythe Liggins, who indicated that they were acting for the Respondent. In their letter Blythe Liggins stated that their client was not willing to transfer the domain name to the Complainant. 

On 26th October 2004 the Complainant wrote to Blythe Liggins stating that it did not consider Blythe Liggins’ letter to have contained anything to alter its belief that the domain name should be transferred to it. In this letter the Complainant also provided Blythe Liggins and the Respondent with evidence of confusion on the part of its customers which it had been made aware of and complaints which it had received. 

On 12th November 2004 Blythe Liggins contacted the Complainant to request a meeting between the parties to discuss the matter in dispute. 

On 29th November 2004, Kelly Russ and Adrian Jones (on behalf of the Complainant), Richard Thornton (on behalf of Blythe Liggins) and Martin Liggins and another gentleman (on behalf of the Respondent) attended a meeting at the offices of Coventry Airport. At this meeting the Complainant reiterated its request that the domain name be transferred to it. The Respondent indicated that they would be prepared to consider the transfer of the domain name to the Complainant. However the Respondent made clear that any transfer would be dependent upon the Complainant allowing the Respondent access to their premises for the purposes of dropping off their customers (this is something which the Complainant currently prevents the Respondent from doing on the basis that the Airport operates with limited space). The Complainant made clear it viewed the two issues as separate ones and was not willing to consider any kind of trade off as they considered that it was legally entitled to prohibit the Respondent from accessing its premises and that this should not impact upon any proceedings to be taken with regard to the domain name. 

57.	I have not received copies of any of the letters referred to in this part of the Complaint.    The Complainant may or may not be right in its contention that it is entitled to exclude the Respondent from Coventry Airport so as to prevent the Complainant from offering a satisfactory service in competition with its own facilities, but this is not a matter for Nominet to decide.   Inspection of the relevant lease and/or license, and any relevant statutory and byelaw legislation might assist the parties to resolve the issue.  
58.	It seems likely that the difficulties which have arisen are a result of inadequate facilities at the airport itself, which the Complainant or its parent took time to rectify to their satisfaction, rather than because of the entrepreneurial spirit of local businesses with facilities to offer nearby who were able to plug the gap more quickly in the interim.   
59.	It seems to me that the Complainant now seeks to use the Nominet procedures in order to try to shut out its legitimate competitors and is itself abusing them.
Decision
60.	I find that, whilst the Complainant has rights in the Domain Name, it is not an abusive registration in the hands of the Respondent.  Accordingly, no action should be taken on this Complaint. 

KIRSTEN HOUGHTON FCIArb.		22nd June 2005	

Nominet UK Dispute Resolution Service
DRS 02484
west midlands international airport limited
- AND -
LCS CARS

RE:
COVENTRYAIRPORTCARPARKING.CO.UK

Decision of Independent Expert

KIRSTEN HOUGHTON FCIArb.
Quadrant Chambers
10 Fleet Street
London EC4Y 1AU