Nominet UK Dispute Resolution Service

DRS 3906

Healthcare Commission v. Diego Baker

Decision of Independent Expert

1.	Parties

Complainant:		Healthcare Commission
Country:		GB

Respondent:		Diego Baker
Country:		AU

2.	Domain Name

The domain name in dispute is healthcarecommision.org.uk (“the Domain Name”).

3.	Procedural Background

3.1	The Complaint was received in full (including annexes) by Nominet on 7 August 2006. Nominet validated the Complaint and sent a copy to the Respondent on 8 August 2006, informing the Respondent that he had until 31 August 2006 to lodge a Response.  

3.2	Since no Response was received by the deadline (or at all), the dispute did not proceed to Informal Mediation. On 11 September 2006 the Complainant paid Nominet the required fee to obtain a decision of an Expert pursuant to paragraph 7(a) of the Nominet UK Dispute Resolution Service (“DRS”) Policy ("the Policy").

3.3	Nominet invited me, Anna Carboni, to provide a decision on this case and, following confirmation to Nominet that I knew of no reason why I could not properly accept the invitation to act in this case and 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, Nominet appointed me as Expert on 12 September 2006. 

4.	Outstanding Formal/Procedural Issues (if any)

4.1	Since the Respondent has not submitted a Response, I have checked the Complaint file to determine whether there are any exceptional circumstances which should lead to my taking any action other than proceeding to a decision pursuant to paragraph 15(b) of the DRS Procedure (“the Procedure”). In particular, I have looked at the methods used to notify the Respondent of the Complaint.

4.2	The name and address given for the Registrant in Nominet’s database entry for the Domain Name are identical to those of the Respondent as set out in section 1 above. There is also an email address of fuzza@fuzza.com. The Administrative Contact is listed as Stephen Bjerking at an address in Melbourne, Australia, with the email address of sbjerking@vanguardintegration.com.

4.3	The WHOIS search result for the Domain Name also names Diego Baker as the Registrant.

4.4	The Complaint file discloses that Nominet attempted to notify the Respondent of the Complaint by the following means: 

i.	by e-mail to fuzza@fuzza.com and sbjerking@vanguardintegration.com (respectively the Respondent’s and Administrative Contact’s e-mail addresses in Nominet’s database entry for the Domain Name), copied to postmaster@healthcarecommision.org.uk, (in accordance with paragraph 2(a)(ii)(A) of the Procedure); and

ii.	by airmail to the postal address given for the Respondent in Nominet’s database and the WHOIS entry.

4.5	These are several of the various appropriate means of communicating the Complaint to the Respondent which are provided for in paragraph 2(a) of the DRS Procedure, and any one of them should have been sufficient.

4.6	The file reveals that the copy sent by post was returned by the Adelaide Mail Centre, marked “return to sender – no letter box”. However, no delivery failure messages were received from any of the email addresses.

4.7	Nominet quite correctly used the details that had been provided by the Respondent on registration of the Domain Name (among other contact details). Pursuant to Nominet’s standard form registration contract, the Respondent will have agreed to keep Nominet informed of his correct contact details. In these circumstances, it is appropriate that Nominet should take the contact details at face value. I therefore proceed to decide this case on the basis that the Respondent has been properly notified of the Complaint and, if he has not, he has only himself to blame.

5.	The Facts

5.1	The Complainant is a UK-based statutory body that was established on 1 April 2004 by the Health and Social Care (Community Health and Standards) Act 2003 to inspect and regulate health services in the National Health Service and independent healthcare sectors. The full name of the Complainant is the Commission for Healthcare Audit and Inspection, but this name is commonly abbreviated to the Healthcare Commission.

5.2	The Complainant’s role is to ensure patient safety, which it does by assessing the provision of healthcare against certain standards and by making information on healthcare available to the public. It does this both through a website found at www.healthcarecommission.org.uk and by issuing leaflets, newsletters and other publications, as well as providing information at conferences and through the media. The Complainant registered the domain name healthcarecommission.org.uk on 27 February 2004. (Although this pre-dates the date on which the Complainant says it was established, a WHOIS search does confirm the date and ownership of this domain name, so the Complainant must have existed in some form by 27 February 2004, but perhaps was not active until 1 April 2004. Nothing turns on this.)

5.3	The Respondent is an individual called Diego Baker, who has a contact address in Darwin, Australia. There is no information about his business activities on the file, save for those described in the next two paragraphs in connection with his use of the Domain Name.

5.4	The Respondent registered the Domain Name on 12 August 2004. The Domain Name currently resolves to a website at the web address www.healthcarecommision.org.uk, which lists numerous entities and provides links to their respective websites, many (but by no means all) of which appear to have some connection with healthcare. It is not clear how long this website has been active, though it certainly pre-dated 19 May 2006, which is when the Complainant wrote a letter of complaint to the Respondent, raising concerns about his ownership and use of the Domain Name and asking him to stop operating it and/or to transfer it to the Complainant. That letter was returned marked “return to sender – no letter box”.

5.5	Although (slightly oddly) it is not the subject of this Complaint, it appears from the file that the Respondent has also registered the domain name healthcarecomission.org.uk, which resolves to a very similar website to that described above, found at www.healthcarecomission.org.uk. In case it is not immediately obvious, this latter domain name misses out one “m” from the correct spelling of the word “commission”, whereas the Domain Name in issue misses out one “s”.

6.	The Parties’ Contentions

Complainant

6.1	The Complainant’s contentions can be summarised as follows:

(1)	The Complainant has rights in respect of the name “Healthcare Commission”, as a result of operating under and being known by that name and, in particular, using it as part of its web address, on its website, and in all its correspondence and publications.

(2)	The Domain Name is similar to the name “Healthcare Commission”, in that it comprises a misspelling of the name as it omits the second ‘s’ in “Commission”.

(3)	The Domain Name, in the hands of the Respondent, is abusive because it was:

(a)	primarily registered to unfairly disrupt the Complainant’s business;

(b)	used by the Respondent in a way which has confused people into thinking that it was controlled by the Complainant; and

(c)	registered with incorrect name or address details.

6.2	In support of its case that the Domain Name was primarily registered to unfairly disrupt the Complainant’s business, the Complainant (referred to as “the Commission” in the extracts below) states the following (with my own comments added in square brackets):

“The disputed Domain Name is confusingly similar to the Respondent’s domain name and ... is designed to divert those users who mistype the word ‘commission’. Once at the Respondent’s website, the user is presented with a series of links to commercial sites offering, amongst other things, health care insurance. This may lead the user to believe that the Commission endorses these links and products, when it does not. In fact the Commission has no control over these sites and has no role in relation to the provision of health care insurance. See Exhibit 5 and 6 [these are printouts from the Respondent’s website printed on 3 May 2006 and 17 July 2006]. 

Other links from the Respondent’s website are to sites offering loans, or to sites offering health care or associated activities, such as dentistry or laser eye surgery. Again, the user may be led to believe that the Commission endorses or recommends these sites or products. The Commission does not have any responsibility for the provision of loans. Generally, the Commission takes great care to maintain its reputation and not to be seen as endorsing any particular product or health care provider. 

The Respondent’s website formerly contained links to sites whose titles indicated a pornographic content. This was likely to damage the Commission’s reputation as a public body and a regulator of health care. Though those links do not appear at present, there is nothing to prevent them doing so in the future if the Respondent’s registration is allowed to continue. 

The Commission has a statutory duty to make information on health care in the NHS and the independent sector available to the public. This it does by publishing on its website all reports of its investigations into health care, together with its annual performance ratings of NHS Trusts. This role of making information available is increasingly important if patients are to make an informed choice as to where they receive their healthcare. The Commission will be prejudiced in the performance of this duty if members of the public accidentally mistype its name and are diverted to the Respondent’s website, thus being hampered in accessing information in which they have a legitimate interest. 

The Commission’s website is also of use to health care providers, as it contains information as to the requirements on independent providers to register with the Commission, and information of interest to NHS bodies on the Commission’s activities. They too may be disrupted in accessing that information by the Respondent’s registration of the disputed Domain Name. 

The Commission does not believe that the Respondent has any legitimate reason for registering the disputed Domain Name. The existence of that name is likely to confuse users into believing the name is connected with the Commission, which in turn is likely to have an adverse impact on the Commission in the performance of its statutory functions and on its reputation as a public body. Most importantly, this may have adverse consequences for members of the public or patients using health care services which the Commission is charged with regulating.”

6.3	In support of its case on confusion, the Complainant states:

“The Commission has recently received a complaint from an NHS Trust drawing its attention to the existence of the Respondent’s website. See Exhibit 7 [a printout of an email from a Paul Searle at Essex Rivers NHS, sent via the Complainant’s website, stating: “Did you know there seems to be a spoof site pretending to be you? I misspelt your name and used only one M and got pop ups, ads of all sorts. What’s going on? www.healthcarecomission.org.uk”]. If other public bodies have been diverted to the Respondent’s site then the risk is that members of the public will, too. 

The Respondent’s website is designed to deceive users into believing the site is controlled by the Commission. The recommended links include items such as “Investigation Budock Hospital” and “Patient Survey” when in fact these links take the user to more commercial sites. See Exhibit 6. These links are designed to be confused with areas of the Commission’s legitimate business. The first refers to an investigation the Commission recently carried out into allegations of abuse of patients with learning difficulties, which attracted national attention.” 

6.4	Finally, the Complainant’s contention that the Domain Name was registered with incorrect name or address details is expanded as follows:

“The Commission carried out a search using the WHOIS service which showed the Respondent to be registered at an address in Darwin, Australia. When the Commission wrote to the Respondent at that address, the letter was returned marked ‘return to sender no letter box’. See Exhibit 4 [a photocopy of the envelope, as returned].”

Respondent

6.5	The Respondent has not filed a Response.

7.	Discussion and Findings:

General

7.1	Paragraph 2 of the Policy provides that, to be successful, the Complainant must prove on the balance of probabilities that: 

i.	it 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 (as defined in paragraph 1 of the Policy).

7.2	In the absence of a Response from the Respondent, I must first consider whether the Complainant has established a prima facie case on the face of the Complaint. If it has done so, I must then consider whether there are any circumstances which prevent that from being sufficient to satisfy the burden of proof.

Complainant’s Rights

7.3	Under paragraph 1 of the Policy:

 “Rights includes, but is not limited to, rights enforceable under English law. However, a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant’s business.”

7.4	Previous cases have established that this broad definition extends to registered trade mark rights and unregistered rights in names and marks, such as rights in passing off in the United Kingdom and similar rights in jurisdictions elsewhere.

7.5	The Complainant has not mentioned any registered trade mark rights in respect of the name “Healthcare Commission”, but has given details of use of this name in connection with its activities. 

7.6	The name “Healthcare Commission” is certainly descriptive of the Complainant’s role as a body which has been granted powers to carry out particular tasks and duties in relation to healthcare. But, does this bring the name into the exclusion in the second sentence of the definition of “Rights”? In my view, it does, unless the Complainant has shown that this descriptive name has acquired a secondary meaning, such that members of the public will associate the name “Healthcare Commission” uniquely with the Complainant, as opposed to just any entity which might be carrying out delegated duties in relation to healthcare.

7.7	It is clear from the Complaint and annexes that: (i) the Complainant has called itself the “Healthcare Commission” since at least some time in 2005, which is the date of the copyright notice on its publication entitled “Strategic Plan 2005/2008” (exhibit 2); (ii) it has had an active website at www.healthcarecommission.org.uk since at least the same time (as it is also referred to in exhibit 2); (iii) it has owned the domain name healthcarecommission.org.uk since 27 February 2004; and (iv) it has been actively pursuing its statutory functions since 1 April 2004. The Strategic Plan also gives an idea of the size and extent of the enterprise: the Complainant’s expenditure in 2004/5 was £62.4 million and its budget for 2005/6 is £78.7 million. A sizeable proportion of its budget for 2005/6 (£5.1 million) related to its priority to “actively engage patients and the public in [the Complainant’s] work”.

7.8	From this information, I find that a significant proportion of the public will have been exposed to the activities of the Complainant since its inception. The question then is whether these activities have always been conducted by reference to the name “Healthcare Commission”, or whether the Complainant has only recently adopted that abbreviation. The former certainly appears to be the inference that is intended to be drawn from the Complaint. However, it is not expressly stated, and the annexes relied on are all up-to-date publications which do not answer the question. Given the descriptive nature of the name, the extent and duration of use of the name is important in determining whether it has become more than “wholly descriptive”. In order to confirm for myself whether it was correct to infer that the Complainant has always used the “Healthcare Commission” abbreviation, I carried out one check for myself, which was to look up the Complainant’s web address on the website archive known as “Wayback Machine”, found on the internet at web.archive.org/web/web.php. There, I found that the Complainant’s website had been active at the same address as the current website since the beginning of April 2004 and that the name “Healthcare Commission” had been used prominently as the “trading” name of the Complainant from its inception.   

7.9	I conclude that the Complainant has done enough to establish a prima facie case that the name “Healthcare Commission” has come to be associated exclusively with the Complainant by a significant proportion of the public. The Complainant thus has goodwill in its activities by reference to that name and would have rights in passing off in the United Kingdom sufficient to prevent others from using the name in relation to similar activities (subject to the facts of any particular case). Given that the Respondent does not oppose the Complainant’s contentions and that my own double-checking has confirmed that the Complainant has used the name since early April 2004, I find that the Complainant does have Rights in the name “Healthcare Commission”.

7.10	Ignoring the suffix .org.uk, the name “Healthcare Commission” is very similar to the Domain Name. The only difference is the lack of a space between the two words and the typographical error of omitting the second “s” from “Commission”.  

7.11	The first limb of the test in paragraph 2 of the Policy is therefore satisfied. 

Abusive Registration

7.12	Paragraph 1 of the Policy defines an “Abusive Registration” as:

	“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.”

7.13	I must take into account all relevant facts and circumstances which point to or away from the Domain Name being an Abusive Registration.

7.14	Paragraph 3 of the Policy sets out a non-exhaustive list of factors which may be evidence that a Domain Name is an Abusive Registration. Those which are brought into play by the Complainant are as follows:

 	“3(a)(i) Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily:

	(A) …(B)…; 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) ...;

(iv) It is independently verified that the Respondent has given false contact details to [Nominet]”

7.15	Starting with paragraph 3(a)(i)(C), the Respondent is using the Domain Name to point to a website at www.healthcarecommision.org.uk, which contains lists of so-called “sponsored links” relating to products and services offered by a variety of commercial and other entities. The lists of links as I look at them while writing this decision are grouped by reference to the following headings: “Health Care; Nhs; Patient Survey; Ultralase; Recruitment; Standards; Surgeons Survival Rates; Heart Surgeons; Dentist Insurance; Angioplasty; Investigation Budock Hospital; Free Downloads”. When one looks at the links themselves, some are health-related (giving information about dentistry or laser eye surgery), or on the periphery of healthcare (such as private medical insurance), and some are totally unrelated to healthcare (such as free downloads of anti-spyware programs). The website looks very professional, the only oddity being the mis-spelling of “commission” in ”Healthcarecommision.org.uk” which appears in large print at the top of each webpage.

7.16	The printout at exhibit 5 to the Complaint shows that in May 2006 the Respondent’s website also contained a number of links to pornographic sites, billed as for example “Hardcore Live Sex Shows” and “Seduce Sexy Strippers”. These have disappeared for now.

7.17	There is no direct evidence as to whether the Respondent was aware of the Complainant and its website address when he registered the Domain Name, or as to his intentions generally. However, given that he has adopted two domain names that are only one letter different from the Complainant’s domain name, it is likely that he was aware that the equivalent domain name that incorporated the correct spelling of “healthcarecommission” was not available for registration. It would also be a remarkable coincidence that he chose the top and second level domains “.gov.uk” to follow “healthcarecommision”, if he were not aware of the Complainant’s website, given that he is an individual based in Australia, whereas the “.gov” second level domain is intended for public service enterprises or not-for-profit entities (see paragraph 8 of Nominet’s Rules of Registration and Use of Domain Names) and the “.uk” top level domain indicates a connection with the United Kingdom (though this is not a compulsory requirement). 

7.18	It is not uncommon for users of the internet to make typographic or keystroke errors when they type in their target web address or keyword search. Anyone who accidentally misses an ‘s’ out of “commission” when looking for the Complainant’s website would be directed to the Respondent’s website instead. This is not a case where a mistake would end on arrival at the wrong website. The Respondent’s website looks professional and informative and could well be mistaken for that of the Complainant. 

7.19	The Complainant itself has a statutory duty to make information on healthcare in the NHS and the independent sector available to the public, but it has to avoid being seen to promote or endorse the products or services of any particular healthcare provider. Anyone who proceeds to use the products or services promoted through the Respondent’s website might look to the Complainant for redress if things did not turn out well. Similarly, anyone finding pornographic links or other items that are clearly outside the scope of the Complainant’s proper activities might wish to complain to the Complainant or its Government regulators if they did not realise at that point that they had made a mistake in the web address.

7.20	I am also influenced by the Complainant’s point that healthcare providers themselves use the Complainant’s website to find information about how to register with the Complainant and other matters. If any individual from such an organisation, who had not previously accessed the Complainant’s website, were to arrive at the Respondent’s website as a result of a spelling mistake in the web address, they could waste a considerable amount of time in looking for the information that they seek.

7.21	In this way, the Respondent’s use of the Domain Name is likely to cause disruption of the Complainant’s business, as well as causing inconvenience to people who wish to use the Complainant’s website. In the absence of any explanation from the Respondent, or other circumstances, to justify the use of a typographical variation on the Complainant’s name in the Domain Name, I conclude that such disruption is or would be unfair.

7.22	As far as paragraph 3(a)(ii) is concerned, the Complainant has provided one example of an individual from an NHS Trust who found himself at the Respondent’s website, having made a typographical error when looking from the Complainant’s website. In that case, the individual concerned knew what he was looking for and therefore realised his mistake. However, as I have explained above, anyone who did not know what the Complainant’s website looked like might well believe that he/she had arrived there when in fact they had arrived at the Respondent’s website. I accept that there is a prima facie case for the potential for confusion.

7.23	As to the Complainant’s assertion that the Complainant has registered the Domain Name with incorrect name or address details, I do not believe that there is sufficient information to be sure of this. Although both the Complainant’s original letter and the postal copy of the Complaint were returned marked “return to sender – no letter box”, that does not necessarily mean that the address is incorrect. However, the Respondent’s choice of an address where mail cannot be received does indicate a certain reluctance to receive it, and there would be little sympathy for the Respondent if he were to complain that he had not received the Complaint by post.

7.24	Given my findings in relation to the Complainant’s other points, I do not need to make a finding of incorrect address details in this case and I decline to do so, particularly since he does appear to have given an email address that works (though again he has chosen to ignore the material sent to him by this means).

7.25	I have considered whether there are any factors in the Respondent’s favour which demonstrate that the Domain Name is not an Abusive Registration, some examples of which are given in paragraph 4 of the Policy. The Respondent has not submitted a Response, and therefore I have no explanation from his side as to any justification for adopting the Domain Name. It is not for me to argue his case. However, given the relatively descriptive nature of the Domain Name, I do consider the point raised by paragraph 4(a)(ii) of the Policy, to the effect that the Domain Name may not be an Abusive Registration if the Domain Name is generic or descriptive and the Respondent is making fair use of it.

7.26	As I have found earlier in this decision, the Domain Name is a typographical variant of the descriptive name, “Healthcare Commission”. It is thus descriptive of a body with delegated powers to carry out tasks and duties in relation to healthcare. The addition of the suffix “.org.uk” indicates (though does not guarantee) (i) that the body concerned is UK-based and (ii) that it is a public service enterprise or a not-for-profit entity. The average internet user would therefore be likely to assume that the Respondent is a UK body charged with issuing information in some official capacity and on a not-for-profit basis, possibly regulated by the Government.

7.27	Instead, the Respondent is an individual apparently based in Australia, who is likely to be earning click-through revenue via at least some of the numerous links to commercial sites featured on his website. This does not to my mind amount to fair use, in circumstances where the Complainant has established Rights in the name “Healthcare Commission”.

7.28	There is nothing else in the circumstances of which I am aware that assists the Respondent under paragraph 4 of the Policy or otherwise.

7.29	In all the circumstances set out above, I conclude that both limbs of the definition of “Abusive Registration” are satisfied in this case.

8.	Decision

I find that the Complainant has Rights in respect of a name which is similar to the Domain Name and that the Domain Name, in the hands of the Respondent, is an Abusive Registration. I therefore direct that the Domain Name healthcarecommision.org.uk should be transferred to the Complainant.

Anna Carboni

25 September 2006