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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Knights Lettings Ltd v Watkins [2007] DRS 4285 (09 February 2007) URL: http://www.bailii.org/uk/cases/DRS/2007/4285.html Cite as: [2007] DRS 4285 |
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Nominet UK Dispute Resolution Service
DRS Number 4285
Knights Lettings Ltd
v
Mr Lyndon Watkins
Decision of Independent Expert
Complainant: Knights Lettings Ltd
Country: GB
Respondent: Mr Lyndon Watkins
Vale of Glamorgan
knightslettings.co.uk - registered on 16 May 2006. .
The Complaint was lodged with Nominet on 8 December 2006. Nominet validated the Complaint and notified the Respondent of the relevant Complaint on 8 December 2006 and informed the Respondent that it had 15 days within which to lodge a Response.
On 4 January 2007, a response was received from the Respondent which was notified to the Complainant that day.
On 9 January 2007, a reply was received electronically from the Complainant with the hard copy document being received on 11 January 2007. (outwith the time limit).
No mediation having been possible, on 31 January 2007 the dispute was referred for a decision by an Independent Expert following payment by the Complainant of the required fee for a decision of an Expert pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service Policy ("the Policy").
David Flint, the undersigned, ("the Expert") confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as expert in this case and further confirmed that he knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question his independence and/or impartiality.
The hard copy of the Reply from the Complainant was received outwith the time limit set in the rules. However as the electronic copy thereof had been received within the time limit, the Expert has decided to accept the Reply into the proceedings.
The Complainant
a. The complainant has rights in the domain name because: a. it is registered at Companies House under the name Knights Lettings Ltd and has been since 22nd October 2003 on evidence produced.
b. It trades under the name Knights Lettings and has done so since 1998 and incorporated into a limited company on 22nd October 2003.
c. It has advertised using the name Knights Lettings since 1998. We annually spend around £12000 (twelve thousand pounds)on such advertisements, examples of which were exhibited.
d. It provides the service of lettings property under the name Knights Lettings by the brochure exhibited.
e. The Respondent was a tenant in a property managed by this company and became disgruntled when the overseas landlord notified the Complainant of his return to the UK and required occupation of his property under the terms of the assured shorthold tenancy under which the Respondent was occupying. On vacating the property a sum of £95.00 was retained to cover the costs of the carpets being cleaned throughout the property. The Respondent vacated on 4th May 2006 and on the 16th May set up the abusive website under the name Knightslettings.co.uk. Stickers have been placed over the Complainant's To Let boards directing people to this rogue website.
The Respondent
The domain name "knightslettings.co.uk" was registered to be used as a criticism site as described in Section 4b of the Nominet DRS Policy, which states "Fair use may include sites operated solely in tribute to or in criticism of a person or business." I do not dispute point one of the complaint regarding the complainants trading/company name, as this is why I registered this particular domain - as I have issue with them and their advertising spend is not really an issue as far as I am concerned, apart from to state that if they spend £12,000 annually (which was not at all proven in the annexes provided) then why not spend £5.99 and register the domain name in the first place. With regard to point two, I was a past tenant of Knights Lettings, and not only had one problem with the deposit but many problems as described on the site, perhaps this goes some way to showing the kind of records Knights keep as they seem to have conveniently omitted many other reported problems (as well as providing Nominet with an incorrect address for myself) - this in fact goes to the heart of the problem and the reason behind the site. I dispute the accusation that I placed "stickers" on their boards, and if in fact this had happened I would have expected a photograph as proof, not something knocked up in MS Word in two minutes and aside from that if I had gone about defacing their boards (which is entirely irrelevant for the purposes of this complaint) I would have done it in a much more stylish way and just added ".co.uk" to the end of their company name on the boards. As for controlling the content, well yes I do, as the webmaster, but not all comments are negative - the first comment (as left from the offices of Knights Lettings) was published, unedited within hours of them posting it.
Complainant
i) The domain name in the hands of the Respondent is abusive because it was: a. primarily registered to unfairly disrupt our business because it solicited any negative, spurious and abusive comments designed to damage the businesses reputation and thence its financial stability. [there doesn't appear to be a point "b"]
There is annexed to the Complaint a board sticker - removed from one of the Complainant's boards.
ii) It is apparent that the Respondent personally controls the content of the website and ensures that the comments are as vitriolic as possible and extremely personal and abusive in nature.
iii) The Complainant seeks transfer of the Domain Name.
Respondent
i) The domain name "knightslettings.co.uk" was registered to be used as a criticism site as described in Section 4b of the Nominet DRS Policy, which states "Fair use may include sites operated solely in tribute to or in criticism of a person or business."
ii) I do not dispute point one of the complaint regarding the complainants trading/company name, as this is why I registered this particular domain - as I have issue with them and their advertising spend is not really an issue as far as I am concerned, apart from to state that if they spend £12,000 annually (which was not at all proven in the annexes provided) then why not spend £5.99 and register the domain name in the first place.
iii) With regard to point two, I was a past tenant of Knights Lettings, and not only had one problem with the deposit but many problems as described on the site, perhaps this goes some way to showing the kind of records Knights keep as they seem to have conveniently omitted many other reported problems (as well as providing Nominet with an incorrect address for myself) - this in fact goes to the heart of the problem and the reason behind the site. I dispute the accusation that I placed "stickers" on their boards, and if in fact this had happened I would have expected a photograph as proof, not something knocked up in MS Word in two minutes and aside from that if I had gone about defacing their boards (which is entirely irrelevant for the purposes of this complaint) I would have done it in a much more stylish way and just added ".co.uk" to the end of their company name on the boards.
iv) As for controlling the content, well yes I do, as the webmaster, but not all comments are negative - the first comment (as left from the offices of Knights Lettings) was published, unedited within hours of them posting it.
1. I note the respondent accepts that the domain name is the trading and company name of this company.
2. The purpose of the domain name is to publish libellous and unsubstantiated accusations with a view of harming our business. In this respect it is abusive.
3. It is unacceptable that this company's brand name is used to direct traffic to a site whose sole purpose is to destroy this company's reputation.
4. We note that the respondent agrees that he is the webmaster and controls all items and comments posted on the site.
General
To succeed in this Complaint the Complainant has to prove to the Expert pursuant to paragraph 2 of the Policy on the balance of probabilities, first, that it has rights (as defined in paragraph 1 of the Policy) in respect of a name or mark identical or similar to the Domain Name and, secondly, that the Domain Name, in the hands of the Respondent, is an Abusive Registration (as defined in paragraph 1 of the Policy).
Complainant's Rights
The Expert is satisfied that the Complainant does have Rights in respect of a name or mark which is identical or similar to the Domain Name.
Abusive Registration
This leaves the second limb. Is the Domain Name, in the hands of the Respondent, an Abusive Registration? Paragraph 1 of the Policy defines "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."
A non-exhaustive list of factors, which may be evidence that the Domain Name is an Abusive Registration is set out in paragraph 3a of the Policy. There being no suggestion that the Respondent has engaged in a pattern of making Abusive Registrations and there being no suggestion that the Respondent has given to Nominet false contact details, the only potentially relevant 'factors' in paragraph 3 are to be found in subparagraphs i and ii, which read 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."
The Expert interprets "as" in sub-paragraph 3.i.B as being synonymous with "for the purpose of". Were it to be interpreted otherwise all domain name registrations would inevitably constitute "blocking registrations" for any later arrival wishing to use the name in question.
'Fair use' of a domain name is one factor which may be evidence that that domain name is not an abusive registration (paragraph 4 (a) (i) C of the DRS Policy). In assessing what is and is not fair use, paragraph 4.b. of the DRS Policy may come into play:
"Fair use may include sites operated solely in tribute to or in criticism of a person or business"
It may be necessary therefore to consider both the Respondent's intentions at the time of registration of the Domain Name and how the Domain Name has been used thereafter.
In his submission and in the content which he has placed on the website at site using the name, the Respondent makes it clear that he has a commercial dispute with the Complainant; the Complainant acknowledges this but has a different take on the facts. The DRS is not an appropriate forum for determining the veracity of such claims by either party.
The Decision of the Appeal Panel in DRS 02193 (Guidestar.co.uk) sets out the basis of dealing with "protest sites" where the name used is identical to a name in which the complainee has rights.
"Registering as a domain name, the name of another (without any adornment), knowing it to be the name of that other and intending that it should be recognised as the name of that other and without the permission of that other is a high risk activity insofar as the DRS Policy is concerned. Ordinarily, it would be tantamount to impersonating the person whose name it is.
Rarely will it be the case that deliberate impersonation of this kind will be acceptable under the DRS Policy. Various decisions under the DRS Policy have condemned such practices including the following:
"In the view of the majority of the Panel, in the context of a tribute site, the vice is in selecting a domain name, which is not one's own name, but which to one's knowledge is identical to the name of another, which one has selected precisely because it is the name of that other and for a purpose which is directly related to that other. For a tribute or criticism site, it is not necessary to select the precise name of the person to whom one wishes to pay tribute or criticise. In this case the domain name could have been 'ilovescoobydoo.co.uk', for example.
Taking the Domain Name in these circumstances arguably amounts to impersonation of the owner of the name or mark. Substantial numbers of people will have visited the Respondent's website (the Respondent admits to a total of over 37,000 visitors to his site) believing that they were visiting the site of the Complainant, a phenomenon sometimes referred to as 'initial interest confusion'. Prior to the posting of the disclaimer, those visitors might well not have been disabused. The fact that the Respondent was selling official merchandise may have encouraged those visitors in their belief that they were visiting an authorised/licensed site. Notwithstanding the Respondent's denial of any advantage, the Panel is of the view that on the balance of probabilities there must have been an advantage to the Respondent of some kind. Whether or not that 'advantage' has led to financial gain is irrelevant. The question is as to whether the advantage he has taken has been fair." [Appeal decision DRS 00389 – scoobydoo.co.uk]
and:
"The Expert should also add that, although there is no evidence to suggest the Respondent's purpose in registering the Domain Name, was one of the three purposes set out in paragraph 3(a)(i) of the Policy, the Expert concludes that there is no obvious reason why the Respondent could possibly be justified in registering the Domain Name for any legitimate purpose. The Domain Name comprises a distinctive made up name. It is identical to the Complainant's trade mark. There is no other UK company using the inventive word which comprises the Complainant's trade mark. In the hands of the Respondent the Domain Name constitutes a threat hanging over the head of the Complainant and there are many obvious and potentially damaging uses to which the Domain Name could be put." [DRS 00193 – harmankardon.co.uk]
The fact, if it be a fact, that the Domain Name is being used as part of a URL for a protest site is not of itself indicative of fair use. Paragraph 4.b of the DRS Policy merely indicates that such a use may constitute fair use. Much will depend upon all the surrounding circumstances, including in particular the identity of the domain name itself. A finding of fair use will be much more likely in relation to a '-sucks' domain name e.g. guidestarsucks.co.uk."
However, in the instant case, unlike that in DRS 02193, there is no evidence that the Respondent has ever used the name for other than a complaint site.
The Expert must, in coming to his decision have regard to the specific wording of the Policy,
"Fair use may include sites operated solely in tribute to or in criticism of a person or business."
The Expert is drawn to the word "may" which makes it clear that even if the site is "operated solely in criticism of a person or business", it may still be an abusive registration. On the other hand, it may not. The importance is to look at all the circumstances of the case and thereafter for the Expert to determine whether the use of a name meets the very narrow test for criticism sites.
In this case, the Expert is concerned that the name chosen by the Respondent is identical to the trading name of the Complainant; no prefix or suffix has been added which might indicate the fact of the protest.
However, unlike the situation in DRS 02193, the Respondent is not presently, nor is there any indication that the Respondent has ever, used the site other than "solely in criticism". There are no links to other businesses, no links to other sites, and no advertisements. The site is solely and simply "in criticism" of the Complainant.
In these circumstances, the Expert finds that the Domain Name is not an Abusive Registration within the definition of that term in paragraph 1 of the Policy on the basis that its use was fair as defined in paragraph 4b of the Policy.
In light of the foregoing findings, namely that whilst the Complainant has rights in respect of a name or mark which is identical to the Domain Name, on the basis that the Respondent is making fair use of the Domain Name as defined in the Policy, the Domain Name, in the hands of the Respondent, is not an Abusive Registration.
Accordingly, the Expert rejects the Complaint.
David Flint
09 February 2007