Healthcare Commission -v- Domain Administration Limited

Nominet UK Dispute Resolution Service

DRS 04437

Healthcare Commission -v- Domain Administration Limited

Decision of Independent Expert

1.	Parties:

Complainant:	Healthcare Commission
	GB
	
Respondent:	Domain Administration Limited
	New Zealand

2.	Domain Name:

healthcarecomission.org.uk ("the Domain Name")

3.	Procedural Background:

The Complaint was filed electronically on 1 February 2007.  Nominet validated the Complaint and sent a copy to the Respondent.

No Response was received by Nominet.

On 14 March 2007 the Complainant paid Nominet the required fee for a decision of an Expert pursuant to the Nominet UK Dispute Resolution Service Policy ("the Policy").

Nominet invited the undersigned, Jason Rawkins ("the Expert"), to provide a decision on this case and duly appointed the undersigned as the Expert with effect from 23 March 2007.

4.	The Parties' Contentions:

Complainant:

The Complainant's submissions can be summarised as follows:

1.	The Complainant has rights in respect of a name or trade mark which is identical or similar to the Domain Name:

(1)	The Healthcare Commission (the "Commission") is the name by which the Commission for Healthcare Audit and Inspection is generally known.  The Commission is a body corporate established by the Health and Social Care (Community Health and Standards) Act 2003 to inspect and regulate health services in the NHS and independent health care sectors.  The Commission's role is to ensure patient safety which it does by assessing the provision of health care against certain standards and by making information on health care available to the public.

(2)	The Commission began operating in 2004.  The domain name healthcarecommission.org.uk had been registered to it on 27 February 2004.  The Commission refers to itself at the Healthcare Commission in all its correspondence, on its website, and in all its publications.

2.	The Domain Name is an Abusive Registration in the hands of the Respondent:

(1)	This is a case of "typo-squatting".

(2)	The Domain Name in the hands of the Respondent is abusive because it was primarily registered to unfairly disrupt the Commission's business; and because it has been used by the Respondent in a way to confuse people into thinking that the Domain Name is controlled by the Commission.

(3)	The disputed Domain Name is confusingly similar to the Commission'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.  A "related search" to "NHS Health Check" leads to a number of sites offering employment and training opportunities as well as computer services and health insurance.  Many of these sites bear no connection with health care.

(4)	The link on the Respondent's website to "Effective response to complaints about health services" opens a number of sponsored listings advertising a diversity of services such as complaints management software systems and endowment mortgages.  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 the content of the sites and has no role in relation to the provision of the services they seek to provide.

(5)	Other links from the Respondent's website are to sites advertising health insurance, cosmetic surgery and advice on how to care for diabetes.  Again, the user may be led to believe that the commission endorses or recommends these sites or products.  Generally, the Commission takes great care to maintain its reputation and not to be seen as endorsing any particular product or health care provider.

(6)	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.  Although those links do not appear at present, there is nothing to prevent them from doing so in the future if the Respondent's registration is allowed to continue.

(7)	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 on NHS Trusts.  This role in making information available is increasingly important if patients are to make an informed choice as to where they receive their health care.  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.

(8)	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.

(9)	The Commission does not believe that the Respondent has any legitimate interest for registering the disputed Domain Name.  The presence 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.

(10)	The Commission has received a complaint from the National Health Service Trust drawing its attention to the existence of websites based on the misspelling of Healthcare Commission.  If National Health Service Trusts have been diverted to these sites then the risk is that members of the public will be too.

(11)	The Respondent's website is designed to deceive users into believing the site is controlled by the Commission.  The recommended links include terms such as "NHS health check" and "Effective response to complaints about health services", when in fact these links take the user to commercial sites.  The Commission's statutory functions include the consideration of complaints about NHS treatment, and ensuring that private clinics comply with the regulations governing them.  These recommended links will be confused with areas of the Commission's legitimate operations.  

Respondent:

	No Response has been filed by the Respondent.  In this case, the absence of a Response is particularly significant because of a presumption against the Respondent which arises for another reason (see further below).

5.	The Facts:

	The Nominet Records show that the Domain Name was registered on 14 October 2004.  

	Based on the Complainant's submissions and a review of the materials annexed to the Complaint, set out below are the main facts which I have accepted as being true in reaching a decision in this case, together with comments where relevant:

(1)	The Healthcare Commission began operating in April 2004.

(2)	The Commission refers to itself as the Healthcare Commission in all its correspondence, on its website, and in all its publications.

(3)	On accessing the Respondent's website, the user is presented with a series of links to commercial sites, many of which do not even bear any connection with health care.

(4)	The Respondent's website previously contained links to sites whose titles indicated a pornographic content.

(5)	The Commission has received a complaint from a National Health Service Trust regarding the Respondent's website.

6.	Discussion and Findings:

General
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).

Complainant's Rights

Disregarding the generic .org.uk suffix, the Domain Name is clearly very similar to the name "Healthcare Commission" used by the Complainant.  The only difference is the omission of one "m".

As for Rights, the Complainant has been operating under the name Healthcare Commission since April 2004.  It uses that name in all its correspondence, on its website, and in all other materials.  It is therefore clear that people will know of the Complainant as the "Healthcare Commission", and there is no doubt in my mind that the Complainant has established rights in that name.

I therefore find that the first limb of paragraph 2 of the Policy is satisfied.

Abusive Registration

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."

Paragraph 3a of the Policy sets out a non-exhaustive list of factors which may be evidence that a Domain Name is an Abusive Registration.  The main factor which is of potential relevance in this case is as follows:
"iii.	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"

Before considering the relevance of this factor, it is also to be noted that there is a "three strikes and you are out" provision at paragraph 3c of the Policy which states the following:

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

The related paragraph 4c of the Policy states:

	"If paragraph 3c applies, to succeed the Respondent must rebut the presumption by proving in the Response that the Registration of the Domain Name is not an Abusive Registration."

In this case, the Complainant has not itself made reference to these provisions.  However, Nominet has drawn to my attention the fact that the Respondent has been found to have made an Abusive Registration in three or more previous cases.  In fact, there have been six such cases against the Respondent.  The decisions in those cases are dated as follows:

(a)	11 January 2007 (DRS 04229);

(b)	14 January 2007 (DRS 04245);

(c)	31 January 2007 (DRS 04292);

(d)	2 February 2007 (DRS 04293);

(e)	2 February 2007 (DRS 04298); and

(f)	16 February 2007 (DRS 04344).

The third of the above decisions against the Respondent would not, in fact, have been published on Nominet's website until around 6 February 2007; and certainly not by 1 February 2007, the date on which the Complainant filed the Complaint in this case.  In other words, there was no way that, at the time of filing its complaint, the Complainant could have been aware of the Respondent having had three decisions against it and paragraph 3c of the Policy therefore applying.  Nevertheless, my view is that, in deciding this case, I am entitled to take into account the fact that, at the time when the Complaint was filed, three decisions had in fact already been made against the Respondent; and I believe that I should take that into account.  In other words, I find that paragraph 3c of the Policy does apply.

Since paragraph 3c does apply, there is a corresponding presumption against the Respondent.  This presumption can only be rebutted by the Respondent proving in a Response that the registration of the Domain Name is not an Abusive Registration (as per paragraph 4c of the Policy).  Since the Respondent has not filed any Response, the end result of this is that there must be a finding that the Domain Name in this case is an Abusive Registration.

If I am wrong to apply paragraph 3c of the Policy, then I would still find that the Domain Name is an Abusive Registration.  In the light of the evidence, and the facts which I have accepted as being true (as set out above), it is clear to me that the Respondent is using the Domain Name in a way which will have confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant.  Alternatively, even if no actual confusion has occurred to date, paragraph 3 of the Policy is a non-exhaustive list of factors and it has been held in previous Nominet decisions that a likelihood of such confusion arising is also relevant.  I agree with this and also find that there is such a likelihood of confusion in this case.

Given the nature of the Respondent's websites and the products and services to which it links, which are not those of the Complainant and in many cases do not even have a connection with health care, it is clear that the Respondent's use of the Domain Name is unfairly detrimental to the Complainant's Rights; and also takes unfair advantage of those Rights.  In other words, I find that the Domain Name is an Abusive Registration, even if one does not take into account the "three strikes and you are out" provision in paragraph 3c of the Policy (combined with the lack of a Response by the Respondent).

7.	Decision:

Having found that the Complainant has rights in respect of a name which is identical or similar to the Domain Name, and that the Domain Name in the hands of the Respondent is an Abusive Registration, the Expert directs that the Domain Name healthcarecomission.org.uk be transferred to the Complainant.

Jason Rawkins	10 April 2007