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Nominet UK Dispute Resolution Service |
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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> InfraVision Ltd v Moylan [2009] DRS 6712 (13 March 2009) URL: http://www.bailii.org/uk/cases/DRS/2009/6712.html Cite as: [2009] DRS 6712 |
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Complainant: InfraVision Limited
Country: UK
Respondent: Mike Moylan
Country: UK
infravision.co.uk ("the Domain Name")
The Complaint was submitted to and validated by Nominet on 9 January 2009. Between 9 and 13 January 2009 Nominet took steps to notify the Respondent of the Complaint by post and by email. The Respondent was informed in this correspondence that he had 15 working days, that is, until 2 February 2009 to file a response to the Complaint.
On 2 February 2009 the Respondent filed a Response. The Complainant did not file a Reply to the Response. The case proceeded to the mediation stage. On 19 February 2009 Nominet notified the parties that mediation had been unsuccessful and invited the Complainant to pay the fee for referral of the matter for an expert decision pursuant to paragraph 8 of Nominet's Dispute Resolution Service Procedure Version 3 ("the Procedure") and paragraph 7 of the corresponding Dispute Resolution Service Policy Version 3 ("the Policy"). On 20 February 2009, Andrew D S Lothian, the undersigned, ("the Expert") confirmed to Nominet that he was not aware of any reason why he could not act as an independent expert in this case. Nominet duly appointed the Expert with effect from 25 February 2009.
At an early stage in his consideration of the matter, the Expert identified from the WHOIS extracts provided by the Complainant that the Domain Name was either transferred, surrendered or deleted on at least one occasion following its initial registration on 13 March 2008. No details of any such transfers, surrenders or deletions were available from the Parties' submissions but the Expert was aware that these would be held by Nominet and that they might be material to the Parties' dispute. Accordingly, on 26 February 2009, the Expert requested Nominet to supply him with the full history of the Domain Name from and after 13 March 2008, namely the date or dates of registration, details of any transfers, surrenders or deletions and the identity and full contact details of the associated registrants. On the same date Nominet provided the Expert with the details regarding the registration, transfer and deletion of the Domain Name which are reproduced in the Factual Background section below.
Paragraph 13(a) of the Procedure provides as follows:-
In addition to the complaint, the response and if applicable the reply and any appeal, the Expert may request further statements or documents from the Parties. The Expert will not be obliged to consider any statements or documents from the Parties which he or she has not received according to the Policy or this Procedure or which he or she has not requested.
Paragraph 16(a) of the Procedure provides in part as follows:-
...Moreover, there may be occasions where the Expert is in possession of relevant information, which is not in the case papers and upon which he or she wishes to rely for the purposes of the Decision. In such circumstances the Expert will inform the Parties and invite them to make submissions.
The Expert proposed to rely upon the registration, deletion and transfer information provided by Nominet and accordingly issued a Request to the Parties on 27 February 2009 in terms of paragraphs 13(a) and 16(a) of the Procedure listing this information and inviting the Parties to make submissions, if they wished to do so, within four working days, that is, by 4 March 2009. The Complainant made a further submission by email on 27 February 2009 and the Respondent made a further submission by email on 4 March 2009. These are summarised in the Parties' Contentions section below.
Both of the Parties made reference to matters not directly relative to the registration, deletion and transfer information in their further submissions. The Expert had informed the parties in the Request that they were to confine any further submissions to the disclosure of that information and that submissions on extrinsic matters would not be considered. Accordingly, the Expert has not considered any additional information provided by the Parties which was not relevant to the Request, nor has the Expert summarised this in the Parties' contentions section below.
InfraVision BV is a Netherlands company founded in 1998. It is a reseller of software named Magic Service Desk/Service Desk Express together with relative support and implementation services. Magic Service Desk/Service Desk Express is used by organisations providing helpdesk services. InfraVision BV was initially a reseller for an organisation named Network Associates.
In February 2008 InfraVision BV approached Nigel Todd, then employed by a company named Ibertek Limited, with an offer of employment. Ibertek Limited is a direct competitor of InfraVision BV. Mr Todd was a director and share holder of Ibertek Limited. The offer of employment proposed that Mr Todd open and run a UK arm of the InfraVision organisation alongside InfraVision BV's existing Belgian, Dutch and German operations. On 14 February 2008 InfraVision Limited, a UK company, was incorporated for this purpose. It is the Complainant in the present case. Mr Todd accepted InfraVision BV's offer of employment on or before 18 February 2008.
On 18 February 2008 Mr Todd gave notice of termination of his employment to Ibertek Limited and resigned his relative directorship. Mr Todd's employment with Ibertek Limited ended on 31 March 2008.
According to the information provided by Nominet from the register database (the subject of the Request to the Parties noted in Procedural History above) the history of the Domain Name is as follows:-
Contact details:
Mapleton Road,
Four Elms
Kent
Eden Bridge
TN8 6PL
Contact: Richard Falconer - [email protected]
Contact details:
Four Elms
EdenBridge
TN8 6PL
Contact: Richard Falconer - [email protected]
Mr Richard Falconer is the Managing Director of Ibertek Limited. The Respondent is Mr Falconer's brother in law. The Respondent, Mr Todd, Mr Falconer and Mr Falconer's sister Debbie (the Respondent's wife) had all worked for the organisation named Network Associates prior to 2001.
During the period that the Domain Name was registered to Ibertek Limited, it was used to redirect Internet users to Ibertek Limited's website at www.ibertek.com. Since registering the Domain Name on 17 April 2008, the Respondent has used the associated website to advertise glamour, nude and boudoir photography services for a company named Infravision.co.uk Limited. The website features examples of nude photography. Infravision.co.uk Limited was incorporated at approximately the same time as the Respondent registered the Domain Name.
Complainant
InfraVision are well known throughout the small population of resellers in the community of Magic/Service Desk Express resellers.
Richard Falconer acquired the Domain Name after Mr Todd had handed in his notice to Ibertek Limited and before his last day of employment there.
The Complainant's parent company holds a variety of domain names including the .at, .de, .nl and .com variants. The country code domains allow for regional variations and act as the local country main site with the .com acting as a parent site.
After correspondence from Mr Todd requesting that the redirection cease, Mr Falconer replied that the change would take two weeks and following a further letter from Mr Todd, stating that this was unacceptable, the photography site was published as "under construction". Richard Falconer abused the Domain Name by pointing it to his own in a desire to infringe the rights of a competitor, and adversely affect InfraVision's business. His sole purpose of acquiring the domain was so that the Complainant could not use it.
Mr Todd attempted to purchase the domain, initially making price enquiries and then offering £500 in response to a "For Sale" sign on the web page. The enquiries were ignored or marked as undeliverable. The "for sale" offer on the site is spurious.
The associated site is a soft porn site with images of nude women. It is proving disadvantageous to the Complainant's business. The Complainant has received one complaint regarding the site from a prospect, the Maritime and Coastguards Agency. Other prospects may have seen the site and been put off by it.
Following transfer, Richard Falconer claimed he did not know the new registrant but this is untrue as it is his brother in law. The Domain Name is now retained by the Respondent to prevent the Complainant from using it and to further disadvantage the Complainant as a competitor of the Respondent's brother in law's company Ibertek Limited.
Complainant's Further Statement
In summary, the Complainant submits that the history of the registration of the Domain Name serves to confirm the Complainant's original submissions concerning Mr Falconer's registration of the Domain Name and its transfer to Mr Falconer's brother in law, the Respondent, notwithstanding the Respondent's claim that it is a coincidence that he purchased the Domain Name on the free market and chose the name as his company name.
Respondent
The Respondent states that the Domain Name Infravision.co.uk has never been for sale. The Respondent has invested in excess of £15,000 in web design, hosting and support, marketing and business supplies and also a great deal of time and effort into this project and has many satisfied clients.
The Respondent admits that Mr Falconer is his brother in law and that the Respondent, Mr Falconer, Mr Todd and the Respondent's wife all worked for Network Associates. The Respondent states that he and his wife left Network Associates in 2001 and since then have had no contact with Mr Todd and no knowledge of where he was employed. The Respondent also asserts that he has had no contact with Mr Falconer since 2001 and neither had the Respondent's wife "until very recently".
Given that the Domain Name was not for sale, Mr Todd's alleged reasonable attempt to purchase it is irrelevant. No evidence has been supplied to support the claimed offer to purchase. Mr Todd merely supplied an email undeliverable receipt. It seems extremely strange that Mr Todd did not attempt to contact the Respondent by other means to submit his offer as the Respondent's details are available from the WHOIS. It is ridiculous that the Complainant commenced the present DRS proceeding after supposedly making an offer to purchase the Domain Name rather than, for example, submitting the offer in writing.
The Domain Name was purchased online directly from Easynet's online domain checker after it was shown as available on 16 April 2008 [sic]. At this time, neither the Respondent nor his wife was aware of any connection to either Mr Todd, Mr Falconer, InfraVision Limited or Ibertek Limited. After registering the Domain Name the Respondent also incorporated a company named Infravision.co.uk Limited as the company name was available. There has been and was no actual or intended abuse of either Mr Todd or the Complainant and the Domain Name and limited company were registered without any malice or intended misrepresentation.
With regard to the Complainant's assertion regarding Maritime and Coastguards Agency's complaint about the Domain Name, the Complainant provides no detail of the complaint or any details of the complainant. The Respondent has been unable to trace anyone at Maritime and Coastguards Agency who is aware of any issue with the Domain Name.
Mr Todd and the Complainant have never owned the Domain Name; their corporate domain name is infravision.com and there is no prospect of confusion. The contact page on the web site at infravision.com confirms that InfraVision use infravision.com for The Netherlands, Belgium, Germany and the UK. This demonstrates that any clients or potential clients would use that domain name as it is used for these four countries.
The Respondent's company Infravision.co.uk Limited is a photographic business, and the website at the Domain Name is a photographic web site, not a soft porn site. Its use is not abusive, it does not infringe any trade marks, it does not advertise similar goods or services or attempt to pass itself off as the Complainant. Infravision is a patented product name of Stryker UK and this is in fact the most common reason for anyone searching the web for the name infravision. The screenshots provided by Mr Todd are out of date and therefore also irrelevant.
Respondent's Further Statement
In summary, the Respondent states that he telephoned his domain name registrar, Easyspace, to enquire about the availability of the Domain Name (among others). At that point it was not available. The Respondent states that he telephoned his registrar again at a later date to organise the registration of an alternative domain name and was then informed by the lady to whom he spoke (the same person as in the previous call) that the Domain Name was about to become available. The Respondent then continued to check the Domain Name's availability and, when it became available, he registered it.
General
In terms of paragraph 2(b) of the Policy the onus is on the Complainant to prove to the Expert on balance of probabilities each of the two elements set out in paragraph 2(a) of the Policy, namely that:
(i) The Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
(ii) The Domain Name, in the hands of the Respondent, is an Abusive Registration.
Complainant's Rights
Paragraph 1 of the Policy provides that Rights means "rights enforceable by the Complainant, whether under English law or otherwise, and may include rights in descriptive terms which have acquired a secondary meaning".
The requirement to demonstrate Rights under the Policy is not a particularly high threshold test. Rights may be established in a name or mark by way of a trade mark registered in an appropriate territory, or by a demonstration of unregistered so-called 'common law rights'. In order to demonstrate common law rights in a name or mark it is necessary for the Complainant to adduce evidence showing that it provides goods or services under that name or mark and that goodwill or reputation attaches to those goods or services, such that in the minds of the consumers of the goods and services there is an association between the name or mark and the Complainant.
In the present case, the Complainant's focus in the Rights section of the Complaint is on the history of its dispute with Ibertek Limited/Mr Falconer rather than on the detail of any Rights which it may possess in a suitable name or mark. No information is provided as to any registered trade marks owned by the Complainant (or, for that matter, the Complainant's parent company). Can anything be gleaned from the Complainant's submissions regarding its possible common law rights?
It is evident that the Complainant's parent company has been trading for over a decade and that the Complainant itself was incorporated on 14 February 2008. It is clear that the Complainant is the UK arm of a business with Dutch, German and Belgian operations. It is reasonable to infer that the Complainant itself has been trading actively since 1 April 2008, this being the date on which Mr Todd became free for employment by the Complainant.
In terms of paragraph 16(a) of the Procedure the Expert is entitled (but not obliged) to look at any website referred to in the Parties' submissions. The Complainant referred to websites at www.infravision.com, www.infravision.at, www.infravision.de and www.infravision.nl. The first of these is the Complainant's parent company's website which contains an extensive news section on the activities of the company and its subsidiaries. A press release on this site dated 1 April 2008 marking the opening of the parent company's UK office corroborates the inference already made by the Expert that the Complainant began trading on that date. The press release also provides the following commentary: "Based in Henley-on-Thames, InfraVision Ltd will attract new customers with the quality and experience of its professional Sales, Marketing, Solution Delivery and Support staff, as well as the unbeatable combination of the Alignability Process Model and BMC Service Desk Express...The UK office gives us the ability to even better support our multinational customers and our UK customers with a local presence." From this it can be reasonably inferred that the Complainant's parent company already had UK customers prior to the Complainant's existence which have since become the responsibility of the Complainant. An indication that the Complainant is engaging in marketing activity is also provided by the same website; a separate news story on the site states that the Complainant has taken a stand at the Service Desk Show at Earls Court in London from 28 April 2009 and will be providing software demonstrations and process health-checks during the show.
The contacts page on the Complainant's parent company's website confirms that there are four companies in the parent company's group of companies: InfraVision B.V., The Netherlands (the parent company); InfraVision B.V.B.A., Belgium; InfraVision GmbH, Germany and InfraVision Limited, United Kingdom (the Complainant). It thus appears to the Expert that on each occasion when the Complainant's parent company has extended its operations to another country it has also incorporated a local subsidiary to carry on its business there.
When all the information available to the Expert regarding the Complainant's Rights is considered it is evident that the Complainant barely meets the test for the establishment of common law rights in the name or mark InfraVision (using the Complainant's spelling). Indeed, in the Expert's view, the Complainant would not have met the test at all without the additional evidence arising from the Complainant's parent company's website. While the decision is extremely marginal, however, the Expert is prepared to find that, on the balance of probabilities, the Complainant does have Rights in the name InfraVision on the basis that the evidence demonstrates (1) the Complainant is part of a larger organisation (its parent company) which has a substantial trading history under this name; (2) the parent company has opened additional operations in Belgium, Germany and the UK (the latter being the Complainant) which evidently also operate under the InfraVision name as local trading subsidiaries and it is reasonable to infer that the parent company has made all of the trading goodwill which it has built up in its decade of trading available to each of the local subsidiaries including the Complainant; (3) prior to the opening of the UK office the parent company had UK-based customers (both multinational companies with a UK place of business and indigenous customers) and it is reasonable to infer that these have been passed on to the Complainant to manage in its capacity as the local trading subsidiary; and (4) the Complainant itself has been trading under the name InfraVision Limited since April 2008 and is engaged in marketing activities under that name such as the forthcoming trade show at Earls Court in London.
It follows from the assessment above that the Complainant has proved to the satisfaction of the Expert, on balance of probabilities, that it has Rights in a name which is identical to the Domain Name, there being no distinction between upper and lower case characters in a domain name and the first (.uk) and second (.co) levels of the Domain Name being disregarded for the purposes of comparison as is customary in disputes under the Policy.
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 has taken unfair advantage of or has been unfairly detrimental to the Complainant's Rights;"
This general definition is supplemented by paragraph 3 of the Policy which provides a non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration. Paragraph 4 of the Policy provides a similar non-exhaustive list of factors which may be evidence that the Domain Name is not an Abusive Registration.
In the present case, the Complainant asserts that the Domain Name was registered either primarily as a blocking registration against a name or mark in which the Complainant has Rights, effectively a submission in terms of paragraph 3(a)(i)(B) of the Policy, or primarily for the purpose of unfairly disrupting the business of the Complainant which may be treated as a submission in terms of paragraph 3(a)(i)(C) of the Policy. There is also an issue between the Parties concerning an offer of sale in respect of the Domain Name made via the associated website. This may be considered within the context of paragraph 3(a)(i)(A) of the Policy. Meanwhile, the Respondent asserts that the Domain Name was registered before he became aware of the Complainant's cause for complaint and is used in connection with a genuine offering of goods and services, effectively a submission in terms of paragraph 4(a)(i)(A) of the Policy.
The essence of the Complainant's position is that (1) the original registration of the Domain Name was made by Richard Falconer of Ibertek Limited during the period that Mr Todd was working out his notice; (2) this registration was made in the full knowledge of the Complainant's likely interest in the Domain Name and was calculated to deny the Complainant the use of the name and/or to cause unfair disruption to the Complainant's business (evidenced by the use of the Domain Name to forward traffic to Ibertek Limited's own website); (3) the Respondent is connected to Richard Falconer, namely he is his brother in law; and (4) the Respondent registered the Domain Name to continue the blocking/unfair disruption on his brother in law's behalf which is now exacerbated by the content of the associated website (characterised by the Complainant as 'soft porn').
The essence of the Respondent's position is (1) he registered the Domain Name for use with his glamour photography business; (2) the Domain Name was available on a search; (3) having secured the Domain Name, the Respondent proceeded with the incorporation of a similarly named limited company; and (4) throughout the process of registering the Domain Name and incorporating the company, the Respondent had no awareness of, as he puts it, "the connection to either Mr Todd, Mr Falconer, InfraVision Limited [the Complainant] or Ibertek Limited." The Respondent adds that he has invested in excess of £15,000 in web design, hosting and support, marketing and business supplies and a great deal of time and effort; he also claims that he has many satisfied clients for his business.
The fundamental question for the Expert here is whether the Domain Name was indeed registered independently of the original registration and without awareness of the Complainant's cause for complaint. In light of the Complainant's contention that the registration of the Domain Name was made for the purposes of continuing blocking or unfair disruption initiated by the original registrant, the Expert considered at the outset that the timing of the registration was likely to be significant in this case. In particular, the Expert considered that the proximity in time between the original registration or the deletion thereof and the Respondent's registration might shed some light on the matter.
Nominet's chronology shows that there were a number of operations upon the Domain Name on the day when it was ultimately registered by the Respondent, namely 17 April 2008. On that day, the Domain Name was first transferred from Ibertek Limited back to Falconer IS Services at 09.10, followed by a request to delete the Domain Name which was made by the registrar at 10.35, and the Domain Name was ultimately registered by the Respondent at 10.38. There is thus a high degree of proximity between the deletion and re-registration of the Domain Name which might raise a reasonable inference that these were connected activities. Accordingly, the Expert invited both parties to comment on the chronology.
The Complainant's comments on the chronology merely repeated the terms of its submissions in the Complaint and as such do not require further analysis by the Expert. The Respondent provided further submissions together with a Microsoft Word document appearing to be a log of emails between the Respondent and his web developer, only some of which related directly to the Nominet chronology. From this material it is evident that the Respondent's explanation for the chronology is that the proximity in time between the registrations, and/or between the deletion of the original registration and the registration by the Respondent, is wholly coincidental.
The Respondent explains that he had checked availability for the Domain Name some time previously by telephone to his registrar, Easyspace. The Respondent does not provide a date for this call but, considering the log of emails, the call must have been made at some point between 14 March 2008, when the Respondent's web developer suggests that the Respondent contact Easyspace, and 18 March 2008, when the Respondent reports back to his web developer the results of his availability check. These results (ie that the Domain Name was unavailable for registration by the Respondent) are indeed consistent with the fact that the Domain Name had already been registered to Falconer IS Services on 13 March 2008.
However, the Expert considers that it is somewhat more challenging to reconcile the Respondent's account with Nominet's chronology of the activities relating to the Domain Name on the morning of 17 April 2008. A transfer had been executed between Ibertek Limited and Falconer IS Services, one must assume with the prior authority of the then registrant, Ibertek Limited, at 09.10. The registrar's request to delete the Domain Name was made at 10.35, again, one must assume with the prior authority of the then registrant, Falconer IS Services. Both Ibertek Limited and Falconer IS Services appear to be controlled by Richard Falconer who is the named contact and whose email address is the email contact address in the register database for both entities. All registrants of the Domain Name, including the Respondent, used the same registrar, namely Easyspace.
The Respondent goes on to explain that he called Easyspace again to register an alternative domain name and spoke to the same person who had checked availability for him a month previously. This person advised the Respondent of the impending deletion of one of the other domain names he had enquired about previously (namely, the Domain Name). The Respondent explains that he continued to check availability for the Domain Name and was successful in registering it. The Respondent states that all of this was done by him without any awareness of his brother in law's prior involvement with the Domain Name.
It appears to the Expert that for the Respondent's account to be accurate, he must have telephoned Easyspace on the morning of 17 April 2008 in the exact period (a one hour and 25 minute interval) after the Domain Name had been transferred to Falconer IS Services and after the latter had requested Easyspace to delete the Domain Name. Prior to this point the registrar would not have been aware of the impending deletion. As the registrar which the Respondent selected is the same registrar used by the two previous registrants it is however possible that a salesperson might have known of the impending deletion once the instruction to delete had been received.
The Expert considers that the Respondent's account is overwhelmingly implausible and requires a very high degree of coincidence. It is extremely unlikely in the Expert's view that a registrar would (1) remember the precise details of a telephone request to check availability of a selection of domain names from a month prior; (2) be able to identify one of the domain names thus checked as the subject of a pending instruction to delete a month later; and (3) would then advise a customer of this on the telephone. Even if all of this were accepted by the Expert as entirely accurate, the Respondent's account also requires the Expert to believe that, coincidentally, the Respondent happened to telephone the registrar at precisely the right time to be given information of the impending deletion, namely in the window between the previous registrant's request to the registrar to delete the Domain Name and the registrar's actual deletion request to Nominet.
On the other hand, the Respondent's account also requires the Expert to believe that the very obvious coincidence (as particularly founded upon by the Complainant) between the Respondent's interest in the Domain Name, his past working relationship with Mr Todd and his family relationship with Mr Falconer (the brother of his wife) are of no significance whatsoever. If the Respondent's account is to be believed, it means that quite unknown to him, he and his brother in law were the only people conducting operations upon this particular Domain Name (via the same registrar) at approximately the same time on the morning of 17 April 2008.
The Expert has reached the conclusion that the submissions of the Complainant are to be preferred to those of the Respondent, namely that the re-registration of the Domain Name by the Respondent was not made independently of the original registration and that it was made primarily to block the Complainant from registering the Domain Name itself or was made with intent to cause unfair disruption to the Complainant. The Expert considers that the timing of the registration, the relationship between the Parties and the original registrant, and the operations performed on the Domain Name immediately prior to the registration are particularly significant. The Expert also considers that the coincidence required by the Respondent's submissions stretches credulity beyond breaking point.
Turning to the question of the offering for sale of the Domain Name, the Expert considers that this further strengthens the Expert's view that the Domain Name was not registered independently of the dispute between the Complainant and Ibertek Limited and in connection with the Respondent's glamour photography business. The screenshot of the website associated with the Domain Name produced by the Complainant and dated 22 October 2008 bears the text:
In his Response, the Respondent denies that the Domain Name was for sale. However, it is particularly significant to the Expert that the Respondent does not deny the accuracy of the Complainant's screenshot. Instead, the Respondent merely submits that all screenshots should be disregarded as they are "out of date".
In the Expert's mind it is extremely unlikely that the Respondent would offer for sale on the associated website a Domain Name which, on his account, he had selected as the ideal one for his new business (as part of a £15,000 investment in the development of the business's identity) and which he had gone to some considerable trouble to secure. It may be worth stating in passing that the Expert does not attach any particular significance to the alleged failed attempt by Mr Todd to make an actual offer to purchase the Domain Name via the hyperlink, which both of the Parties discuss at length in their submissions and on which they take up contrary positions. The Expert does not believe that it was necessarily the primary intent of the Respondent to sell the Domain Name to the Complainant or a competitor within the meaning of paragraph 3(a)(i)(A) of the Policy but rather that the screenshot has a negative impact upon the credibility of the Respondent's submissions regarding his reasons for registration.
It is worth adding that the Respondent has not provided any evidence to support his assertions that he has invested in excess of £15,000 in web design, hosting and support, marketing and business supplies; nor has he provided any further information regarding the clients of Infravision.co.uk Limited. Furthermore, the Expert did not identify anything which might have provided any such support on the website associated with the Domain Name.
On the subject of the alleged unfair disruption to the Complainant's business, it is necessary for the Expert to deal with the Parties' submissions regarding the content of the website itself. Clearly, one person's 'glamour photography' may be another person's 'soft porn', but the Expert considers that the Respondent's website content is perfectly consistent with that of a photographer who is offering glamour, nude and boudoir photography, however offensive this might appear to some. That said, whether the Respondent operates a genuine glamour photography business or not (and the Expert has no reason to believe that the Respondent does not operate such a business) it is likely that the content of the website (including an image of partial nudity on the homepage) would offend certain visitors who were expecting to find the Complainant's website at the Domain Name.
The Parties are diametrically opposed as to whether offence has already been taken by a potential customer of the Complainant (the Maritime and Coastguards Agency). However, the Expert does not believe that the Complainant requires to show that any person has already found the website to be offensive. If, as the Expert has found, the Respondent registered the Domain Name with the Complainant's Rights in mind, then it is reasonable to infer that the Respondent likewise could or should have been aware that the website content might cause offence to some of the Complainant's customers or potential customers and indeed it is also reasonable to infer that the Respondent's choice of content may have been influenced by this possibility.
It is not possible for the Expert to determine whether the primary intention of the Respondent at the point of registration was to register the Domain Name as a blocking registration against the Complainant's name or mark or whether the Respondent primarily intended to cause unfair disruption to the Complainant's business. However, the Expert considers that the circumstances indicate that one or other of these factors is the most probable motivation for the registration of the Domain Name by the Respondent.
Accordingly, in all of the above circumstances, the Expert finds on balance of probabilities that the Domain Name, in the hands of the Respondent, is an Abusive Registration.
The Expert finds that the Complainant has proved that it has Rights in a name or mark which is identical to the Domain Name and that the Domain Name, in the hands of the Respondent, is an Abusive Registration. The Expert therefore directs that the Domain Name be transferred to the Complainant.
Signed : Andrew Lothian Dated : 13 March 2009
