The Complainant is Meller Braggins Limited of Cheshire, United Kingdom of Great Britain and Northern Ireland (“UK”), represented by Pannone LLP, UK.
The Respondent is Identity Protect Limited of Surrey, UK / Julie Forrester of Cheshire, UK, self-represented. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Webfusion Ltd trading as 123-reg (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 4, 2014. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 5, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Complainant filed the first amended Complaint on February 14, 2014 and the second amended Complaint on February 21, 2014, in response to a notification by the Center that the Complaint was administratively deficient.
The Center verified that the second amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 25, 2014. The Center granted the Respondent’s four-day extension request, and the due date for Response was March 21, 2014. The Response was filed with the Center on March 21, 2014.
The Center appointed Ian Lowe as the sole panelist in this matter on March 31, 2014. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. 4. Factual Background
The Complainant is a leading firm of estate agents in the North West of England offering a range of property related professional services. Its business has been variously carried on since 1836, initially through firms including E. Meller & Sons and John Braggins & Co and then from 1976 under the name Meller Braggins & Co. The Complainant was incorporated on December 14, 2007. The Complainant and its predecessors (“Meller Braggins”) have operated a website at the Domain Name () since at least February 1, 2001.
The Domain Name was registered on March 10, 2000 by the web design company that initially built a website for Meller Braggins. The Respondent Julie Forrester is the Company Secretary of Complete Computer Services Limited (“CCS”), which from 2000 has provided web hosting and IT support services for Meller Braggins. On August 10, 2010, the Respondent arranged for the Domain Name to be transferred into the name of Meller Braggins. According to the historical WhoIs records produced by the Complainant, the Domain Name continued to be registered in the name of Meller Braggins until around January 17, 2013, when it was registered, apparently by the Respondent, in the name of 123-reg, a trading name of the Registrar.
On a date between March 8, 2013 and September 13, 2013, the Domain Name was registered by the Respondent in the name of Identity Protect Limited, with the Respondent Julie Forrester as the underlying registrant.
Since around August 19, 2013, a dispute has raged between the Complainant and CCS as to whether there has been a termination of the arrangements for the provision of IT services by CCS, whether any monies remain due from the Complainant to CCS for such services, and whether the Respondent/CCS is bound to accede to the Complainant’s request to transfer the Domain Name into the name of the Complainant. The Respondent has refused to do so whilst monies claimed to be payable to CCS by the Complainant remain unpaid. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is identical to the name MELLER BRAGGINS in which it has unregistered trademark rights by virtue of the Complainant and its predecessors having carried on business under that name for very many years, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. B. Respondent
The Respondent does not dispute that the Complainant has rights in the name MELLER BRAGGINS. The Respondent does not claim to have any rights or legitimate interests in respect of the Domain Name save that she reserves the right not to provide work for the Complainant, including transferring the Domain Name, whilst its account is overdue.
So far as registration of the Domain Name is concerned, the Respondent states that identity protection was put on the majority of the hosted domains of CCS (including the Domain Name) over a year ago. She comments: “I don’t think the [Complainant] understands spamming and the reasons for identity protection.” The Respondent denies that the Domain Name has been used in bad faith, pointing out that the Complainant’s website continues to operate at the Domain Name. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel is satisfied that as a result of the Complainant and its predecessors having carried on business under the name MELLER BRAGGINS for very many years, the Complainant has accrued unregistered trademark rights in that name. The Domain Name is identical to the name MELLER BRAGGINS, ignoring the “.com” suffix. Accordingly, the Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Respondent does not claim to have any rights or legitimate interests in respect of the Domain Name beyond an entitlement to refuse to transfer the Domain Name to the Complainant whilst a disputed sum of money remains payable to the Respondent’s company by the Complainant. The Respondent appears to accept that the Complainant is entitled to the Domain Name and certainly does not claim to have any rights in respect of the name Meller Braggins.
The Complaint and the Response devote considerable space and documents to a dispute in relation to the fees of CCS for hosting and support services. However, the Panel is in no doubt that this administrative procedure under the UDRP is no place to attempt to resolve questions of whether sufficient oral or written notice has been given by the Complainant to terminate those services, when such notice might take effect, or what the financial consequences might be.
The Panel is satisfied, however, that the fact that the Domain Name happens to be registered in the name of the Respondent Julie Forrester (albeit through the mechanism of a privacy service) and that there is a dispute between the Respondent’s company and the Complainant, could not possibly give rise to any rights or legitimate interests in the Domain Name on the part of the Respondent for the purposes of the Policy. Such rights or interests must, in the Panel’s view, be rights or interests in the name constituted by the Domain Name, justifying the use of the Domain Name (whether passive or active). There is no suggestion of such rights or interests here. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith
The Respondent Julie Forrester gives no explanation for her having used her administrative rights to transfer the Domain Name out of the name Meller Braggins (let alone into the name of 123-reg) on about January 17, 2013. She claims that the subsequent registration in the name of Identity Protect Limited (with her as the underlying registrant) was done as a standard exercise in 2013, apparently connected with some general concerns about spamming. In the view of the Panel it is this final registration that is relevant for the purposes of paragraph 4(a) of the Policy.
The Respondent does not produce any evidence that there was any consent (whether informed or otherwise) on the part of the Complainant for the transfer of the Domain Name out of the name of Meller Braggins in around January 2013 or into the name of Identity Protect Limited subsequently. The Panel does not understand how some fear of spamming could justify such a step. The typical reasons for a domain name to be registered behind a privacy service are either a legitimate concern to protect the privacy of an individual registrant or to conceal the name of a cybersquatting registrant.
There is no dispute that the Complainant is entitled to use the Domain Name. In the absence of any credible explanation for the registration in the name of the Respondent, and the absence of any evidence of informed consent on the part of the Complainant whose website is operated at the Domain Name, the Panel is satisfied that the Domain Name was registered by the Respondent in bad faith.
In the Panel’s view, the relevant use of the Domain Name by the Respondent has been the continued registration of the Domain Name in the name of the Respondent and the refusal of the Respondent to transfer the Domain Name to the Complainant, its rightful owner, effectively holding the Domain Name to ransom. The Panel considers that this amounts to bad faith use under the Policy, and the fact of the dispute between the Complainant and the Respondent’s company in relation to hosting and IT support fees does not legitimise such bad faith.
Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Ian Lowe
Sole Panelist
Date: April 12, 2014
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