1.1 The Complainant is KwikChex Ltd, United Kingdom, self-represented.
1.2 The Respondent is ECC ECC, ECC, Spain / European Consumer Claims Ltd., United Kingdom, self-represented. 2. The Domain Name and Registrar
2.1 The disputed domain name 3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 30, 2020. In that Complaint the Respondent was identified as “European Consumer Claims Limited”. On June 2, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 3, 2020, the Registrar transmitted by email to the Center its verification response. That verification response identified the registrant as “ECC ECC” and provided contact details that took the form a post office box number, a post code commencing with the letters “PMG”, a reference to Marbella, Spain and a Spanish telephone number. 3.2 On June 8, 2020 the Center sent a Complaint Deficiency Notification to the Complainant in respect of the difference between the respondent identified in the Complaint and the information provided by the Registrar. Later that day, the Complainant responded to that notification and contended in an email that the information provided by the Registrar was false. In this respect it claimed that the post code given was not a Spanish code, that the post office box and post code had previously been used by an entity using the name “International Timeshare Refund Action”, and that an English company with that name and using the same post office box number had been wound up in January 2019. Reference was also made to other material that was said to demonstrate that the Respondent was European Consumer Claims Limited. 3.3 The Center accepted this communication from the Complainant as an amendment to the Complaint and concluded that the 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”). 3.4 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 15, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 5, 2020. 3.5 On June 30, 2020, the Center received an email signed by European Consumer Claims Ltd, but not identifying any individual at that company. In the email European Consumer Claims Ltd asserted that it was “not the domain-name holder” and asserting that it should not be the Respondent in these proceedings. It followed this up with a further email on July 2, 2020, repeating this claim and suggesting that the proceedings be discontinued. However, it also requested an extension of time to prepare its Response under paragraph 5(b) of the Rules, if the Center allowed these proceedings to continue. 3.6 As a consequence, the Center informed European Consumer Claims Ltd that the issue of the identity of the Respondent would be dealt with by the Panel. In accordance with the Rules, paragraph 5(b), the Respondent was also granted an automatic four calendar day extension for the Response, and the due date for the Response was updated to July 9, 2020. On July 3, 2020, the Complainant sent a further email to the Center addressing the identity of the Respondent. 3.7 On July 9, 2020, European Consumer Claims Ltd sent an email to the Center responding to the allegations made in the Complaint. The Complainant sent a further email to the Center in respect of these contentions later that same day. The admissibility of these emails is addressed in greater detail later on in this decision. 3.8 The Center appointed Matthew S. Harris as the sole panelist in this matter on August 3, 2020. 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 the Rules, paragraph 7. 3.9 On August 5, 2020 the Panel issue a Procedural Order (“Procedural Order No. 1”) in which it stated that it had formed the preliminary view that the Complainant had sufficiently demonstrated unregistered trade mark rights for the purposes of the Policy. However, since no case of unregistered trade mark rights had been expressly advanced by the Complainant, and for reasons of procedural fairness, it permitted the Respondent to file a supplemental submission limited to this issue by no later than August 12, 2020. European Consumer Claims Ltd, filed a further submission in this respect on August 7, 2020. 4. Factual Background 4.1 The Complainant is a company incorporated in England in 2010. It has since incorporation operated a website from the Domain Name 4.2 Part of its activities appears to have involved made a number of complaints to the UK Advertising Standards Authority (the “ASA”) in 2015 and 2016. These included a complaint made to the ASA against European Claims Center LLC regarding alleged misleading claims made on the website operating under the name “Timeshare Advice Centre”. Those complaints were upheld by the ASA. 4.3 The Domain Name was registered on February 13, 2020. Since registration, the Domain Name has been used to display a website that hosts content that is highly critical of the Complainant and its director. It is not necessary to set out what these criticism are in any detail but in essence it is contended that the Complainant has links to the Resort Development Organisation and that the Complainant has no interest in assisting timeshare owners who have claims against members of that organisation. It is important to record that the Panel cannot and does not express any view on the validity or otherwise of these criticisms. 4.4 This website continues to operate as at the date of this decision. As well as complaints about the Complainant, there is a page on the website promoting the activities of European Consumer Claims Limited. These activities are said to include the referral of timeshare related claims to English and Spanish lawyers. 5. Parties’ Contentions A. Complainant 5.1 In its Complaint the Complainant contends that it has been using the trading name “KwikChex” since 2010 and provides “verification and resolutions services, with the principal aim being support for consumer protection and law enforcement”. It refers to the fact that is has been mentioned in various news articles. It also claims that “online searches for ‘KwikChex’ demonstrate the clear proprietorial value and recognition of the name by KwikChex Ltd” but does not really explain further how this is the case. It further claims that by registering a domain name that is the same as the Complainant’s save for a different suffix, the registrant of the Domain Name is specifically intended to confuse consumers searching for the services of the Complainant. 5.2 The Complainant further contends that the Respondent has no rights to use the “Kwikchex” name and claims the intention of the Respondent is to do harm to the Complainant’s and to promote the business of the Respondent. Reference is also made to an article on the website of the British newspaper “the Mirror”, which was critical of International Timeshare Refund Action, a company said to be associated with the Respondent (and already referred to the Procedural History Section of this decision). In that article, the Complainant is also mentioned and the founder of the Complainant is quoted. 5.3 The Complainant also sent the Center an email seeking to addressing contentions of European Consumer Claims Ltd in its email of July 9, 2020. The Panel did not call for this submission and has formed the view that is not necessary to consider the same in coming to its decision in this case. B. Respondent 5.4 European Consumer Claims Ltd sent an email to the Center responding to the Complaint. As a Response it was not procedurally compliant in that, inter alia, it did not contain the statement of truth required by paragraph 5(c)(viii) of the Rules. Nevertheless, the Panel has decided to consider the contentions to be found in that email in coming to its decision in this case. 5.5 In that email European Consumer Claims Ltd repeats its earlier contention that it is not the “domain name holder” and that the proceedings should have been discontinued. In this respect it relies upon section 3(b)(v) of the Rules. However, since this has not happened, it proceeds to respond to the Complaint “as a gesture of collaboration”. 5.6 European Consumer Claims Ltd asserts that “Kwikchex is not a trademark or a service mark and [its] checks show that it has not been registered as such in the UK”. However, it does independently assert that Kwikchex is the trading name of the Complainant. The rest of the email contains a repetition of criticisms of the Complainant (and in particular its alleged links to the Resort Development Organisation), that are to be found on the website operating from the Domain Name. It also contends that it is the Complainant that has the intention of doing harm to European Consumer Claims Ltd, rather than the other way around, and complains about the characterisation of European Consumer Claims Ltd on the Complainant’s own website. In this respect, it claims that complaints have been filed with the UK ASA and that it has “initiated legal actions for defamation (currently at a pre-action protocol stage)” against the Complainant. 5.7 In a further submission filed on August 7, 2010 pursuant to Procedural Order No. 1, the Complainant refers to what it contends to be the requirements for a passing off claim in English law. It asserts that these requirements are not made out in this case since it is said that there has been no misrepresentation, the Complainant and European Consumer Claims Ltd are not competitors and the Complainant has suffered no damage. It also sought to advance further submissions in response to the Complainant’s email of July 9, 2020. The Panel did not call for any submission in response to this email and (as with the July 9, 2020 email itself) has formed the view that is not necessary to consider the same in coming to its decision in this case. 6. Discussion and Findings 6.1 The Complainant must make out its case in all respects as set out in paragraph 4(a) of the Policy. Namely, the Complainant must prove that: (i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and (iii) the Domain Name has been registered and is being used in bad faith (paragraph 4(a)(iii)). 6.2 The Panel will address each of these requirements in turn. However, before it does so it is necessary to address European Consumer Claims Ltd’s contentions as to the identity of the Respondent. A. Identity of the Respondent 6.3 European Consumer Claims Ltd has contended that the proceedings should be discontinued because it is not the “domain name” holder in this case. What European Consumer Claims Ltd actually means in this respect is not really explained, but it would appear that the contention is that “ECC”, and not European Consumer Claims Ltd, should be listed as the Respondent in this case as “ECC” has been disclosed as the registrant for the Domain Name by the Registrar. 6.4 The significance or otherwise of naming the right formal respondent in UDRP proceedings was addressed at some length by this Panel in RapidShare AG, Christian Schmid v. PrivacyAnywhere Software, LLC, Mikhail Berdnikov (Protected Domain Services Customer ID: DSR-2262893, Protected Domain Services Customer ID: DSR-2092987) and RapidShare AG, Christian Schmid v. Winsoul, Inc., Aleksey Atushev; (Protected Domain Services Customer ID: DSR-2239262),WIPO Case No. D2010-0894. In short, the Panel concluded in that case that at so far as proceeding to a decision was concerned, it did not really matter who was named as the formal “Respondent”, since the questions to be assessed under the Policy could and usually should be addressed by reference to the question who actually controlled the domain name. 6.5 Further, although a panel may do otherwise if it considers it appropriate, usually the registrant details provided by the relevant registrar will be included in the heading of any decision. If there is a procedural requirement that the “right respondent” be formally named in proceedings, this is sufficient for this purpose. 6.6 Further, in the present case the Panel is more than satisfied that European Consumer Claims Ltd or at least some person closely connected with European Consumer Claims Ltd, actually controls the Domain Name. In this respect: (i) No one has suggested that there is a separate legal entity named “ECC” that controls the Domain Name; (ii) ECC is obviously the initials of European Consumer Claims Ltd and ECC is extensively used as an abbreviation for European Consumer Claims Ltd on the website operating from the Domain Name; (iii) The website operating from the Domain Name seeks in large part to promote the activities of ECC; (iv) European Consumer Claims Ltd’s interest in the Domain Name is evident from the way in which it has sought to participate in these proceedings and to resist the transfer of the Domain Name to the Complainant. (v) Its further submission dated August 7, 2020 ended with a statement of truth which was signed by an individual identifying himself as “director of the Respondent”. 6.7 Accordingly, the Panel rejects European Consumer Claims Ltd’s contention that the proceedings should be discontinued. European Consumer Claims Ltd and the Respondent are most likely the same entity or even if they are not, are so closely related that they can be treated as the same person. References to the Respondent in the rest of this decision should be understood accordingly. B. Identical or Confusingly Similar 6.8 The Respondent disputes that the Complainant has unregistered trade mark rights under the law of passing off because it contends that a claim against it under the law of passing off would fail. However, the Policy does not require a complainant to show that a respondent’s activities infringe its trade mark rights, merely that relevant rights exist. 6.9 In the case where registered trade mark rights are concerned, demonstrating this is relativity straightforward and whether such a right exists can usually be verified by merely checking the relevant register. Under the law of passing off, the concept of a distinct self-contained right is less meaningful, particularly where the alleged “mark” is highly descriptive. Nevertheless, it has been long recognised that rights under the English law of passing off can be treated as “unregistered trade mark rights” for the purposes of the Policy (see, for example, Imperial College v. Christophe Dessimoz,WIPO Case No. D2004-0322) and even where the mark is descriptive this rarely causes difficulty so far as the first requirement of the Policy is considered, as this is usually considered to impose a threshold or standing requirement. 6.10 In the present case, the Complainant appears to have an ongoing business, albeit it a relatively small one. There is also evidence before the Panel that it has achieved publicity in the UK national press relatively recently. The Respondent does not dispute this. Further, “Kwikchex” is clearly a coined term. 6.11 Given this, the Panel is satisfied that the Complainant has rights under the English law of passing off in respect of the “Kwikchex” name and, therefore, unregistered trade mark rights in this term for the purposes of the Policy. Further, the Domain Name comprises that term in its entirety combined with the “.net” generic Top-Level Domain (“gTLD”). It follows that the Domain Name is at least confusingly similar to a trade mark in which the Complainant has rights, and the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests 6.12 The Complainant and the Respondent are engaged in what appears to be a very long running dispute with one another as to the conduct of their respective business, both of which involve the provision of services in respect of complaints and claims in the field of holiday timeshare sales. Much of the parties’ respective submissions involved a repetition of those complaints and claims. The Panel has no need to make any ruling or come to any finding in respect of these competing contentions, which have very little relevance to the issues that it needs to determine in this case. 6.13 However, what does appear to be clear is that the Respondent has deliberately chosen a domain name that, save for a different gTLD, is the same as that used for the Complainant’s website, with the view to operating a website from which it can further publicise its complaints and criticisms of the Complainant. 6.14 Use of a domain name for fair use such as non-commercial free speech, can in principle support a respondent’s claim to a legitimate interest under the Policy. But as is recorded in paragraph 2.6.2 of the WIPO Overview WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”): “Panels find that even a general right to legitimate criticism does not necessarily extend to registering or using a domain name identical to a trademark (i.e., 6.15 This is a case where the Domain Name takes the form of 6.16 It follows that the Respondent does not have a right or legitimate interest in the Domain Name for the purposes of the Policy and that the Complainant has also made out the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith 6.17 The registration and use of a domain name to impersonate a trade mark holder so as to draw Internet users to a website, involves registration and use in bad faith for the purposes of the Policy. This is so even if once the Internet user reaches the website it is clear that it is not operated by the rights holder. In this respect see, for example, the analysis in 1066 Housing Association Ltd. v. Mr. D. Morgan,WIPO Case No. D2007-1461. This is so where the website is hosting noncommercial criticism and is even more clearly activity that is bad faith where the website is also being used to promote another business. 6.18 The Panel also accepts that the Complainant’s contention that the address given as part of the contact details for the Domain Name are incomplete, misleading and possible false. This is also a factor that supports a finding of bad faith registration and use. 6.19 It follows that the Complainant has made out the requirements of paragraph 4(a)(iii) of the Policy. 7. Decision 7.1 For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, Matthew S. Harris
Sole Panelist
Date: August 13, 2020
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