 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Nominet UK Dispute Resolution Service |
||
|
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Camelot Group plc v Dixon & Anor [2005] DRS 02530 (04 August 2005) URL: http://www.bailii.org/uk/cases/DRS/2005/02530.html Cite as: [2005] DRS 02530, [2005] DRS 2530 |
||
[New search] [Printable RTF version] [Help]
Camelot Group plc v Dixon & Anor [2005] DRS 02530 (04 August 2005)
Nominet UK Dispute Resolution Service
DRS 02530 (merged with case DRS 02529)
Camelot Group plc v. (1) Steve Dixon & (2) Natalie Sozou
Decision of Independent Expert
Complainant: Camelot Group plc
Country: GB
Represented by: Wragge & Co. LLP, Solicitors
Respondent (1): Steve Dixon
Country: GB
Respondent (2): Natalie Sozou
Country: GB
(1) camalot.co.uk
(2) camalot.org.uk
("the Domain Names")
Separate complaints in respect of each Domain Name were received by Nominet on 7 April, 2005. Nominet validated the complaints and informed the respective Respondents, by letters of 12 April, 2005, noting that the Dispute Resolution Service had been invoked and that the Respondent in each case had 15 days (until 5 May, 2005 – subsequently extended to 6 May, 2005 when the two cases were merged) to submit a Response. A non-standard Response to both complaints was received on 6 May, 2005 and Respondents agreed to have the two cases merged. Nominet informed the Complainant accordingly on 6 May, 2005, and noted that the Complainant could submit a single Reply by 17 May, 2005. No Reply was received.
On 19 May, 2005, Nominet invited the parties to resolve the dispute through Nominet's Informal Mediation service. Unfortunately, it was not possible to achieve a resolution by Informal Mediation and on 14 June, 2005, Nominet invited the Complainant to pay the fee to obtain an Expert Decision pursuant to Paragraph 7 of the Nominet UK Dispute Resolution Service Policy ("the Policy"). The fee was duly received from the Complainant on 21 June, 2005.
On 5 July, 2005, Nominet invited the undersigned, Keith Gymer ("the Expert"), to provide a decision on this case and, following confirmation to Nominet that the Expert knew of no reason why he could not properly accept the invitation to act in this case and 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, Nominet duly appointed the undersigned as Expert on 6 July, 2005.
Subsequently, following initial consideration of the submissions in this case, the Expert raised a preliminary concern, as noted in more detail below, and under paragraph 13a of the Policy requested Nominet to invite the parties to make further submissions on the point of concern by 28 July, 2005. A further submission was received from the Complainant with additional correspondence and documents annexed on 26 July, 2005. No further submissions were received from the Respondents. The deadline for the Expert to deliver a Decision was extended under paragraph 12a of the Policy to 4 August, 2005.
On initial review of the parties' submissions in these proceedings, in particular the Complainant's evidence, it was the Expert's preliminary view that there was a significant concern regarding the applicability of the Policy and the validity of its use by the Complainant in these cases.
This question arose because of the acknowledged existence of a Settlement Agreement between the Complainant and the first Respondent, specifically directed at resolving the original dispute relating to registration of the Domain Name camalot.co.uk.
That Settlement Agreement was dated 11 January, 2005 and included the explicit recitation that the Respondent had evidently agreed to give various undertakings to the Complainant "in consideration of [the Complainant] agreeing not to commence proceedings … or to file a complaint against [the Respondent] under Nominet's Dispute Resolution Policy …".
Additionally, the Agreement included a mutual covenant to the effect that "Save to the extent of their respective rights, obligations and liabilities arising under this Agreement, the parties accept the terms of this Agreement in full and final settlement of the Dispute [as defined] and the parties irrevocably release each other and covenant not to sue the other in relation to the Dispute or the Claim [as defined]".
In this case the "Dispute" related, inter alia, to registration and use of the Domain Name camalot.co.uk. The "Claim" related similarly to the parties claims and counterclaims raised in their correspondence relating to the Dispute.
The Agreement did not include any specific provisions for termination nor for other remedial actions by either party in the event of alleged breaches of its terms by the other.
The Complainant itself has made great play of the Respondent's alleged breaches of this Settlement Agreement, asserting that these should be considered as "bad faith dealings" with the Domain Name [camalot.co.uk] for the purposes of the Policy. Elsewhere, the Complainant also refers to the Agreement as "a binding Agreement".
The Complainant has also strongly alleged that the registration of the second Domain Name, camalot.org.uk also amounts to a breach of the Agreement by the first Respondent, notwithstanding that this Domain Name was registered before the Settlement Agreement was executed and in the name of the second Respondent, who was not a party to that Agreement.
Evidently, however, the Complainant is also happy not to consider the Agreement as "binding" on it and believes that its own apparent breaches of the same Agreement should be disregarded.
In the Expert's view, if the parties have concluded a Settlement Agreement to compromise the original dispute regarding the alleged abusive registration of a Domain Name, then the presumption must be that the Agreement is to apply in lieu of other means of dispute resolution, including resort to the Policy. That must be particularly so, in cases such as this, where the parties have purported to expressly exclude subsequent resort to the Policy.
Logically, if a party then fails to honour its obligations under the terms of the Settlement Agreement, the other should seek a remedy for the breach of contract in the conventional way. Essentially, the dispute is then no longer about the alleged abusive registration of the Domain Name, but about breach of the terms of the private contract between the parties.
As the Expert indicated when inviting the parties to submit their responses to his preliminary view, disputes about alleged breaches of a private Settlement Agreement between the parties are properly a matter for resolution by the Court and not by Nominet or the Expert. For a party to such an Agreement to then seek to avoid resolution under the Agreement would appear to be an act of bad faith.
This was surely all the more so in the present case, given the Complainant's explicit promise to the first Respondent in the Settlement Agreement not to resort to the Policy – a promise which, from the way it is presented in the Agreement might arguably be seen as a consideration given in advance to obtain the Respondent's agreement to give his undertakings, rather than as a consequence to follow the performance by the Respondent in accordance with those undertakings.
In such circumstances, the Expert believes it could not be appropriate for Nominet or the Expert to assist one party in actions, which appear to actively subvert the Settlement Agreement without the consent of the other party.
Consequently, the Expert invited both parties to confirm that they wished the Dispute to be resolved under the Policy and that they would effectively waive application of the Settlement Agreement to the Domain Names at issue, otherwise the Expert would not expect to proceed to decide the case (in relation to the issue of whether or not the Domain Names were Abusive Registrations).
The Complainant provided submissions in reply, together with copies of correspondence sent to the first Respondent on 22 July, 2005, asserting that the Complainant considered the first Respondent's alleged breaches of the Settlement Agreement as repudiatory and accepting the Agreement as having been terminated as a consequence. The Respondents did not make any submissions in reply to the Expert's invitation, nor did they give notice of any objection to the Complainant's latest correspondence regarding the termination of the Settlement Agreement.
A number of the Complainant's submissions merit specific comment. Extracts from the Complainant's submissions are italicised, with the Expert's comments below.
"… the Complainant does not believe the Settlement Agreement is still in effect, nor is the Settlement Agreement as a matter of fact, still in effect. The Respondent has repudiated the contract by (a) failing to transfer the domain name camalot.co.uk to the Complainant (b) failing to complete and sign the Transfer of Domain Name registration form in respect of this domain and (c) by subsequently registering the domain name camalot.org.uk."
"Faced with this repudiatory breach, it is clear from subsequent events that the Complainant has elected to bring the contract to an end by accepting the repudiation. The Complainant has treated itself as discharged from its liability to perform its own unperformed obligations under the contract (namely to pay the Respondent £100). The filing of this Complaint and the refusal to pay the Respondent £100 under clause 4 [of the Agreement] are unequivocal overt acts that are wholly inconsistent with the subsistence of the Settlement Agreement. Furthermore, the Complainant has, for the avoidance of doubt, notified the Respondent by letter and email dated 22 July 2005 that the Complainant has accepted the Respondent's repudiation of the agreement."
The Complainant's assertion at (c) is not accurate, since the evidence actually shows that the Domain Name camalot.org.uk was registered before the Settlement Agreement was signed by the first Respondent and was registered in the name of the second Respondent who was not a party to the Agreement.
The Complainant may allege that the Respondent has committed repudiatory breaches of the Agreement, but it was by no means clear to the Expert that these alleged repudiatory breaches had been accepted as terminating the Agreement. On the evidence, the Respondent had at least partially performed his obligations under the Agreement. The Complainant's letter of 22 July, 2005 does now clearly assert the Complainant's position regarding the state of the Agreement, but one party's assertions are not necessarily determinative. The other side would be entitled to argue that such termination was wrongful (see e.g. the recent case of Peregrine Systems Limited v. Steria Limited in the Court of Appeal).
As the Complainant properly admits, the filing of its Complaint (at least against camalot.co.uk) is certainly "inconsistent with the subsistence of the Settlement Agreement." Thus, the Respondent might well have a counterclaim that it is the Complainant whose actions have actually repudiated the Agreement.
If the Respondent were minded to dispute the Complainant's termination of the Settlement Agreement, it is surely evident that this issue would have to be resolved by the Court and it could not be appropriate for the Expert to decide on such a private contractual dispute under the Policy.
The Complainant nonetheless asserts:
"… the Expert is not entitled under the DRS Policy to not decide this case on the grounds stated. The only basis for not deciding the case is if the Expert concludes that the dispute "...is not within paragraph 2 of the Policy." Paragraph 2 provides that a Respondent must submit to proceedings under the DRS if a Complainant asserts to Nominet, according to the Procedure, that (a) the Complainant has rights in respect of a name or mark which is identical or similar to the Domain Name and (b) the Domain Name, in the hands of the Respondent, is an Abusive Registration. In the Complainant's submission, there is nothing in its Complaint which is either procedurally or substantively non-compliant, or which falls outside the scope of paragraph 2. "
Under Paragraph 16 d. of the DRS Procedure, it is stated, inter alia, that:
d. If, after considering the submissions, the Expert finds that the Complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking, the Expert shall state this finding in the Decision.
Under Paragraph 19 of the DRS Procedure, it is additionally stated that:
a. If, before a Decision is made the Parties agree and notify us of a settlement which we approve, whether or not pursuant to Informal Mediation, we will terminate proceedings under the Dispute Resolution Service.
b. If, before a Decision is made, it becomes unnecessary or impossible to continue proceedings under the Dispute Resolution Service for any reason, we will terminate proceedings under the Dispute Resolution Service unless a Party raises justifiable grounds for objection within a period of time which we will determine.
Thus, in the Expert's opinion, it is entirely open to the Expert to reject the Complaint, either on the basis of bad faith (following the reasoning explained above, and noting that the example in paragraph 16 d is not limiting), or to dismiss the Complaint on the basis that there is a Settlement Agreement in existence dealing with the Domain Names at issue.
The Complainant also went on to make a number of arguments in support of its contention that the rights it purports to have acquired and to retain under contract by virtue of the Settlement Agreement (despite its termination) should be considered by the Expert. The Expert finds these arguments misleading and unconvincing.
The issue of whether or not "Rights" under the Policy includes rights allegedly acquired under a terminated contract is irrelevant. The Complainant's ownership of "Rights" in CAMELOT is not affected by the Settlement Agreement and is not a problem.
The Complainant's assertion that there has been a "total failure of performance" by the Respondent in relation to the Settlement Agreement is also not supported by the evidence.
In such circumstances, the relevance of a terminated contract, which the Complainant admits not to have honoured itself, to any claim of "Rights" or as evidence of "Abusive Registration" is surely moot at best.
The Complainant has also sought to pray in aid the example of Paragraph 3 a v of the Policy which states that where (a) the domain name was registered as a result of a relationship between the Complainant and the Respondent and (b) the Complainant has been using the domain name exclusively, and has paid for the registration and/or renewal of the domain name registration, this may be evidence of Abusive Registration.
On the facts, Paragraph 3 a v does not apply to the present case. The Expert considers this example to be strictly limited in its application, and has previously commented on the unsatisfactory consequences of the way in which this particular example has been grafted into the Policy (see DRS 02242 BAe Systems plc v. Natasha Sime).
The Complainant also notes that "… the Registrant of camalot.org.uk is not even a party to the settlement agreement. In the premises, none of the Expert's stated grounds provide any support for his refusal to consider whether camalot.org.uk is an Abusive Registration."
The Expert has certainly considered this point and whether to take a decision only in relation to camalot.org.uk. However, the Expert considers that the Complainant's argument is rather disingenuous and is undermined by the fact that it has also claimed that the registration of this Domain Name was a breach of the Settlement Agreement and argued that the first Respondent was responsible for it. The Respondents have also accepted joint responsibility in agreeing to the merger of the two originally separate Complaints. Consequently, the Expert concluded that both camalot.co.uk and camalot.org.uk should be dealt with in the same way.
The Complainant concluded its submissions with the suggestion that if the Expert's view is correct "… any Respondent that is in dispute can seek to avoid proceedings under the DRS by compromising the dispute under the terms of a settlement agreement and by thereafter refusing to transfer the disputed domain in accordance with the terms of settlement. This would be to thwart the intention and purposes of the DRS."
The Complainant's analysis is flawed. If a dispute is compromised under the terms of a settlement agreement, then prima facie the settlement must pre-empt the application of the DRS. A refusal "to transfer the disputed domain in accordance with the terms of settlement" would then thwart the intention and purposes of the Settlement Agreement, not the DRS.
If the parties come to a private agreement for settlement of a dispute then they must expect to have to deal with alleged breaches in accordance with that agreement. This does not necessarily exclude resort to the DRS – the parties could clearly provide in such an agreement that a remedy for failure to make a timely transfer may include resort to the DRS. In the present case, however, the Complainant's difficulty is that its Settlement Agreement made no such provision, and indeed appears to have expressly excluded that option.
For that reason and as otherwise explained above, had the Respondent(s) made any objection to the Complainant's actions in bringing the original Complaints or expressly challenged the Complainant's termination of the Settlement Agreement, the Expert would have had no hesitation whatever in terminating consideration of this Complaint on the grounds that the parties had established a Settlement Agreement to deal with the Dispute between them and issues of performance or non-performance were a matter to be resolved by the Court and not the DRS. In the alternative, the Expert believes the Complaint could reasonably have been dismissed for bad faith as also outlined above.
Ultimately, however, in the absence of express challenge by the Respondents to the Complainant's termination of the Settlement Agreement and having regard to the Respondents' explicit agreement to have both disputes [to camalot.co.uk and camalot.org.uk] settled [under the DRS] at the same time, the Expert has been prepared to proceed with taking a Decision on the merits, but treating the Settlement Agreement as no longer of any effect for this purpose.
According to Nominet's Register entry for the Domain Names, each was first registered as follows:
(1) camalot.co.uk on 12 February, 2004, in the name of the first Respondent.
(2) camalot.org.uk on 24 November, 2004, in the name of the second Respondent.
The Complainant, Camelot Group plc was incorporated on 27 May, 1993 and is the company responsible for the operation of the UK National Lottery from 1994 to the present.
The Complainant has registered CAMELOT as a trade mark in the UK and European Community. Specifically, the Complainant provided acceptable evidence in the form of copies of the Registration Certificates for:
UK2179346 CAMELOT in Classes 9, 35, 38 and 42 dating from 12.10.1998
UK2119785 CAMELOT in Classes 28 and 41 dating from 03.01.1997.
Complainant:
The Complainant has asserted that:
1. The Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Names (Policy Paragraph 2a(i)); and
2. The Domain Names, in the hands of the Respondent, are Abusive Registrations (Policy Paragraph 2a(ii)).
In support of these assertions, the Complaint included the following submissions (substantially the same for both original Complaints):
The Complainant is the registered proprietor of a number of UK and Community trade marks which comprise the word CAMELOT that are registered for a variety of goods and services. All of these registrations pre-date the registration of the Domain Name[s].
The Complainant has registered various domain names [incorporating "camelot" and listed in a schedule to each Complaint].
The Complainant was incorporated in 1993 and is a private company wholly owned by Cadbury Schweppes, Royal Mail Enterprises, De La Rue, Fujitsu Services and Thales Electronics. The Complainant was awarded a seven year licence to operate the The National Lottery in 1994. In December 2000 the Complainant was awarded a further seven year licence to run the lottery, which commenced on 27 January 2002. As operator of The National Lottery the Complainant is responsible for raising funds, which are then allocated to each of the Six Good Causes approved by Parliament, which then select and distribute the funds to 16 distribution bodies. The Complainant raises the funds through its National Lottery games, which include a range of draw based games and scratch cards as well as interactive Instant Win Games available to play on the Internet. Over the seven years of the first licence the Complainant raised £10.6 billion for the Six Good Causes. The Complainant has around 33,000 retailers across the UK, of which approximately 25,000 operate on-line terminals.
The Complainant has established substantial goodwill in the CAMELOT name through its operation of The National Lottery.
The Complainant's UK and Community trade mark registrations are enforceable legal rights falling within the definition of "Rights" under the DRS Policy, which pre-date the date of registration of the Domain Name[s].
It is well established that the first and second level suffixes in a domain name should be ignored for the purposes of assessing whether it is identical or similar to the Complainant's trade mark.
Accordingly, as the only difference between the Domain Name[s] and the Complainant's registered trade marks is the 'a' in 'camalot' the Domain Name[s] should be regarded as very similar to the Complainant's registered trade marks for CAMELOT and its common law rights in this mark. Switching the 'e' to an 'a' forms a misspelling of CAMELOT. This amounts to "typo-squatting" whereby the Respondent [in each case] has adopted the Domain Name, which is a variation on CAMELOT, with the expectation that the typographical mistake will result in diverting traffic away from the Complainant's site to the Respondent's site[s].
The Complainant became aware of the domain name, camalot.co.uk of which a Mr Steve Dixon is registrant in October 2004. The domain name resolved to Mr Dixon's website which advertised various third party promotions, including free tickets to Alton Towers, using the banner "UK Lottery …Free Alton Towers? – You don't need to buy a ticket.... entry is FREE!". An investigation of Mr Dixon's website carried out by Carratu International plc revealed that the homepage of Mr Dixon's website utilised framing to provide a connection between his website and The National Lottery website at www.national-lottery.co.uk, such that The National Lottery website appeared within Mr Dixon's website under his advertising banner.
The Complainant, as operator of The National Lottery, wrote to Mr Dixon on 5 November 2004 seeking undertakings including an undertaking to transfer the domain name camalot.co.uk to the Complainant. Mr Dixon replied to the Complainant's letter of 5 November 2004 by fax on 22 November 2004 and confirmed that he had altered the contents of his website. The website now offered for sale various non-adult web cams and included a statement that The National Lottery Website was operated by Camelot Plc with a redirecting facility to redirect users looking for The National Lottery.
Following Mr Dixon's letter, the Complainant's Representative entered into negotiations with Mr Dixon between November 2004 and January 2005 as to the terms of settlement. [Copies of the correspondence were annexed to the Complaints.] During these negotiations Mr Dixon agreed to change the name CAMALOT to an alternative name and to transfer the domain name camalot.co.uk to the Complainant.
Finally, on 12 January 2005 Mr Dixon executed the settlement agreement prepared by the Complainant's Representative (the "Agreement") [a copy of which was annexed to the Complaint, apparently signed by Mr Dixon, but not by the Complainant.]
Mr Dixon is now in breach of a number of the undertakings at clause 2 of the Agreement. Mr Dixon has failed to transfer the domain name camalot.co.uk to the Complainant and although Mr Dixon altered the URL of camalot.co.uk so that it reported to a deadlink, the website to which users are referred at kaosuk.myftp.org still includes references to CAMALOT, by including the link, www.camalot.org.uk.
The Complainant has asked Mr Dixon to transfer the domain name camalot.co.uk to the Complainant and to remove all references to CAMALOT from his website but Mr Dixon has failed to do so.
During February 2005, the Complainant's Representative carried out checks on the status of camalot.co.uk and whilst doing so discovered the Domain Name camalot.org.uk. This Domain Name was registered on 24 November 2004. The Respondent (2) elected to omit her address details from the WHOIS database [for camalot.org.uk]. The Complainant suspects that the Registrant of the domain name camalot.org.uk and the Domain name camalot.co.uk are either the same person or are acting in concert.
Although Mr Dixon is not the actual Registrant of the Domain Name [camalot.org.uk], the Complainant submits that Mr Dixon is the directing mind behind the registration by the Respondent. This can readily be inferred from the fact that the Domain Name resolves to a website whose contents includes a picture of a webcam with the word 'CAMALOT'; the website has the same URL as Mr Dixon's website, http://kaosuk.myftp.org; the website has a link, www.kaosuk.net, which takes users directly to Mr Dixon's website; and Mr Dixon's website includes the Domain Name as a link.
The Complainant's Representative has contacted Mr Dixon in respect of his failure to transfer the Domain Name camalot.co.uk to the Complainant and his use of the Domain Name camalot.org.uk but has received no response. The Complainant has been unable to contact the Respondent (2) as the address details were omitted. The Domain Names are very similar to the Complainant's registered UK and Community CAMELOT trade marks. The Respondents are using the Domain Names without the Complainant's authorisation.
The Complainant submits that the Domain Names are Abusive Registrations for the following reasons:
a) The Respondent (1) was clearly aware of the Complainant's reputation in its registered CAMELOT trade marks and the goodwill which subsists in the CAMELOT name, since the Domain Name [camalot.co.uk] originally resolved to a website which framed the content of The National Lottery website. By doing so, the Respondent (1) infringed the copyright subsisting in The National Lottery website. Such framing was clearly intended, in combination with the choice of Domain Name, to confuse users into believing that the Domain Name was registered to, operated or authorised by, or otherwise connected with the Complainant. Further, the Respondent (1) was aware of this confusion as evidenced by his inclusion of a statement referring to The National Lottery website and a redirecting facility to redirect users looking for The National Lottery following the Complainant's correspondence of 5 November, 2004.
b) The Domain Names are each a classic example of typo-squatting. The Complainant believes that Mr Dixon registered the Domain Name [camalot.co.uk] and that the Respondent (2) was directed by Mr Dixon to register the Domain Name [camalot.org.uk] in the expectation that the misspelling[s] would divert traffic away from the Complainant's site to a site operated by Mr Dixon by confusing people or businesses into believing that the Domain Names were each registered to, operated or authorised by, or otherwise connected with the Complainant. Further, the business of the Complainant is unfairly disrupted.
c) The Respondent (1), Mr Dixon, has since the execution of the Agreement acted in bad faith in respect of his dealings with the Domain Name [camalot.co.uk]. The Respondent (1) has breached a number of the undertakings at clause 2 of the Agreement. The Respondent (1) has failed to transfer the Domain Name [camalot.co.uk] to the Complainant; has been using a domain name, camalot.org.uk, which comprises a word that is similar to the Complainant's registered CAMELOT trade marks; has used the Domain Name[s] to direct traffic to kaosuk.myftp.org; and has deliberately failed to inform the Complainant of the camalot.org.uk domain name when negotiating the Agreement. Further, the Respondent (1) has removed the statements referring to The National Lottery and redirecting facilities from his website.
d) [Mr Dixon's] actions outlined above are without due cause and in breach of a binding agreement. The Complainant contends that these matters should be weighed in the balance when considering whether [Mr Dixon's] activities constitute an Abusive Registration.
e) Mr Dixon (and the Respondent (2) by continuing to use or allowing the use of the Domain Name [camalot.org.uk] in association with Mr Dixon's website) are attempting to unfairly disrupt the Complainant's business by diverting users seeking information on the Complainant or seeking to play the Complainant's interactive Instant Win Games available on the Internet. In light of Mr Dixon's activities and the [second] Respondent's assistance by her registration and use of the Domain Name, it is highly likely that whilst the Domain Names remain in the hands of the Respondents, they will continue to be used in a manner which is likely to further unfairly disrupt the business of the Complainant;
f) The fact that the Respondent (2) appears to be acting in concert with Mr Dixon. The Complainant believes that this can readily be inferred from Mr Dixon's activities in respect of the domain name camalot.co.uk and the fact that the Domain Name resolves to a website at kaosuk.myftp.org, which for the reasons set out in this Complaint, appears to be operated by Mr Dixon.
g) The Respondents do not have any rights or legitimate interests in respect of the Domain Name because there is no relationship between the Complainant and the Respondents that would give rise to any licence, permission or any other equivalent entitlement by which the Respondents could use the Complainant's trade marks.
For the reasons set out above, the Respondents have registered and used the Domain Names in a manner, which takes unfair advantage of and is unfairly detrimental to the Complainant's Rights.
The Complainant requests transfer of the Domain Names to the Complainant.
Respondent:
The first Respondent provided the following submissions in a combined Response on behalf of both Respondents:
Brief History (camalot)
"Some time last year I registered the domain name camalot.co.uk for use as a free uk based webcam site (not adult) following on from an idea that was started in 1996 by myself and several others, forming part of 'WIZ' magazine an online E-zine (circa 1995), hosted at www.demon.co.uk/magpie/wiz and www.ifor.demon.co.uk/wiz, both now dead.
"We also purchased webamuk.net for the same project, a slightly more obvious choice, but as we had already been using camalot ( CAM A LOT ?) for some time, we would run both sites side by side, possibly one adult rated.
"It had never been our intention to infringe the rights of Camelot PLC (UK Lottery promoters).
"The 'framed' pages in question (on kaosuk.myftp.org) were not designed to ever be in the public domain and were stored in a directory (on kaosuk.myftp.org/camalot) called _PRIV, and were originally designed following a meeting with a client to show how incorporating other data (legally available, such as from another web site within our group) could give a different impression. It was only then that we realised the coincidence in name similarity, and used Camelot as a private working example, and if you are to fully convince me that these pages were in the public domain I would like to see the server logs for the dates in question, or a server directory listing.
"When we were eventually contacted by representatives of Camelot PLC, and it was evident that files in a _PRIV directory were being viewed publicly by Camelot we immediately shut down the site. We implemented a dead link while we tried to find out what had occurred. To date we stand by our original decision that these files were never in the public domain, something I am prepared to sware [sic] an affidavit for if necessary.
"However, after some correspondence with Camelot's representatives it was evident that
there would always be a problem with this domain name, and it was in the best interests of the UK National Lottery if we did not proceed with our original idea, and we agreed to
transfer ownership to Camelot PLC for an admin fee of £100 GBP, still leaving us with a loss of nearly £1000 GBP. Not to use similar names, and a few other conditions.
"The second domain name (camalot.org.uk) was registered during initial discussions with
Camelots representatives, before any agreement had been reached, and at a time when we were still developing the project off line. I also think there may have been a certain amount of negativity surrounding Camelots 'ransom', from our development at this time.
"We still agree with Camelot, it is in the best interests of all that Camelot hold these domain names, and we are more than happy to transfer them, at no cost even.
"We have, as far I as I was aware, signed an agreement to this effect, signed a statement giving up the domain name(s), etc, etc and returned these document to Camelots representatives by Royal Mail, signed for on delivery, for which we have a delivery confirmation, and I believe they were received, as Camelots representatives say they made payment as agreed, presumably sent by recorded mail, etc etc, but we have still not received payment or an agreement to stop.
"Yet still, I agree with Camelot in principle, the payment has never been an issue or we would have 'complained', and stuck to our original claim of £750 GBP. We do not object to Camelot having both names, and we will not register any 'similar' and go with webcamuk.net!!!
"We do object to being held to ransom, as do my 100+ clients whose services were affected by Camelots actions. Mainly the total ceasing of our main server connection from Telewest/Blueyonder, carried out by contacting our service provider, who decided to completely cut us off until we explained the situation to them and agreed to remove the disputed camalot site completely, which has remained the case since that date.
"How this could happen is rather frightening, I suppose in theory we could do the same and get Camelots UK National Lottery site removed with some simple 'bullshit' too ! But could you imagine what a national scandal that would create?
"We are currently listening to a possible 'joint action' by our clients for a complaint against Telewest/Blueyonder/Camelot for damages incurred during this period. We can not pursue this at this time as we are awaiting the outcome of this complaint, and our clients representatives will contact them with a view to an out of court settlement in due course. I can only presume that Telewest/Blueyonder will in turn contact Camelot with a view to discussing this further. I do not form part of this joint action, and am unable to, as I have agreed with Camelot not to pursue any future proceedings in connection with this dispute.
"On a personal note, I can't see what all the fuss is about, we have agreed to Camelots terms in full, done what they've asked without complaint, and yet still we are being threatened.
"I would also like to point out that My name is not Nixon, as appears in some email from Camelot, my current contact address is 42 Townsend Way, Northwood. Middlesex. HA6 1TF. This is the address that Camelot have contacted me at many times, and I have replied from in all cases. There are also several errors within the documents you have sent me. For example, 'The Complainant', on the first page is listed as 'camalot group plc'?
"However, we do not want to be 'picky' over technicalities, and are prepared to overlook many of these errors if this means we can progress this dispute and solve it, hopefully amicably.
"I still receive email from the current webcamuk/camalot team and the current mood is for going off on a tangent and producing a much darker anti-lottery site. Something I hasten to add I strongly disagree with, have no control over, and will severely distance myself from !
"I hope this helps, but should you require any additional information, please contact me, because, believe me, I don't want Camelot breathing down my neck, I just want to be happy."
In an annex, the Respondents further stated:
"To make life easier for all, and to save Camelot having to go through this entire procedure again, both Myself and Miss Sozou are prepared to have both these domain name disputes jointly settled at the same time.
"I can confirm that Myself and Miss Sozou currently reside at the same address."
General
Paragraph 2 of the Policy requires that, for the Complainant to succeed, it must prove to the Expert, on the balance of probabilities, both that it has Rights in respect of a name or mark which is identical or similar to the Domain Names; and that the Domain Names, in the hands of the Respondent, are Abusive Registrations as defined in Paragraph 1 of the Policy.
Complainant's Rights
The Complainant in this case has asserted that the Domain Names are "identical or similar to a name or mark" in which it has Rights.
It is undisputed that the Complainant has relevant rights in CAMELOT, in particular as a registered trade mark, and that those rights predate the registration of the Domain Names. It is accepted that the domain suffices (.co.uk and .org.uk) may be disregarded for the purposes of assessing similarity under the Policy. The distinctive element "camalot" in both the Domain Names is plainly aurally and visually very similar, and recognisable indeed as a common misspelling of CAMELOT.
Accordingly, for the purposes of the Policy, the Expert readily concludes that the Complainant does have Rights in this case in respect of a name or mark, which is similar to the Domain Names at issue.
Abusive Registration
The Complainant also has to show that the Domain Names are Abusive Registrations. 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. Those of potential relevance to the present case include:
3 a i 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;
iii. The Complainant can demonstrate that the Respondent is engaged in a pattern of registrations where the Respondent is the registrant of domain names (under .uk or otherwise) which correspond to well known names or trade marks in which the Respondent has no apparent rights, and the Domain Name is part of that pattern;
iv. It is independently verified that the Respondent has given false contact details to us
Clearly, on the facts, it may reasonably be said that the Domain Names were "registered or otherwise acquired in a manner, which at the time when the registration or acquisition took place, took unfair advantage of or [were] unfairly detrimental to the Complainant's Rights".
Whilst there is something of the Catch 22 ("damned if you do, damned if you don't") about the Complainant's arguments that the inclusion of a redirection to The National Lottery website and the subsequent removal of the redirection are both evidence of Abusive Registration, the original framing of the Complainant's website, whether or not this was in an allegedly "private" directory, demonstrates that the first Respondent was clearly aware of the likelihood of confusion arising from the use of camalot.co.uk.
The subsequent registration of camalot.org.uk ostensibly in the name of Natalie Sozou, but with [email protected] as the email contact, would appear at best an act of ill-considered aggravation when the first Respondent was already aware of the Complainant's objections to camalot.co.uk.
By their own admission, the Respondents also appear to have thought better of their original actions in this respect, stating:
"… after some correspondence with Camelot's representatives it was evident that there would always be a problem with this domain name, and it was in the best interests of the UK National Lottery if we did not proceed with our original idea…"; and
"We still agree with Camelot, it is in the best interests of all that Camelot hold these domain names, and we are more than happy to transfer them, at no cost even."
In these circumstances, therefore, for the purposes of the Policy, the Expert concludes that the Domain Names, so long as they remain in the hands of the Respondents, are Abusive Registrations.
Having concluded that the Complainant has applicable Rights and that the Domain Names, in the hands of the Respondents, may be characterised as Abusive Registrations for the purposes of the Policy, the Expert orders that the Domain Names, camalot.co.uk and camalot.org.uk be transferred to the Complainant.
Keith Gymer
August 4, 2005