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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Countryside Alliance Limited v. David Pearce, Anti-Censorship Alliance

Case No. D2001-0862

 

1. The Parties

The Complainant is the Countryside Alliance Limited of 367 Kennington Road, London SE11 4PT, United Kingdom.

The Respondent is David Pearce, Anti-Censorship Alliance, 7 Lower Rock Gardens, Brighton BN2 1PG, United Kingdom.

 

2. The Domain Name and Registrar

The domain names at issue are:

<countryside-alliance.com>; and <countrysidealliance.net>

and the Registrars are respectively:

Tucows Inc; and CORE Internet Council of Registrars

 

3. Procedural History

The WIPO Arbitration and Mediation Center [the Center] received the Complaint on July 6, 2001 [electronic version] and on July 10, 2001 [hard copy]. The Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy [the Policy], the Rules for Uniform Domain Name Dispute Resolution Policy [the Rules], and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy [the Supplemental Rules]. The Complainant made the required payment to the Center.

The formal date of the commencement of this administrative proceeding is July 19, 2001.

On July 12, 2001, the Center transmitted via email to Tucows Inc and to CORE Internet Council of Registrars requests for registrar verification in connection with this case and on July 17, 2001, both Tucows Inc. and CORE transmitted by email to the Center verification responses confirming that the registrant for the domain name <countryside-alliance.com> is Anti Censorship Alliance and that the registrant for the domain name <countrysidealliance.net> is Countryside Alliance for Animal Rights and that the contact for both administrative and billing purposes for both domain names in issue is David Pearce.

Having verified that the Complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted on July 19, 2001, to the email addresses provided by the Registrar and/or the Complainant, e-mail addresses shown on applicable web page and to

postmaster@countryside-alliance.com
postmaster@countrysidealliance.net

this Notification of Complaint and Commencement of the Administrative Proceeding together with the Complaint. The Center advised that the Response was due by August 7, 2001. On the same day the Center transmitted by fax and by mail copies of the foregoing documents to the Respondent.

A Response was received from the Respondent on August 7, 2001 [electronic version] and on August 8, 2001 [hard copy]. On August 8, 2001, Acknowledgement of Receipt of Response was sent to the Complainant and to the Respondent by email using the preferred method of communications for electronic-only material as indicated in the Complaint and in the Response.

Having received on August 14, 2001, Mr. David Perkins' Declaration of Impartiality and Independence and his Statement of Acceptance, the Center transmitted to the parties on August 15, 2001, a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. David Perkins was formally appointed as the Sole Panelist. The Projected Decision Date was August 29, 2001. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and the Supplemental Rules.

Having reviewed the communication records in the case file, the Administrative Panel finds that the Center has discharged its responsibility under paragraph 2(a) of the Rules "to employ reasonably available means calculated to achieve actual notice to Respondents". Therefore, the Administrative Panel shall issue its Decision based upon the Complaint, the Response, the Policy, the Rules and the Supplemental Rules.

 

4. Factual background

4.1.1 The Complainant and its Activities

The Complainant is a company incorporated in the United Kingdom under number 03425827. It was incorporated on August 24, 1997. The Complainant is a non-profit making organisation that lobbies on behalf of issues concerning the countryside in the United Kingdom, particularly field sports. It is opposed to the banning of, inter alia, fox hunting which is under consideration by Government in the United Kingdom.

4.1.2 The Complainant's Name and Trade Mark

- The Complainant is the proprietor of United Kingdom Trademark No. 2,239,734 dated July 18, 2000, for the word mark COUNTRYSIDE ALLIANCE and device registered in Classes 16, 35 and 41.

- The Complainant asserts that it is well known under the name COUNTRYSIDE ALLIANCE by reason of its lobbying of national United Kingdom and European governments which is reported in UK daily newspapers. By way of illustration the Complaint lists 20 references made to it in such newspapers during the months of May 2001 alone. The newspapers listed are The Times; The Telegraph; The Guardian; The Independent and The Financial Times. The Complaint also states that the COUNTRYSIDE ALLIANCE has been referred to or has made submissions in a number of UK governmental reports during 2001.

- The Complaint states that its said registered trademark has been licensed to a number of parties for a variety of merchandise ranging from printed matter to clothing. As to clothing, it cites by way of example the COUNTRYSIDE ALLIANCE jumper found at "http://www.smartturnout.co.uk/acatalog/".

4.1.3 The Complainant's Domain Names

The Complainant is the owner of the following domain names, which incorporate the COUNTRYSIDE ALLIANCE name and mark.

Domain Name

Date Registered

countryside-alliance.org.uk

July 22, 1999

countryside-alliance.co.uk

July 22, 1999

countryside-alliance.net

July 22, 1999

countryside-alliance.org

September 24, 1997

countrysidealliance.com

June 2, 1998

The registration dates listed above have been obtained by the Panel through its own searches.

4.1.4 The Complainant's Website

The Complainant operates a website at <countryside-alliance.org>, which appears to have been registered on September 24, 1997, a month after the Complainant company was incorporated on August 28, 1997. The Complainant asserts that in the 12 month period between August 2000 and July 2001 its website recorded some 12 million hits. The website at <countryside-alliance.org> is linked by metatags to the other domain names owned by the Complainant listed in paragraph 4.1.3. above.

4.2 The Respondent

4.2.1 The Objects of the Respondent's Organisation

The Respondent states that the purposes for which his organisation was established are "to protect the interests of the countryside, its inhabitants and the animals who live in it against the violent havoc, killing, suffering and mayhem promoted by supporters of the Complainant".

4.2.2 The Domain Names in Issue

These were created on the following dates:

Domain Names

Date Registered

countryside-alliance.com

June 21, 1998

countrysidealliance.net

November 19, 1999

4.2.3 The Respondent's Website

The Respondent states that its website at <countryside-alliance.com> dates from early 1999.

4.2.4 The Respondent's Opposition to the Complainant's Organization

This can be summarised as follows:

- Independent Opinion Polls and the House of Parliament both uphold the Respondent's claim to represent a far broader alliance of countryside opinion than the Complainant Organization.

- The Complainant's claim under the Policy to have the domain name <countrysidealliance.org> of one Ian McMillan transferred to it amounts to reverse domain name hijacking. Mr. McMillan is a member and supporter of the Respondent's Organization.

- The Complainant Organisation has infiltrated, harassed and otherwise disrupted Organisations opposed to cruelty to animals. The Response refers to a newspaper report that the Complainant funds another Organisation known as the Countryside Animal Welfare Group, which campaigns to encourage 600 hunt supporters to join the RSPCA in order to overturn that Society's long-standing opposition to bloodsports.

- The Complainant uses the meta keyword tags of its opponents, for example the League Against Cruel Sports, to divert traffic to its own website.

- The Complainant sends threatening letters and faxes to ISPs and web service providers.

- The Complainant uses violence and threats of violence against anti-bloodsports campaigners.

- The Complainant organises its members to infiltrate the League Against Cruel Sports; the National Trust; and the RSPCA by passing themselves off as animal lovers.

- The Complainant uses its domain names in bad faith in an attempt to pass itself off as the voice of the countryside, whereas it represents an extremist minority group promoting the abuse of animals for human pleasure.

 

5. The Parties' Contentions

5.1 The Complainant

5.1.1 Identical or Confusingly Similar

The Complainant contends that the Respondent's domain names in issue are similar to the Complainant's registered trademark and identical to its corporate name. Further, the domain names in issue, except for the suffixes, are identical to the Complainant's domain names, including the domain name <countryside-alliance.org> which hosts the Complainant's website.

5.1.2 Rights or Legitimate Interests

The Respondent has no rights or legitimate interests in respect of either of the domain names in issue for the reason that he has deliberately chosen the Complainant's name and mark COUNTRYSIDE ALLIANCE as domain names for a platform (the Respondent's website) promoting material directly opposed to the pro-fieldsports lobbying activities of the Complainant. The Respondent cannot, in the Complainant's view, bring himself within any of the circumstances of paragraph 4c of the Policy as demonstrating rights to or legitimate interests in the domain names in issue. Specifically, his use of the domain names is not fair use.

5.1.3 Registered and Used in Bad Faith

Here, the Complainant's case is as follows:

- The Respondent registered the domain names in issue in order to draw the public away from the Complainant's website and to pass off the Respondent's website as that of the Complainant.

- The Respondent has registered the domain names in issue in order to prevent the Complainant from registering those names and making legitimate use of them.

- The domain name <countrysidealliance.org> [referred to in paragraph 4.2.4 above], although registered in the name of Unfinished Business, shows the Respondent's address in Brighton as the Technical Contact. The Complainant asserts that the Respondent, therefore, controls this domain name which he has registered in the name of a third party. This domain name apparently resolves to a website which is the same as that to which the domain names in issue in this administrative proceeding resolve.

- The Complainant's case is, essentially, that there is evidence of registration and use in bad faith, since the Respondent's activities fall within paragraph 4b(ii) and (iii) of the Policy.

 

5.2 The Respondent

5.2.1 Identical or Confusingly Similar

The Respondent's case is as follows:

- The Complainant's registered trademark registered July 18, 2000, post dates registration of the domain names in issue, which were registered on June 21, 1998, and November 19, 1997.

- The Respondent has continuously operated its website at <countryside-alliance.com> since early 1999, so that its legitimate use of the domain names in issue predates the Complainant's registered trademark.

- The Complainant's COUNTRYSIDE ALLIANCE name and mark, replacing the name British Field Sports Society, was "… chosen in bad faith, designed falsely and misleadingly to suggest that your client [the Complainant] speaks for the countryside - rather than a narrow sectional group that defends bloodsports".

- The Complainant has no reputation and goodwill in the name COUNTRYSIDE ALLIANCE as suggested by their lawyers in a cease and desist letter.

- There is no risk of a likelihood of confusion by members of the public. The content of the opposing websites - the Respondent's website being anti-hunting and the Complainant's being pro-hunting - is such that it is just not credible to suggest that the public are likely to be confused into believing that there is a connection between the two organisations.

Furthermore, the respective logos of the parties are completely different.

5.2.2 Rights or Legitimate Interests

The Respondent's use of the domain names in issue is bona fide and predates any complaint from the Complainant. Since, as stated above, the content of the parties' respective websites is so diametrically different, members of the public will not be mislead.

5.2.3 Registered and Used in Bad Faith

The Respondent claims to represent a far broader alliance of country opinion than the Complainant, "… hence the existence of our organization, web address and title".

The Complainant has challenged this, referring to a search of the GOOGLE internet engine for countryside alliance, which in the first 30 hits made only two references to the Respondent.

The Respondent’s answer is that

"… if this criterion were accepted for the purposes of a UDRP challenge, then the Google test would give legitimacy to the average porn site; encourage spamming; discriminate against framed sites, and favour the claims of unscrupulous web-site operators who use the meta keyword tags of their opponents to divert traffic away from anti-cruelty sites to their own".

The Respondent exhibits a GOOGLE search for animal rights, which covers related categories including animal welfare. The extract exhibited to the Response includes the following:

"The Countryside Alliance for Animal Rights - "http:/www.countryside-alliance.com"/ The Animal Rights FAQ site sorted by topic. Also includes US and UK organisations, a directory of Who's Who in Animal Rights and reference to essential books and periodicals."

The Respondent's case is that its organisation is well-known, there is no intent to pass off its website as that of the Complainant, and the public are not being mislead. Demonstrably, the domain names in issue were neither registered nor are they being used in bad faith.

 

6. Discussion and Findings

6.1 The Policy paragraph 4(a) provides that the Complainant must prove each of the following:

- that the Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

- the Respondent has no rights or legitimate interests in respect of the domain name; and

- the domain has been registered and is being used in bad faith.

6.2 The Policy paragraph 4(c) sets out circumstances which, in particular but without limitation, if found by the Panel to be proved shall demonstrate the Respondent's rights or legitimate interests in the domain name in issue.

6.3 The Policy paragraph 4(b) sets out circumstances which, again in particular but without limitation, if found by the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.

6.4 As stated, the circumstances set out in paragraphs 4(b) and (c) of the Policy are not exclusionary. They are without limitation. That is, the Policy expressly recognises that other circumstances can be evidence relevant to the requirements of paragraphs 4(a)(ii) and (iii) of the Policy.

6.5 Identical or Confusingly Similar

The Complainant's use of the name and mark COUNTRYSIDE ALLIANCE clearly predates registration of the two domain names in issue. The Complainant company was incorporated in August 1997, its primary domain name <countryside-alliance.org> was registered in September 1997, the earliest of the domain names in issue was registered in June 1998 and the Respondent's website dates from early 1999.

6.6 Here, the Complainant's registered trademark was not applied for until July 2000, over a year after the Respondent's website was set up under the earlier of the two domain names in issue in early 1999. The Panel is aware of differing views of Panelists in other Complaints under the Policy as to the relevance of the date of a registered trademark. This Panelist takes the view that for a Complainant to be able to rely on a registered trademark, it must predate registration of the domain name in issue. Other Panelists disagree on the basis that this is not stated explicitly in paragraph 4(a)(i) of the Policy. It may, in their view however, be relevant to the issue of rights or legitimate interests for the purposes of paragraph 4(a)(ii).

6.7 However, common law or equivalent rights to a trademark can suffice for the purposes of paragraph 4(a)(i). On the evidence, does the Complainant have such rights in this case? Evidence adduced in the Complaint going to reputation of the Complainant's name and mark which post dates registration of the first of the domain names in issue (June 1998) is not, in the Panel's opinion, particularly relevant. But, on balance, taking all the circumstances of the Complainant's use of its COUNTRYSIDE ALLIANCE name into account, the Panel considers that the name is well known at least in the United Kingdom and that the reputation in that name precedes the registration and use of the domain names in issue.

6.8 The substantive component of both the domain names in issue is COUNTRYSIDE ALLIANCE, whether hyphenated or run together as one word. They are then to all intents and purposes identical to the Complainant's corporate name, to its earlier registered domain names <countryside-alliance.org> [the primary domain name registered in September 1997] and <countrysidealliance.com> [registered June 1998] and to the nomenclature by which the Complainant is known and referred to. The Complainant, therefore, succeeds in satisfying the requirement of paragraph 4(a)(i) of the Policy.

6.9 Rights or Legitimate Interests

There is no doubt in the Panel's mind about the bona fide nature of the Respondent's deep felt opposition to the hunting of animals and his belief that those views are representative of the majority of the British public. The Response concludes "The panel is being asked by the Complainant to pass judgment on a substantive ethical issue - namely who represents the countryside - in the guise of a domain name dispute."

6.10 It is not, however, the bone fides of the Respondent's beliefs nor the identity of which organisation is most representative of the British countryside which falls for decision in this administrative proceeding. The question is, rather, whether the Respondent's use of the two domain names in issue is a fair use permitted under the Policy.

6.11 The Panel is caused to wonder why the Respondent would chose precisely the same substantive name as the Complainant - namely, COUNTRYSIDE ALLIANCE - as the platform for publicising its own diametrically opposite views in relation to hunting. It could just as effectively promote its views under a different banner, perhaps more specifically descriptive of its campaign. For example, the Anti Hunting Association.

6.12 Doubtless the Respondent believes that the spoiling tactic of registering domain names incorporating the Complainant's name and mark is fully justified given its view of the abhorrent nature of the activities which the Complainant Association seeks to defend and preserve. But, that does not in the Panel's view constitute legitimate interests in the domain names in issue for the purposes of the Policy. In applying to register the domain names in issue the Respondent has represented and warranted that to his knowledge registration of those names will not infringe upon or otherwise violate the rights of any third party. The Respondent clearly well knew of the existence of the Complainant under its COUNTRYSIDE ALLIANCE name and banner. Indeed, in the Response he states that the purpose for which his organisation was established was to protect the interests of the countryside against the Complainant's supporters [see paragraph 4.2.1 above].

6.13 Therefore, whilst fully understanding the bona fides of the Respondent's beliefs, the Panel cannot find that he has rights or legitimate interests in the domain names in issue for the purposes of paragraph 4(a)(ii) of the Policy. The Complainant, therefore, also succeeds on this leg of the requirements.

Registered and Used in Bad Faith

6.14 Lack of rights or legitimate interests in a domain name can often be a factor in assessing bad faith for the purposes of paragraph 4(a)(iii) of the Policy.

6.15 The Response refers to Ian McMillan being a member and supporter of the Respondent's Organisation. It appears that he is connected with the <countrysidealliance.org> domain name registered June 17, 1999, which has the same Technical Contact address as the Respondent and which is the subject of a separate Complaint by the Complainant under the Policy. The registering of both the domain names in issue coupled with this third domain name is, in the Panel's view, indicative of a pattern of conduct aimed at preventing the trademark owner [the Complainant] from reflecting its mark in a corresponding domain name.

6.16 The Panel also finds that the domain names in issue have been registered primarily for disrupting the Complainant's business. The Respondent is, of course, quite free to express its views and in that way to seek to persuade the British Public and policy makers that the Complainant's lobbying activities under the COUNTRYSIDE ALLIANCE banner should be resisted. That right does not justify hijacking the Complainant's name and mark by registering identical domain names.

6.17 It should not be necessary for the Complainant to have to register its mark and name, COUNTRYSIDE ALLIANCE, as domain names in every conceivable form and combination just to avoid instances of this type. COUNTRYSIDE ALLIANCE is a name and mark coined by the Complainant, registered as a trademark and service mark by the Complainant and used by the Complaint as a domain name for its website to promote its activities and views. The fact that another body of opinion is genuinely diametrically opposed to those views does not overcome a finding of bad faith under paragraph 4(a)(iii) of the Policy.

 

7. Decision

For all the foregoing reasons, the Panel decides that the Complainant has proved each of the three elements of paragraph 4(a) of the Policy. Accordingly, the Panel requires that the registrations of the domain names <countryside-alliance.com> and <countrysidealliance.net> be transferred to the Complainant.

 


 

David Perkins
Sole Panelist

Date: August 20, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2001/d2001-0862.html

 

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