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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Stephen Cleeve v. Domains by Proxy Inc./ Consumer Protection

Case No. D2007-0731

 

1. The Parties

The Complainant is Stephen Cleeve, London, United Kingdom of Great Britain and Northern Ireland, represented by Schillings, United Kingdom of Great Britain and Northern Ireland.

The First Respondent is Domains by Proxy, Inc. , Scottsdale, Arizona , United States of America, and appears to be merely a privacy service provider. The Second Respondent is Consumer Protection, Sydney, New South Wales, Australia. The First and Second Respondent are for convenience collectively referred to as the Respondent.

2. The Domain Name and Registrar

The disputed domain name <stephencleeve.com> is registered with Wild West Domains, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 18, 2007. On May 21, 2007, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the domain name at issue. On May 21, 2007, Wild West Domains, Inc. transmitted by email to the Center its verification response confirming that the Second Respondent is listed as the registrant and providing the contact details. In response to an email communication from the Center regarding the registrant identity and contact information provided by the Registrar, the Complainant filed an amendment to the Complaint on June 7, 2007. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 8, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was June 28, 2007. The Response was filed with the Center on June 27, 2007.

The Center appointed Susanna H.S. Leong as the sole panelist in this matter on July 17, 2007. 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.

A brief email communication was received from the Complainant on July 18, 2007, which the Center subsequently forwarded to the Panel for consideration as requested. The Panel has considered this submission, noting that it has no direct implications for the Panel’s Decision in the present proceedings.

 

4. Factual Background

The Complainant is a businessman and operates a property company “Commercial Land”. He has a UK registered trade mark in the United Kingdom of Great Britain and Northern Ireland in the name of “Stephen Cleeve” in Class 36 for services in relation to land acquisition, commercial real estate and investments.

The disputed domain name <stephencleeve.com> was registered by the Respondent on August 3, 2005.

 

5. Parties’ Contentions

A. Complainant

Identical or Confusingly Similar

The Complainant has adduced evidence to prove that he is the registered trade mark owner of the name STEPHEN CLEEVE and he has rights. The Complainant contends that the disputed domain name <stephencleeve.com> is identical to the Complainant’s personal name.

Rights or Legitimate Interests

The Complainant contends that the Respondent does not have any rights or legitimate interests in the disputed domain name for the following reasons:

- That as far as the Complainant is aware the Respondent has acquired no rights in respect of the name “Stephen Cleeve”;

- That the Respondent is using the domain name in such a way as to deliberately tarnish the reputation of the Complainant Stephen Cleeve and to unfairly disrupt the business of the Complainant; and

- That in the circumstances, the Respondent has no rights or legitimate interest in the disputed domain name, in particular the Complainant does not consider that a personal campaign waged against him by the Respondent could ever be legitimate, even though the Respondent may consider that he is acting in the public interest, for the reason that the Respondent’s freedom of expression is not restrained if the domain name is transferred to the Complainant since he could register a different, unoffending domain name from which he could, subject to relevant laws, express his views.

Registered and Used in Bad Faith

The Complainant contends that the disputed domain name was registered and is being used in bad faith for the following reasons:

- That the Respondent registered the domain name on August 3, 2005 without the knowledge or authorization of the Complainant;

- That the domain name has been registered for the purpose of damaging not only the Complainant’s reputation and the business activities carried on by him but also to affect the business activities of his partnership “Commercial Land”;

- That the Respondent has no personal interest in the domain name; and

- That the Respondent continues to use the domain name in dispute and continues to intentionally degrade and smear the name of the Complainant and intentionally harm his business activities.

B. Respondent

The Respondent (and in particular the second Respondent, Consumer Protection) contends that it has legitimate interests in the disputed domain name for the following reasons:

- That the Complainant is well-known international con man who targeted (and cheated) consumers in England, Ireland, North America, Europe, the Middle-East, Asia and Australia and that the Respondent has set this site to protect consumers of the world against being cheated by Stephen Cleeve;

- That the Respondent’s website like the BBC and the Australian Victorian Government websites is a legitimate attempt to warn others not to become victims of these schemes and this man;

- That the Respondent’s website brings together reports from respected international journalists, consumer advocates, experience investors and victims of the complainant;

- That the name Stephen Cleeve, in most peoples’ eyes, is very much linked to the Complainant’s scams exposed by all the other websites;

- That the Respondent’s website does not tarnish the Complainant’s name as it is the activities of the Complainant that tarnish his name not the reporting of them;

- That if there are libelous contents on the Respondent website, the Complainant should take the issues up with the appropriate court but no action has been taken, only threatened, as the Respondent believes that there are no grounds for any action; and

- That the Complainant has registered a trade mark for his name in 2006 and he has also registered the domain names <stephencleeve.net>; <stephencleeve.org>; <stephencleeve.info>; <stephencleeve.biz> and <stevecleeve.com>; <stevecleeve.net>; <stevecleeve.org>; <stevecleeve.info>. However, not one of these sites has any content and the Respondent contends that the Complainant has no interest in using these names in relation to his business activities. The Respondent believes that the Complainant’s trade mark is registered for the purpose of stopping the truth from being told about the Complainant than for any legitimate business reason.

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the disputed domain name, the Complainant must establish that each of the three following elements is satisfied:

i. the domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;

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.

Paragraph 4(a) of the Policy clearly states that the burden of proof lies with the Complainant to establish that all these three elements are satisfied in this proceeding.

Pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under the Rules of any request from the Panel, the Panel shall draw such inferences therefrom, as it deems appropriate.

On the basis of the evidence introduced by the Complainant and in particular with regard to the content of the relevant provisions of the Policy, (paragraphs 4(a), (b), (c)), the Panel concludes as follows:

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name <stephencleeve.com> registered by the Respondent is identical or confusingly similar to the Complainant’s trade mark STEPHEN CLEEVE.

B. Rights or Legitimate Interests

The burden of proof on this element lies with the Complainant. The Respondent is not a licensee of the Complainant and is not otherwise authorized to use the Complainant’s trade mark. Thus, the Panel finds that the Complainant has made out a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name.

However, it is well established by previous UDRP Panel decisions that once a Complainant establishes a prima facie case that a respondent lacks rights or legitimate interests to a disputed domain name, the burden of proof shifts to the Respondent to rebut the Complainant’s contentions.

According to paragraph 4(c) of the Policy, a respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:

(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The Panel finds that the Respondent’s use of the disputed domain is to establish a website for criticism and commentary about the Complainant’s business activities. This constitutes legitimate commercial use and fair use within the meaning of the policy. See Bridgestone Firestone, Inc., Bridgestone/Firestone Research, Inc., and Bridgestone Corporation v. Jack Myers WIPO Case No. D2000-0190; TMP Worldwide Inc. v. Jennifer L. Potter, WIPO Case No. D2000-0536; and Howard Jarvis Taxpayers Association v. Paul McCauley, WIPO Case No. D2004-0014. Based on the evidence adduced before it, the Panel finds that the Respondent’s principal purpose in using the domain name is not for commercial gain by misleadingly divert consumers to its website but rather to criticize and comment on the Complainant and its business activities. The Panel further finds that there is no evidence which shows that the Respondent’s use of the disputed domain name is to tarnish the Complainant’s trade mark. The Panel also notes that the Complainant’s trade mark was only registered on November 8, 2006, almost a year after the Respondent has registered its domain name on August 3. 2005. The Panel further notes the apparent absence of material presented by the Complainant regarding its use of its registered trade mark STEPHEN CLEEVE in relation to any claimed goods or services.

The Panel thus finds that the Complainant has failed to establish the second part of the test.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the domain name in bad faith, namely:

(i) circumstances indicating that the Respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) the Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product.

It is important to note that the Complainant only registered its STEPHEN CLEEVE trade mark on November 8, 2006, whilst the disputed domain name has already been registered by the Respondent on August 3, 2005. According to the consensus view of the WIPO panelists, normally “when a domain name is registered before a trademark right is established, the registration of the domain name was not in bad faith because the registrant could not have contemplated the complainant’s non-existent right.” See John Ode dba ODE and ODE - Optimum Digital Enterprises v. Intership Limited, WIPO Case No. D2001-0074; Digital Vision, Ltd. v. Advanced Chemill Systems, WIPO Case No. D2001-0827; PrintForBusiness B.V v. LBS Horticulture, WIPO Case No. D2001-1182.

Furthermore, the Panel finds that there is no evidence that the Respondent (i) registered the disputed domain name primarily to sell it to the Complainant; (ii) engaged in a pattern of conduct to prevent trade mark owners from reflecting their marks in domain names; (iii) sought to disrupt the business of a competitor; or (iv) intentionally attempted to attract Internet users to its site for commercial gain. On the contrary, the Panel finds that the primary purpose of the Respondent’s website is for criticism and commentary of the Complainant’s business activities.

It is an accepted principle that the list of circumstances showing bad faith under the Policy is not exhaustive and the Complainant has asserted that the Respondent’s use of the disputed domain name is defamatory and thus in bad faith. However, the merits of the Complainant’s assertions that the Respondent’s claims are defamatory and libelous are beyond the scope of the present proceeding and to the extent that the Complainant wishes to pursue the issue should in the panel’s view be adjudicated in an appropriate judicial forums.

The Panel thus finds that the Complainant has failed to establish the third part of the test.

 

7. Decision

For all the foregoing reasons, the Complaint is denied.

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Susanna H.S. Leong
Sole Panelist

Dated: July 31, 2007