Do they really sell this product to consumers and layman on the back of a contract that requires no legal representation at the point of sale???
I am pretty clever but with this recent comment I am totally confused:-
This leaves the second limb. Is the Domain Name, in the hands of the Respondent, an Abusive Registration? 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. There being no suggestion that the Respondent has engaged in a pattern of making Abusive Registrations and there being no suggestion that the Respondent has given to Nominet false contact details, the only potentially relevant ‘factors’ in paragraph 3 are to be found in subparagraphs i and ii, which read as follows: i Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily: A. for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly associated with acquiring or using the Domain Name; B. as a blocking registration against a name or mark in which the Complainant has Rights; or 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.” The Expert interprets “as” in sub-paragraph 3.i.B as being synonymous with “for the purpose of”. Were it to be interpreted otherwise all domain name registrations would inevitably constitute “blocking registrations” for any later arrival wishing to use the name in question. knightslettings.co.uk
'Fair use’ of a domain name is one factor which may be evidence that that domain name is not an abusive registration (paragraph 4 (a) (i) C of the DRS Policy). In assessing what is and is not fair use, paragraph 4.b. of the DRS Policy may come into play: “Fair use may include sites operated solely in tribute to or in criticism of a person or business” It may be necessary therefore to consider both the Respondent’s intentions at the time of registration of the Domain Name and how the Domain Name has been used thereafter. In his submission and in the content which he has placed on the website at site using the name, the Respondent makes it clear that he has a commercial dispute with the Complainant; the Complainant acknowledges this but has a different take on the facts. The DRS is not an appropriate forum for determining the veracity of such claims by either party. The Decision of the Appeal Panel in DRS 02193 (Guidestar.co.uk) sets out the basis of dealing with "protest sites" where the name used is identical to a name in which the complainee has rights. "Registering as a domain name, the name of another (without any adornment), knowing it to be the name of that other and intending that it should be recognised as the name of that other and without the permission of that other is a high risk activity insofar as the DRS Policy is concerned. Ordinarily, it would be tantamount to impersonating the person whose name it is. Rarely will it be the case that deliberate impersonation of this kind will be acceptable under the DRS Policy. Various decisions under the DRS Policy have condemned such practices including the following: “In the view of the majority of the Panel, in the context of a tribute site, the vice is in selecting a domain name, which is not one's own name, but which to one's knowledge is identical to the name of another, which one has selected precisely because it is the name of that other and for a purpose which is directly related to that other. For a tribute or criticism site, it is not necessary to select the precise name of the person to whom one wishes to pay tribute or criticise. In this case the domain name could have been 'ilovescoobydoo.co.uk', for example. Taking the Domain Name in these circumstances arguably amounts to impersonation of the owner of the name or mark. Substantial numbers of people will have visited the Respondent's website (the Respondent admits to a total of over 37,000 visitors to his site) believing that they were visiting the site of the Complainant, a phenomenon sometimes referred to as 'initial interest confusion'. Prior to the posting of the disclaimer, those visitors might well not have been disabused. The fact that the Respondent was selling official merchandise may have encouraged those visitors in their belief that they were visiting an authorised/licensed site. Notwithstanding the Respondent's denial of any advantage, the Panel is of the view that on the balance of probabilities there must have been an advantage to the Respondent of some kind. Whether or not that 'advantage' has led to financial gain is irrelevant. The question is as to whether the advantage he has taken has been fair.” [Appeal decision DRS 00389 – scoobydoo.co.uk] and: “The Expert should also add that, although there is no evidence to suggest the Respondent's purpose in registering the Domain Name, was one of the three purposes set out in paragraph 3(a)(i) of the Policy, the Expert concludes that there is no obvious reason why the Respondent could possibly be justified in registering the Domain Name for any legitimate purpose. The Domain Name comprises a distinctive made up name. It is identical to the Complainant's trade mark. There is no other UK company using the inventive word which comprises the Complainant's trade mark. In the hands of the Respondent the Domain Name constitutes a threat hanging over the head of the Complainant and there are many obvious and potentially damaging uses to which the Domain Name could be put.” [DRS 00193 – harmankardon.co.uk] knightslettings.co.uk
The fact, if it be a fact, that the Domain Name is being used as part of a URL for a protest site is not of itself indicative of fair use. Paragraph 4.b of the DRS Policy merely indicates that such a use may constitute fair use. Much will depend upon all the surrounding circumstances, including in particular the identity of the domain name itself. A finding of fair use will be much more likely in relation to a ‘-sucks’ domain name e.g. guidestarsucks.co.uk." However, in the instant case, unlike that in DRS 02193, there is no evidence that the Respondent has ever used the name for other than a complaint site. The Expert must, in coming to his decision have regard to the specific wording of the Policy, "Fair use may include sites operated solely in tribute to or in criticism of a person or business." The Expert is drawn to the word "may" which makes it clear that even if the site is "operated solely in criticism of a person or business", it may still be an abusive registration. On the other hand, it may not. The importance is to look at all the circumstances of the case and thereafter for the Expert to determine whether the use of a name meets the very narrow test for criticism sites. In this case, the Expert is concerned that the name chosen by the Respondent is identical to the trading name of the Complainant; no prefix or suffix has been added which might indicate the fact of the protest. However, unlike the situation in DRS 02193, the Respondent is not presently, nor is there any indication that the Respondent has ever, used the site other than "solely in criticism". There are no links to other businesses, no links to other sites, and no advertisements. The site is solely and simply "in criticism" of the Complainant. In these circumstances, the Expert finds that the Domain Name is not an Abusive Registration within the definition of that term in paragraph 1 of the Policy on the basis that its use was fair as defined in paragraph 4b of the Policy. 9. Decision In light of the foregoing findings, namely that whilst the Complainant has rights in respect of a name or mark which is identical to the Domain Name, on the basis that the Respondent is making fair use of the Domain Name as defined in the Policy, the Domain Name, in the hands of the Respondent, is not an Abusive Registration. Accordingly, the Expert rejects the Complaint.
I am pretty clever but with this recent comment I am totally confused:-
This leaves the second limb. Is the Domain Name, in the hands of the Respondent, an Abusive Registration? 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. There being no suggestion that the Respondent has engaged in a pattern of making Abusive Registrations and there being no suggestion that the Respondent has given to Nominet false contact details, the only potentially relevant ‘factors’ in paragraph 3 are to be found in subparagraphs i and ii, which read as follows: i Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily: A. for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly associated with acquiring or using the Domain Name; B. as a blocking registration against a name or mark in which the Complainant has Rights; or 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.” The Expert interprets “as” in sub-paragraph 3.i.B as being synonymous with “for the purpose of”. Were it to be interpreted otherwise all domain name registrations would inevitably constitute “blocking registrations” for any later arrival wishing to use the name in question. knightslettings.co.uk
'Fair use’ of a domain name is one factor which may be evidence that that domain name is not an abusive registration (paragraph 4 (a) (i) C of the DRS Policy). In assessing what is and is not fair use, paragraph 4.b. of the DRS Policy may come into play: “Fair use may include sites operated solely in tribute to or in criticism of a person or business” It may be necessary therefore to consider both the Respondent’s intentions at the time of registration of the Domain Name and how the Domain Name has been used thereafter. In his submission and in the content which he has placed on the website at site using the name, the Respondent makes it clear that he has a commercial dispute with the Complainant; the Complainant acknowledges this but has a different take on the facts. The DRS is not an appropriate forum for determining the veracity of such claims by either party. The Decision of the Appeal Panel in DRS 02193 (Guidestar.co.uk) sets out the basis of dealing with "protest sites" where the name used is identical to a name in which the complainee has rights. "Registering as a domain name, the name of another (without any adornment), knowing it to be the name of that other and intending that it should be recognised as the name of that other and without the permission of that other is a high risk activity insofar as the DRS Policy is concerned. Ordinarily, it would be tantamount to impersonating the person whose name it is. Rarely will it be the case that deliberate impersonation of this kind will be acceptable under the DRS Policy. Various decisions under the DRS Policy have condemned such practices including the following: “In the view of the majority of the Panel, in the context of a tribute site, the vice is in selecting a domain name, which is not one's own name, but which to one's knowledge is identical to the name of another, which one has selected precisely because it is the name of that other and for a purpose which is directly related to that other. For a tribute or criticism site, it is not necessary to select the precise name of the person to whom one wishes to pay tribute or criticise. In this case the domain name could have been 'ilovescoobydoo.co.uk', for example. Taking the Domain Name in these circumstances arguably amounts to impersonation of the owner of the name or mark. Substantial numbers of people will have visited the Respondent's website (the Respondent admits to a total of over 37,000 visitors to his site) believing that they were visiting the site of the Complainant, a phenomenon sometimes referred to as 'initial interest confusion'. Prior to the posting of the disclaimer, those visitors might well not have been disabused. The fact that the Respondent was selling official merchandise may have encouraged those visitors in their belief that they were visiting an authorised/licensed site. Notwithstanding the Respondent's denial of any advantage, the Panel is of the view that on the balance of probabilities there must have been an advantage to the Respondent of some kind. Whether or not that 'advantage' has led to financial gain is irrelevant. The question is as to whether the advantage he has taken has been fair.” [Appeal decision DRS 00389 – scoobydoo.co.uk] and: “The Expert should also add that, although there is no evidence to suggest the Respondent's purpose in registering the Domain Name, was one of the three purposes set out in paragraph 3(a)(i) of the Policy, the Expert concludes that there is no obvious reason why the Respondent could possibly be justified in registering the Domain Name for any legitimate purpose. The Domain Name comprises a distinctive made up name. It is identical to the Complainant's trade mark. There is no other UK company using the inventive word which comprises the Complainant's trade mark. In the hands of the Respondent the Domain Name constitutes a threat hanging over the head of the Complainant and there are many obvious and potentially damaging uses to which the Domain Name could be put.” [DRS 00193 – harmankardon.co.uk] knightslettings.co.uk
The fact, if it be a fact, that the Domain Name is being used as part of a URL for a protest site is not of itself indicative of fair use. Paragraph 4.b of the DRS Policy merely indicates that such a use may constitute fair use. Much will depend upon all the surrounding circumstances, including in particular the identity of the domain name itself. A finding of fair use will be much more likely in relation to a ‘-sucks’ domain name e.g. guidestarsucks.co.uk." However, in the instant case, unlike that in DRS 02193, there is no evidence that the Respondent has ever used the name for other than a complaint site. The Expert must, in coming to his decision have regard to the specific wording of the Policy, "Fair use may include sites operated solely in tribute to or in criticism of a person or business." The Expert is drawn to the word "may" which makes it clear that even if the site is "operated solely in criticism of a person or business", it may still be an abusive registration. On the other hand, it may not. The importance is to look at all the circumstances of the case and thereafter for the Expert to determine whether the use of a name meets the very narrow test for criticism sites. In this case, the Expert is concerned that the name chosen by the Respondent is identical to the trading name of the Complainant; no prefix or suffix has been added which might indicate the fact of the protest. However, unlike the situation in DRS 02193, the Respondent is not presently, nor is there any indication that the Respondent has ever, used the site other than "solely in criticism". There are no links to other businesses, no links to other sites, and no advertisements. The site is solely and simply "in criticism" of the Complainant. In these circumstances, the Expert finds that the Domain Name is not an Abusive Registration within the definition of that term in paragraph 1 of the Policy on the basis that its use was fair as defined in paragraph 4b of the Policy. 9. Decision In light of the foregoing findings, namely that whilst the Complainant has rights in respect of a name or mark which is identical to the Domain Name, on the basis that the Respondent is making fair use of the Domain Name as defined in the Policy, the Domain Name, in the hands of the Respondent, is not an Abusive Registration. Accordingly, the Expert rejects the Complaint.
