Nominet UK Dispute Resolution Service

DRS Number 02223

Apple Computer Inc -v- CyberBritain Group Ltd

Decision of Independent Expert

1.	Parties 

Complainant:		Apple Computer Inc
Country:		US
		  
Respondent:		CyberBritain Group Ltd
Country:		GB

2.	Domain Name

itunes.co.uk (“the Domain Name”)

3.	Procedural Background

The complaint from Baker & McKenzie on behalf of the Complainant, dated 30 November 2004, was lodged with Nominet both electronically and in hard copy on 1 December 2004. Nominet validated the complaint on 6 December 2004 and on the same day wrote to inform the respondent of the complaint. 

The response from Mr Richard Cohen on behalf of the Respondent was received by Nominet on 4 January 2005. 

The reply from Baker & McKenzie on behalf of the Complainant was received by Nominet on 14 January 2005.

Baker & McKenzie also submitted the following (named ‘C0’ etc. by the Expert) with the complaint:
C0:	Press releases about iTunes, dated from 6 January 2001 to 23 June 2004.
C1:	Copies of trade mark registrations for iTunes in the name of Apple Computer Inc in 26 countries.
C2:	Print-out of the result of the redirection of users from itunes.co.uk to napster.co.uk, dated 5 November 2004.
C3:	E-mails between Ben Cohen of CyberBritain and Darren Wallace of Napster, dated from 14 October 2004 to 19 October 2004.
C4:	UK, US and Community Trade Mark print-outs for iPod in the name of Apple Computer Inc.
C5:	‘Without prejudice’ and open correspondence, dated from 10 November 2004 to 22 November 2004.

Mr Richard Cohen also submitted the following (named ‘R2’ etc. by the Expert) with the response:
R2:	‘Without prejudice’ correspondence omitted by the Complainant, dated from 10 November 2004 to 16 November 2004.
R3:	All open correspondence, dated from 5 November to 22 November 2004.
R4:	A chronology of events.
R5:	Evidence of the use of itunes.co.uk for redirecting users to skipmusic.com on 9 November 2000 (when it was a music download website) and of the failure of itunes.co.uk to resolve through the Domain Name Service.
R6:	A list of 21 domain names registered on the same day as itunes.co.uk.
R7:	A screenshot of the (holding) website at itunes.com up to 17 October 2003.
R8:	Copies of Nominet registrations to CyberBritain for 10 domain names relevant to music and entertainment.

Baker & McKenzie also submitted the following (named ‘C6’ etc. by the Expert) with the reply:
C6:	Press releases currently available on the website at quickquid.com, to which itunes.co.uk now redirects users.
C7:	Transcription of radio interview by Mr Benjamin Cohen of CyberBritain Group Ltd on 7 December 2004.
C8:	Full version of the e-mail from the Respondent on 15 November 2004.
C9:	Various articles and discussions recording public comments by the Respondent on the dispute.
C10:	List of 33 UK domains that the Complainant believes are owned by the Respondent.

The Informal Mediation Stage took place between 19 January 2005 and 2 February 2005. On 2 February 2005 Nominet wrote to both parties stating that it had not been possible to resolve the complaint by informal mediation, and inviting the Complainant to refer the matter for an expert decision by 16 February 2005. Nominet received the fee for an expert decision and on 17 February 2005 invited Claire Milne to act in the case. On 21 February 2005 Claire Milne, the undersigned (“the Expert”), confirmed to Nominet that she knew of no reason why she could not properly accept the invitation to act as expert in this case and further confirmed that she knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question her independence and/or impartiality. Her appointment as Expert in the case was dated 21 February 2005.

4.	Outstanding Formal/Procedural Issues (if any)

The Expert has read, and cited where appropriate, the ‘Without Prejudice’ correspondence submitted by the Complainant and the Respondent.

In an email message dated 18 December 2004 to Mr Hart of Baker and McKenzie, the Respondent expressly said that the Expert appointed by Nominet should not be an Apple Mac user, because in the view of the Respondent there is a “cult” associated with the products of the Complainant, which attract fanatical users (reference: R3). I have already confirmed my independence and impartiality for the purpose of this appointment. Nominet procedures do not let either party vet experts. However, in case either party is interested, I also confirm that I do not own or use, or plan to own or use, any of the products of the Complainant.

5.	The Facts

•	On 24 October 2000 the Complainant applied for iTunes to be a UK trade mark, which was published on 6 December 2000 and registered on 23 March 2001. The Complainant has also registered and used iTunes worldwide (reference: C1).
•	On 7 November 2000 the CyberBritain group registered itunes.co.uk and at least 20 other domain names (reference: R6). In the remainder of that month it registered at least 14 other domain names (reference: C10). Since then it has registered at least 20 other domain names (reference: R8). 
•	From 9 November 2000 to 12 April 2001 itunes.co.uk redirected users to skipmusic.com (reference: R4).
•	On 9 January 2001 the Complainant launched iTunes software download (reference: C0). 
•	From 12 April 2001 to 3 February 2003 itunes.co.uk redirected users to cyberbritain.com (reference: R4). 
•	From 3 February 2003 to 23 September 2004 itunes.co.uk was not resolving through the Domain Name Service (reference: R4).   
•	On 28 April 2003 the Complainant launched iTunes music download in the US (reference: C0).
•	On 5 May 2004 the Respondent found that itunes.co.uk was not resolving (reference: R4).
•	On 15 June 2004 the Complainant launched iTunes music download in the UK (reference: C0). In its first week by this means the Complainant sold 60,000-70,000 songs per day in the UK (reference: C0).
•	From 23 September 2004 to 12 October 2004 itunes.co.uk redirected users to cyberbritain.com (reference: R4). 
•	From 12 October to 3 November 2004 itunes.co.uk redirected users to quickquid.com (reference: R4).
•	On 14 October 2004, Mr Benjamin Cohen of the Respondent sent an email to Napster enquiring “Will you be running an affiliate programme for napster.co.uk as you do for napster.com? We have a lot of traffic for some legacy music domains that we own but no longer operate including itunes.co.uk (originally an MP3 search engine in 1999)” (reference: C2). Napster is a competitor of the Complainant that specialises in music download and the associated software download.
•	On 19 October 2004, Napster replied to Mr Benjamin Cohen, recommending contacting Commission Junction (who would be managing the affiliate programme for Napster). Mr Benjamin Cohen then sent an email to Napster enquiring “Would you be at all interested in the itunes.co.uk domain name. We own it and registered the name two years before Apple launched the ipod.”, and Napster replied that they were not interested (reference: C2).
•	On 3 November 2004 itunes.co.uk started to redirect users to napster.co.uk (reference: R4). Following representations from the Complainant, this “redirection to Napster” was halted on 7 November 2004 (reference: R3). At this time, itunes.co.uk had about 4,000-5,000 unique visitors per day (reference: C8).
•	On 7 November 2004 itunes.co.uk started to redirect users to quickquid.com (reference: R4). This redirection is still in place.
•	On 15 November 2004 the Complainant offered to purchase the Domain Name for $5,000. The offer was refused (reference: C5). 
•	On 17 November 2004 the Respondent offered to sell the Domain Name for £50,000. The offer was refused (reference: C5).
•	On 7 December 2004 the following interview took place (reference: C7): 
Radio5 Live interviewer: “What do you use it [the Domain Name] for?”.
Mr Benjamin Cohen: “Originally it was being used for cyberbritain’s music search engine. That no longer exists. At the moment it just forwards to quickquid.com.”. 
Radio5 Live interviewer: “So you are not really using it.”.
Mr Benjamin Cohen: “No. It’s not a core part of my business…”.
…
Radio5 Live interviewer: “You did not know Apple were going to launch.”.
Mr Benjamin Cohen: “No. We had a generic domain name because……… company trade search of the word TUNES and when you search for a domain name you want to register it suggests alternatives, it often puts an I or an E before an A…”.

6.	Summary of the Parties’ Contentions

The numbering below matches that in section 8.

Complainant

1.	The Complainant has Rights in the name ‘iTunes’ covering software download and music download. The statutory Rights have existed since 23 October 2000; the common law Rights have developed since 9 January 2001. The name ‘iTunes’ “has become extremely well known in the UK and is indelibly linked with the Complainant”.
2.	The offer to sell the Domain Name to a competitor of the Complainant took unfair advantage of the Rights of the Complainant in the name (in that the activities of the Complainant were responsible for the value of the name) and was unfairly detrimental to the Rights of the Complainant (in that a competitor of the Complainant would benefit from the value of the name for which the Complainant was responsible).
3.	The redirection to a competitor of the Complainant took unfair advantage of the Rights of the Complainant in the name (in that the activities of the Complainant were responsible for generating some of the traffic) and was unfairly detrimental to the Rights of the Complainant (in that some of the redirected consumers will have downloaded music from a source other than the one that they had originally expected to use, even if they were not confused by the redirection).
4.	The offer to sell the Domain Name to the Complainant for £50,000 took unfair advantage of the Rights of the Complainant in the name (in that £50,000 is much greater than the out-of-pocket costs of acquiring or using the Domain Name).
5.	If the Respondent retained the Domain Name the Respondent might resume redirections and offers to sell the Domain Name like those above, because the Respondent has claimed the right to do so.

Respondent

1.	The Complainant promoted the purchase of music over the internet but prevented people in the UK from using its service for this purpose until 15 June 2004. This practice made ‘iTunes’ refer in the UK generically to music over the internet, not specifically to the service of the Complainant.
2.	The Complainant has been indulging in illegal pricing practices, by systematically overcharging and illegally segregating the UK market from other European markets in order to overcharge. These practices are the subject of a complaint filed by Which? with the Office of Fair Trading on 15 September 2004. To allow the Complainant to rely on any reputation in ‘iTunes’ would be to reward it for these practices.
3.	The Respondent was accepted as an affiliate of Napster before the redirection to Napster.
4.	For as long as the Complainant indulges in illegal pricing practices the Respondent has the right “to use its website itunes.co.uk to provide UK and European users with lawful downloads of music and tunes over the internet from companies such as Napster, Tesco and/or to offer to sell such website to such companies”.
5.	The offer to sell the Domain Name to the Complainant was made at the request of the Complainant. The Respondent was neutral about selling the Domain Name.
6.	There is ample evidence of substantial and significant non-abusive use of the Domain Name by the Respondent before the redirection to Napster.
7.	The Respondent registered the Domain Name, and various other domain names, with the intention of providing music over the internet. 
8.	The Complainant did not provide music over the internet through itunes.com until 17 October 2003.
9.	The offer to sell the Domain Name to Napster was not intended to be made known to the Complainant and was not part of an attempt to extract or extort money from the Complainant.

7.	Discussion

The Complainant’s Rights in the Name

The Complainant has supplied enough evidence to demonstrate that the Complainant has both statutory and common law Rights in the identical name iTunes. (It is usual to ignore capitalisation and punctuation as these cannot be accurately reproduced in domain names.) 

The Respondent has suggested that ‘iTunes’ means generically ‘music over the internet’ in the UK. I do not accept that this is true now, even if it was true once. For instance, in a search for ‘itunes’ on UK websites the first 50 (largely different) entries appear to apply specifically to the Complainant. A further such search, using the search engine at cyberbritain.com, produces the same result. This indicates that ‘iTunes’ is not generic and indeed could reasonably be claimed to be ‘linked with’ the Complainant, even if not ‘indelibly’ so.

The Respondent has also suggested that the Rights of the Complainant in any name should not be taken into account in this expert decision, owing to the pricing practices of the Complainant. I do not accept this. For instance, car makers did not lose their rights in their names when Which? drew attention to their pricing practices and the Competition Commission supported the Which? position.

The Respondent’s Rights in the Name

The Respondent has provided evidence of having established websites for music search engines. However, the Respondent has provided no evidence of having used ‘itunes.co.uk’ for any purposes other than redirection and attempted sale, or of having used ‘itunes’ as a name in any way not associated with ‘itunes.co.uk’. 

Abusive Registration

The Nominet Dispute Resolution Service Policy (“the Policy”) paragraph 1 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.”

The Complainant has not based the case on clause i. There may have been public expectations about the use of the name ‘iTunes’, at least for software download, at the time of registration of itunes.co.uk. Moreover, ‘itunes.co.uk’ seems unusual among the domain names registered by the Respondent: among those domain names, other than itunes.co.uk none mentions ‘tunes’ and only two (‘ihunt4.co.uk’ and ‘ihunt4porn.co.uk’, in which ‘i’ reads like a personal pronoun) begin with vowels. Incidentally, two (‘newmusicexpress.co.uk’ and ‘newmusicalexpress.co.uk’) incorporate parts of the name of a popular magazine. However, I make no inferences from this.

Paragraph 3(a) of the Policy provides a non-exhaustive list of factors that may be evidence that the Domain Name is an Abusive Registration. Paragraph 4(a) of the Policy sets out a similar list of factors that may be evidence that the Domain Name is not an Abusive Registration. As these lists are non-exhaustive, the overriding consideration is the applicability of the definition of Abusive Registration and, in this particular case, of clause ii, in which a Domain Name “has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights.”. Nonetheless the discussion below is focussed on relevant factors in the lists.

The Arguments for Abusive Registration

3(a)(i)(A): Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily 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.

The evidence presented does not indicate that the Domain Name was registered primarily for these purposes. 

The wording of paragraph 3(a)(i)(A) of the Policy relates only to registration or acquisition of the Domain Name. However, the list of factors in paragraph 3(a) of the Policy is non-exhaustive: the critical question here is whether the Domain Name “has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights.”. There may be cases where an offer to sell a domain name provides evidence of an Abusive Registration. In the current case the offer to sell the Domain Name to the Complainant for a high price and the offer to sell the Domain Name to a competitor of the Complainant need to be examined.

In One-in-a-Million (British Telecommunications plc v. One-in-a-Million Ltd; Ladbroke plc v. same; Sainsbury plc v. same; Virgin Enterprises Ltd v. same; Marks & Spencer plc v. same [1998] F.S.R. 265) the Court held that no matter how the defendants used the domain names, the rights of the plaintiffs would be infringed and there would be likely damage sufficient to support passing-off. The Court of Appeal concurred and noted the threat that the defendants (or, by then, the appellants) would “exploit the goodwill by either trading under the name or equipping another with the name so he could do so.”. The Court of Appeal also commented on the appellants that “They may be silly, but their letters and activities make it clear that they intended to do more than just retain the names. Their purpose was to threaten use and disposal sometimes explicitly and on other occasions implicitly.” (The prices of essentially unused domain names in One-in-a-Million were £25,000, £15,000 and, in the words of the Court, a “less exorbitant” £4,700.) 

In One-in-a-Million the appellants registered the domain names primarily to sell them. However, the threat to “exploit the goodwill” could arise after registration. This was so in Penguin Books Limited -v- Michael Cieplak DRS 00114, where the respondent was a domain name dealer, but the domain name was not identical with a name in which the complainant had rights and the respondent had not expected so many people to be confused by the domain name; nonetheless the asking price for the domain name (£50,000) was found to be evidence of an Abusive Registration.

After a domain name has been registered its value may rise above the out-of-pocket costs of acquisition and use, because of the activities of the registrant. I take the view that a price for the domain name that was based on this value would not necessarily be exorbitant, especially if the primary purpose of those activities was not selling, renting or otherwise transferring the domain name. A price for the domain name that was not based on this value might be high because of the activities of another business; in that situation, the offer to sell the domain name to that business might be seen as taking unfair advantage of the rights of that business in the name, but it could also be seen as just an attempt to make a windfall gain. This would be consistent with the Panel of Appeal in Hanna-Barbera Productions Inc -v- Graeme Hay, DRS 00389, which remarked “The fact that a demand for money may be in excess of the out of pocket expenses of the registrant cannot of itself constitute abusive use of the Domain Name. …Ordinarily, the price put upon a domain name by a registrant is simply evidence of what the registrant regards as being its market value.” 

In the current case, the Respondent has provided no evidence that the price asked from the Complainant (£50,000) was based on the value added by the activities of the Respondent. However, the Respondent made the offer to sell at the request of the Complainant and is not primarily a domain name dealer; the Complainant could have chosen to discuss the price further, by, for example, asking for evidence to justify the price. I conclude that in itself the offer to sell the Domain Name to the Complainant for a high price did not take unfair advantage of the Rights of the Complainant. 

In One-in-a-Million the threat to “exploit the goodwill” was said also to be inherent in “equipping another with the name”. In the current case, the Respondent offered to sell the Domain Name to a competitor of the Complainant. I consider that this took unfair advantage of the Rights of the Complainant: any value in the Domain Name for the competitor would derive more from its association with the well known name of the Complainant than from the little known name of the Respondent. I consider that the offer to sell the Domain Name to the competitor was also unfairly detrimental to the Rights of the Complainant, because if successful it would have equipped a competitor with the name. 

The Respondent has claimed the right to sell the Domain Name to “companies such as Napster, Tesco…”, at least while the Complainant has certain pricing practices. Hence I consider that the offer to sell the Domain Name to a competitor in the past should not be treated as an isolated occurrence; the Respondent might make such offers in the future, and these offers would be unfairly detrimental to the Rights of the Complainant.

3(a)(ii): Circumstances indicating that the Respondent is using the Domain Name in a way in 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 evidence presented does not indicate that people or businesses have been confused by the use of the Domain Name. However, to show abusive registration, the likelihood of confusion may be sufficient. 

The possibility of confusion is implicit in the enquiry to Napster by Mr Benjamin Cohen “Would you be at all interested in the itunes.co.uk domain name. We own it and registered the name two years before Apple launched the ipod.”. As Napster itself had well-established names and domain names, the enquiry implies that the interest of the Domain Name to Napster would lie in this possibility of confusion. (The earlier remark to Napster by Mr Benjamin Cohen “We have a lot of traffic for some legacy music domains that we own but no longer operate including itunes.co.uk…” has as its context stating the value of the Respondent as an affiliate, not stating the value of the Domain Name as a purchase.) Hence although people may not have been confused, I believe that the Respondent saw the possibility of confusion as a potential asset.

There is also a possibility that at the time of the redirection to Napster users who had been intending to buy music from the website of the Complainant bought it from Napster instead. This would be unfairly detrimental to the Rights of the Complainant, as the users would have used the Domain Name in the expectation that it was associated with the Complainant. However, the degree of detriment could well be small, relative to the size of the Complainant: the redirection passed 4,000-5,000 visitors per day to the Napster site for 4 days, and the site of the Complainant had been selling 60,000-70,000 songs per day during its first week.

The Respondent was interested in the Napster affiliate programme. As the Napster website for the UK indicates, this programme allows website owners to “Earn money by sending your visitors to Napster”. It rewards affiliates for sending to the Napster website visitors who then join Napster. The Respondent would have benefited from the redirection by making the Domain Name more desirable as a potential purchase or by being paid for visitors to the Napster website. If visitors used the Domain Name in the expectation that it was associated with the Complainant, these benefits to the Respondent took unfair advantage of the Rights of the Complainant.

In other cases also, such as Net2Phone Inc -v- Alex Wilkinson, DRS 02145, Ebuyer (UK) Ltd -v- Web Auction Ltd, DRS 00347, and Turkcell Iletisim Hizmetleri A.S. -v- Zafer Metin Atas, DRS 00286, a redirection to a competitor of the complainant has been found to be evidence for an Abusive Registration.

The Respondent has claimed the right to resume redirecting visitors to websites offering “lawful downloads of music and tunes over the internet from companies such as Napster, Tesco…”, at least while the Complainant has certain pricing practices. Redirection would mean that some business originally intended for the Complainant would be likely to go elsewhere. Furthermore, if the company receiving redirected traffic were one that does not specialise exclusively in music downloads, such as Tesco, some people would be very likely to get confused and imagine that they were being redirected to a franchise operation for the Complainant. All this would be unfairly detrimental to the Rights of the Complainant.

Thus I am led by the actions and statements of the Respondent to suppose that if the Respondent retained the Domain Name people could well be confused and business could well be lost by the Complainant in a manner that took unfair advantage of, or was unfairly detrimental to, the Rights of the Complainant.  

The Arguments against Abusive Registration

4(a)(i)(A): Before being aware of the Complainant’s cause for complaint (not necessarily the ‘complaint’ under the DRS), the Respondent has used or made demonstrable preparations to use the Domain Name or a Domain Name which is similar to the Domain Name in connection with a genuine offering of goods or services. 

Redirecting users from one website to another is still a well known way of increasing exposure to potential customers (although it is now considerably less important than it once was, as internet search capabilities have improved greatly). Hence the use of the Domain Name for redirection can be used as evidence that the Domain Name is or was in use. As far as I can tell from the evidence presented, with the exception of the redirection to Napster, these redirections do not appear to have taken unfair advantage of, or to have been unfairly detrimental to, the Rights of the Complainant: the websites to which they sent users either do not provide music download or provided music download at a time when the Complainant did not do so.

Shortly before the redirection to Napster, the Domain Name was out of use for between 5 and 20 months without the Respondent noticing, so the Domain Name could hardly have been crucial to the business of the Respondent. (Although 5 months is suggested in R4, the Domain Name was detagged for 20 months; during that period no URI formed from it would find a server, and browser bookmarks set up to refer to it would have the redirection destination, such as ‘cyberbritain.com/entertainment’, not the Domain Name, in the URI.) In fact Mr Benjamin Cohen told Napster “We …no longer operate … itunes.co.uk…” and told a Radio 5 Live interviewer that the Domain Name was not really used or a core part of the business. 

I conclude that by the time of the redirection to Napster there had been no substantial or significant use of the Domain Name for at least 20 months. 

8.	Findings about the Parties’ Contentions

The numbering below matches that in section 6.

Complainant

1.	I accept that the Complainant has statutory and common law Rights in the name ‘iTunes’ covering software download and music download that are sufficient for this case, even if ‘indelible’ is too strong a word.
2.	I accept that the offer to sell the Domain Name to a competitor of the Complainant took unfair advantage of the Rights of the Complainant in the name and was unfairly detrimental to the Rights of the Complainant.
3.	I accept that the redirection to a competitor took unfair advantage of the Rights of the Complainant in the name and was unfairly detrimental to the Rights of the Complainant; however, the detriment may not have been significant, as during the redirection the volume of traffic was low relative to that experienced by the Complainant.
4.	I do not accept that the offer to sell the Domain Name to the Complainant for £50,000 in itself took unfair advantage of the Rights of the Complainant in the name.
5.	I accept that if the Respondent retained the Domain Name the Respondent might resume redirections and offers to sell the Domain Name like those above.

Respondent

1.	I do not accept that ‘iTunes’ refers in the UK generically to music over the internet.
2.	I regard as irrelevant to this case the effect of the pricing practices of the Complainant on the reputation of ‘iTunes’.
3.	I accept that the Respondent was accepted as an affiliate of Napster before the redirection to Napster.
4.	I note the enthusiasm of the Respondent for using the Domain Name to assist competitors of the Complainant and thereby to counter the pricing practices of the Complainant as described by Which?, but in the light of this I do not understand why the Respondent was willing to sell the Domain Name to the Complainant after Which? issued its description on 15 September 2004. 
5.	I accept that the offer to sell the Domain Name to the Complainant was made at the request of the Complainant, but I question whether the Respondent was neutral about selling the Domain Name, as the Respondent had just offered to sell the Domain Name to a competitor of the Complainant.
6.	I accept that the use of the Domain Name by the Respondent before the redirection to Napster may not have been abusive, but I do not accept that the use was substantial or significant.
7.	I accept that the Respondent registered the Domain Name, and various other domain names, with the intention of providing music over the internet. 
8.	I accept that the Complainant did not provide music over the internet through itunes.com until 17 October 2003. 
9.	I accept that the offer to sell the Domain Name to Napster was not intended to be made known to the Complainant and was not part of an attempt to extract or extort money from the Complainant.

9.	Remedy

The abuse to which a remedy is sought occurred some months ago and was ended at the request of the Complainant. If the Respondent were allowed continued use of the Domain Name and further abuse occurred, the Complainant would then need to lodge a new complaint. The Respondent has threatened to resume redirections, and offers to sell the Domain Name, like those constituting the abuse. I therefore consider that the remedy must entail the cancellation, suspension or transfer of the Domain Name. In this case I see no merit in cancellation or suspension, which might confuse users expecting to find the website of the Complainant (as in France and Germany).

10.	Decision

I find that the Complainant has Rights in a name or mark which is similar to the Domain Name. On the balance of probabilities, I find that the Domain Name, in the hands of the Respondent, is an Abusive Registration on the grounds of its use in a manner taking unfair advantage of, and being unfairly detrimental to, the Rights of the Complainant. I direct that the Domain Name be transferred to the Complainant.

Claire Milne								10 March 2005