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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> West Midlands International Airport Ltd v LCS Cars [2005] DRS 02484 (22 June 2005) URL: http://www.bailii.org/uk/cases/DRS/2005/02484.html Cite as: [2005] DRS 02484, [2005] DRS 2484 |
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West Midlands International Airport Ltd v LCS Cars [2005] DRS 02484 (22 JUNE 2005)
Parties:
Complainant:
West Midlands International Airport Ltd
Represented by:
Mr. Jonathan Tarpey
TUI UK Limited
Respondent:
LCS Cars
Disputed Domain Name:
coventryairportcarparking.co.uk
Abbreviations used in this decision:
Abbreviation
Definition
DRS
Nominet UK's Dispute Resolution Service
DRS Policy
Nominet UK's Dispute Resolution Service Policy as applicable after 25/10/04
DRS Procedures
Nominet UK's Dispute Resolution Service Procedures as applicable after 25/10/04
The Expert
Kirsten Houghton
Procedural Background:
(a) The Respondent's addresses by post;
(b) By fax;
(c) By e-mail to the Respondent's email address listed in Nominet's database and
(d) By e-mail to postmaster at the Domain Name (returned undelivered).
"The file is ready to go for decision, but we've spotted an irregularity. We've had to ask for extra copies of the respondent's supporting evidence. He's sent this, but it made us realise that there's a change we never received the evidence first time around due to Oxford postal probleMrs. Before we send the file for expert decision we need to establish whether you received supporting evidence with the response. If you did, all's well and good. If not, we'll need to make it available to you and you might want to make a non-standard reply under 13.b of the DRS Procedures.
….[list of missing documents from the Response]
Please let us know as soon as possible; your file cannot go to the expert until we hear from you."
"Phone note 10/6/05
- J. Tarpey phoned. Yes, he did receive all the evidence with the response. Can (go to (IE)"
Outstanding Formal/Procedural Issues (if any):
The Facts:
(1) The Parties – the Complainant
(2) The Parties - the Respondent
(3) The Complainant's rights
"The Complainant has rights in the domain name because:
(a) It is registered at Companies House under the name West Midlands International Airport Limited and has been since 24th September 1997. A copy of the company details extracted from the Companies House website is attached as Exhibit 1.
(b) West Midlands International Airport Limited trades under the name "Coventry Airport" and has done so since its incorporation. Attached as evidence of this are the following letters:
Exhibit 2 A sample letter incorporating the Coventry Airport letterhead from 2004;
Exhibit 3 A sample letter incorporating the Coventry Airport letterhead from 2003; and
Exhibit 4 A sample letter incorporating the Coventry Airport letterhead from 2002.
In addition, we attach a copy of West Midlands International Airport Limited's (WMIAL) entry on the Data Protection Register confirming its status as a Data Controller (Exhibit 5). The highlighted section indicates that WMIAL recorded the fact that it trades as "Coventry Airport" when the register entry was submitted.
The Complainant advertises as Coventry Airport in Flight International Directory (Exhibit 6) and in the Yellow Pages and at Yell.com. A letter confirming the airport's entry in the Yellow Pages and at Yell.com is found at Exhibit 7.
(c) The Complaint provides services under the name Coventry Airport as evidenced by the publication of a document containing Airport Fees, Charge and Information. The "Airport Fees, Charges and Information" brochures for 1996 to 2001 are attached as Exhibits 8,9,10 and 11."
(a) Relates to difficulties the Complainant had in relation to certain issues relating to the real property of Coventry Airport; the letter of 12th February 2004 is an internal document between two officers of the company (as far as I can tell), the (incomplete) letter of 20th October 2003 is a letter to a neighbour alleging infringement of the runway and the letter of 6th August 2002 is a letter indicating that the Complainant does not have power to sell any part of the land.
(b) Each letter clearly shows the name of the Complainant (in large type) under the name and logo of Coventry Airport.
(4) The Complaint
3. Evidence of Abusive Registration
a. A non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration is 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;
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; or
v. The domain name was registered as a result of a relationship between the Complainant and the Respondent, and the Complainant:
A. has been using the domain name registration exclusively; and
B. paid for the registration and/or renewal of the domain name registration.
b. Failure on the Respondent's part to use the Domain Name for the purposes of e-mail or a web-site is not in itself evidence that the Domain Name is an Abusive Registration.
c. There shall be a presumption of Abusive Registration if the Complainant proves that Respondent has been found to have made an Abusive Registration in three (3) or more Dispute Resolution Service cases in the two (2) years before the Complaint was filed. This presumption can be rebutted (see paragraph 4 (c)).
The Complainant's reasons for believing that the Domain Name in the hands of the Respondent is abusive are that the Domain Name
(a) was primarily registered to stop the Complainant registering it despite its rights in the name;
(b) was primarily registered to unfairly disrupt the Complainant's business; and
(c) was used by the Respondent in a way which already has confused people into thinking that it was controlled by the Complainant.
(5) Blocking Registration
The Respondent registered the Domain Name on 20th February 2004. On 30th March 2004 the Complainant registered its domain name "parkingatcoventryairport.co.uk". The Respondent is a direct commercial competitor of the Complainant and it appears that the name was registered in advance of the Complainant being able to do so with a view to profiting from the name.
On or around 13 December 2003 it was announced by the local media that Thomson fly a part of TUI were planning to commence low cost passenger flights to several European destinations flying from Coventry Airport.
We were aware that the existing car parking arrangements at Coventry Airport were somewhat limited and that the LCS garage site at Oxford Road Service Station may be or interest in this regard.
We contacted the airport by telephone and were advised to speak to Mr Stephen Gray who we believe to be or was then the Commercial Manager. We discussed our proposals briefly with Mr Gray who suggested that we write to the airport and we were given the airport name and address as
West Midlands International Airport Ltd
Dakota House
Coventry Airport
Coventry CV8 3AZ Copy of this letter Annex 1
No formal response was received from West Midlands International Airport Ltd despite follow up phone calls.
In February 2004 it was further announced in the media that West Midlands International Airport Ltd had been purchased by the TUI /Thomsonfly organisation. Also at this time it was made known that this change of ownership would benefit local business/stakeholders as a result of the commencement of low cost flights in terms of employment and business opportunities. At this point it was decided that LCS would develop and market its own car park facility for passengers travelling to and from Coventry Airport.
On 31 March 2004 Thomsonfly commenced its operations from Coventry Airport and a few days later LCS opened its car park facility for passengers flying from the airport. All was well relations between LCS and the Thomsonfly staff were initially very amicable and indeed on May 27 2004 the Thomsonfly Customer Services Director Mr Mike Morton visited the LCS site with a view to increasing car park capacity and designating LCS as a potential overflow site. Although nothing further transpired following this visit relations remained amicable until 27 August 2004….
Market Research
An exercise was originally undertaken to examine how similar offsite car parks were being marketed at other regional airport locations and we found the following website url www.birminghamairportcarparking.com, www.lutonairportcarparking.com and www.stanstedairportparking.co.uk (annex2) which are all operated by independent car park operators. Given the already established naming convention it was appeared reasonable to follow this criteria…
At no time did the respondent register the domain name to prevent West Midlands International Airport Ltd using it. There were and possibly still is many suitable derivatives available to the applicant…
Reasons for these beliefs
a) Blocking registration. LCS did not register the web name in advance of the applicant with a view to profiting from the name at a later date. There is no evidence whatsoever to support this allegation."
(6) Unfair disruption
It is the Complainant's belief that the Domain Name was registered to unfairly disrupt the Complainant's business. This is evidenced by the fact that the domain name chosen is not connected to the trading name of the Respondent and that the Respondent appears to make no independent use of the name. The Respondent advertises under the name of "LCS Cars" and is registered under this name at yell.com (please see Exhibit 12). It appears that the Respondent simply uses the Domain Name to get customers to its site. In addition, we have evidence that the Respondent's use of the business has resulted in unfair disruption to the Complainant's business.
Exhibit 13 is a copy of a letter which was received by the Complainant from one of its passengers travelling through Coventry Airport. In his letter the passenger states that not only was he confused by the LCS Website (as discussed below) but that he was so disappointed by his experience of parking at Coventry Airport that in the future he plans to travel from Birmingham instead. In this case, the actions of the Respondent are not only having a detrimental effect on the official Coventry Airport car parking service (operated from www.parkingatcoventryairport.com) but also on other services operated out of the airport by companies within the Complainant's other business areas (shop sales etc.) and those of the other companies within its group (i.e. flights sold and operated out of the airport by Thomsonfly).
b) The domain name was certainly not registered with any object whatsoever to unfairly disrupt the applicants business. LCS are supportive of the applicants business and indeed in many instances assisted the applicant by offering valet parking - a service not provided by West Midland International Airport Ltd…
b) The domain name chosen was not chosen to unfairly disrupt the applicants business - the name was chosen as it accurately reflects the car parking service being offered by LCS to passengers travelling by car to and from Coventry Airport…
We refer to the applicants exhibit 13 ( Mr Flynn ). We would advise that LCS have not received any written complaint from this passenger further the telephone conversation referred to certainly in no way relates to LCS parking policy. We question why he - Mr Flynn should refer his apparent dissatisfaction to West Midlands International Airport Ltd and not to ourselves. Further it is illogical that his disgruntlement with a third party ( although we have no knowledge of this ) should result in him wishing to penalise West Midlands International Airport Ltd by taking his future custom elsewhere.
(7) Confusion
The Respondent is a direct commercial competitor of the Complainant and is using the Domain Name in a way which is confusing people into believing it is operated or authorised by or otherwise connected with the Complainant.
We have evidence of this in the form of a number of letters from customers. We attach as Exhibit 14 a copy of a letter which a passenger forwarded to us, having originally sent this letter to the Respondent. In the letter the passenger refers to: "the grossly misleading way in which you conduct your business via the Internet by purporting to be the official car parking service for Coventry Airport" In addition she states that: "the fact that you are a private firm/individual acting independently of the Airport Authority should be made crystal clear on your web site and in your correspondence to avoid any possibility of confusion or misunderstanding"
At the time of writing we can confirm that this is not the case and there is no disclaimer on the Domain Name indicating that the Respondent is in no way associated with the Complainant. By way of further evidence we attach Exhibit 15. This refers to a verbal complaint received from a passenger who informed us that she was convinced her booking for parking was for the official Coventry Airport Car Park. We also refer again to Exhibit 14. In this exhibit another customer stated that "the impression we got from LCS Car Hire is that they were at the airport as they advertised their website as www.coventryairportcarparking.co.uk and we were led to believe that we would be parked at the airport".
c) At no time have LCS attempted to confuse customers into the belief that the LCS Car Park facility is operated and owned by the applicant…
The domain name has no direct influence on attracting customers to the LCS website this is achieved by pay per click marketing….
Exhibit 14 We totally refute that any information given on the LCS website can support the statement made by Mrs Hipwell that LCS purport to be 'the official car parking service for Coventry Airport'. Further Mrs Hipwell states that we should make it crystal clear that LCS is a private firm acting independently - well we do both of these things ! It is apparent from Mrs Hipwell's correspondence that she relied on a third party for her parking information and has not actually seen the LCS website which would account for her misunderstandings. Further Mrs Hipwell also states that she arrived late to the airport further compounding her self imposed difficulties.
We refer to exhibit 15 the applicant refers to a third passenger that states she was convinced her booking for parking was for the official Coventry Airport Car Park. We do not know who this passenger was and therefore cannot comment on a unsubstantiated allegation.
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;
"Coventry Airport Car Parking is a new independent facility available from LCS Cars and Self Drive - a family business established for over 25 years within the automotive sector. We are pleased to offer passengers travelling to and from Coventry Airport secure low cost car parking just 2 miles from Coventry Airport. Click here to book now!"
"From LCS Cars
Thank you for booking with coventryairportcarparking.co.uk… For directions to our carpark, please visit our location page [relevant url]."
"Could something be done on his website to inform people that he has absolutely nothing to do with Coventry Airport itself. Does anyone vet these sites when they are given a contract…"
does tend to indicate that he was confused as to whether there was some sort of approval or authorisation of the Respondent by the Complainant, but he, in common with Mrs. Hipwell, does not appear to have appreciated or noticed the statement referred to in Paragraph 42 above.
"Thank you for your email. We are sorry to learn of your experience and reply as follows:
We consider our website to be clear and unambiguous in terms of who we are, what we do and where we are based. The "home" page states that LCS in an independent company, being established for over 25 years. In common with most websites, there are a number of pages available to browse, including a page containing Map and Directions.
However, we sympathise with the chain of events you outlined and in this instance, we are authorising a refund of the £40 parking charge paid to ourselves.
We hope that you will consider using the LCS parking service in the future; should you do so, on production of this email, a discount of £10 will be applied to your account."
(8) General
On 31 March 2004 Thomsonfly commenced its operations from Coventry Airport and a few days later LCS opened its car park facility for passengers flying from the airport. All was well relations between LCS and the Thomsonfly staff were initially very amicable and indeed on May 27 2004 the Thomsonfly Customer Services Director Mr Mike Morton visited the LCS site with a view to increasing car park capacity and designating LCS as a potential overflow site. Although nothing further transpired following this visit relations remained amicable until 27 August 2004 when Mr Morton advised LCS that they were no longer welcome on the airport site and were to be excluded from entering the airport with immediate effect. The reason given were primarily commercial in that Thomsonfly now had adequate car parking facilities in place and that LCS were impacting on car parking profit potential. The relationship between LCS and Thomsonfly staff changed dramatically from this time onwards in that LCS and passengers were subjected to harassment and defamatory remarks in an attempt to dissuade and obstruct the smooth running of the legitimate operation of the LCS Car Park.
Subsequent to this LCS were requested to attend a meeting on 17 September 2004 attended by Mr Adrian Jones and Mr Mike Morton for Thomsonfly and Mr Martin Liggins and Mr Paul Carter for LCS at this meeting LCS were told that the disputed domain name under which LCS had always operated was illegal and that if LCS did not stop using the disputed web name a legal process would commence.
The complainant also refers to a meeting held on the 29 November 2005 . This meeting was convened at the request of LCS to try to make progress and it was agreed mutually to be without prejudice and ought not to have been referred to in this complaint.
In September 2004 it came to the Complainant's attention that the Respondent was the registered owner of the Domain Name "coventryairportcarparking.co.uk" and was using the site to enable users to make bookings for a car parking facility operated by LCS Cars.
On 29th September 2004 the Complainant wrote to the Respondent requesting that the Respondent: cease using the domain name "coventryairportcarparking.co.uk" immediately; transfer the ownership of "coventryairportcarparking.co.uk" to the Complainant and confirm in writing that it had done so. The Complainant also put the Respondent on notice that in the event that the Respondent did not accept this offer, a complaint would be made to Nominet in respect of the Respondent's use of "coventryairportcarparking.co.uk".
On 8th October 2004 the Complainant received a response to its letter from the firm of solicitors, Blythe Liggins, who indicated that they were acting for the Respondent. In their letter Blythe Liggins stated that their client was not willing to transfer the domain name to the Complainant.
On 26th October 2004 the Complainant wrote to Blythe Liggins stating that it did not consider Blythe Liggins' letter to have contained anything to alter its belief that the domain name should be transferred to it. In this letter the Complainant also provided Blythe Liggins and the Respondent with evidence of confusion on the part of its customers which it had been made aware of and complaints which it had received.
On 12th November 2004 Blythe Liggins contacted the Complainant to request a meeting between the parties to discuss the matter in dispute.
On 29th November 2004, Kelly Russ and Adrian Jones (on behalf of the Complainant), Richard Thornton (on behalf of Blythe Liggins) and Martin Liggins and another gentleman (on behalf of the Respondent) attended a meeting at the offices of Coventry Airport. At this meeting the Complainant reiterated its request that the domain name be transferred to it. The Respondent indicated that they would be prepared to consider the transfer of the domain name to the Complainant. However the Respondent made clear that any transfer would be dependent upon the Complainant allowing the Respondent access to their premises for the purposes of dropping off their customers (this is something which the Complainant currently prevents the Respondent from doing on the basis that the Airport operates with limited space). The Complainant made clear it viewed the two issues as separate ones and was not willing to consider any kind of trade off as they considered that it was legally entitled to prohibit the Respondent from accessing its premises and that this should not impact upon any proceedings to be taken with regard to the domain name.
Decision
KIRSTEN HOUGHTON FCIArb.
22nd June 2005
KIRSTEN HOUGHTON FCIArb.
Quadrant Chambers
London EC4Y 1AU