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	Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Healer v Cotter [2008] DRS 5371 (13 May 2008) URL: http://www.bailii.org/uk/cases/DRS/2008/5371.html Cite as: [2008] DRS 5371

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Mr Martin Healer -v- Justin Cotter Nominet UK Dispute Resolution Service DRS 5371 Decision of Independent Expert

1. PARTIES:

Complainant:

Mr Martin Healer

Vale of Glamorgan

Respondent:

Justin Cotter

Swansea

2. DOMAIN NAME:

martinhealer.co.uk ("the Domain Name").

3. PROCEDURAL BACKGROUND:

This dispute was entered into the Nominet system on 9 January, 2008. A hard copy of the Complaint was received in full by Nominet on 14 January, 2008. On 16 January, 2008 Nominet validated the Complaint and took appropriate steps to notify the Respondent of the Complaint.

On 29 January, 2008 the Response was received by Nominet and on 31 January, 2008 Nominet forwarded it to the Respondent.

On February 8, 2008 the Reply was received by Nominet.

The mediation was delayed because the mediator was on leave and it was subsequently suspended to accommodate the Complainant who was away from the office. It concluded (without a result) on 16 April, 2008.

On 30 April, 2008, the Complainant paid the fee to obtain the expert decision pursuant to paragraph 21 of the procedure for the conduct of proceedings under the Nominet Dispute Resolution Service ("the Procedure").

On May 9, 2008, Tony Willoughby, the undersigned ("the Expert"), was selected as the Expert. He confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as Expert in this case and further confirmed that he knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question his independence and/or impartiality.

4. OUTSTANDING FORMAL/PROCEDURAL ISSUES

None

5. THE FACTS

(1) The Complainant, Martin Healer, is the Managing Director and principal shareholder of Martin Healer Development Services Limited (incorporated 9 August, 2000) and Martin Healer Development Surveys Limited (incorporated 12 October, 1999).

(2) The Respondent acknowledges in the Response that "Martin Healer is the [Complainant's] trading name and style".

(3) In November 2005, the Complainant co-founded a sailing school operating under the name of All Points West Limited.

(4) In January 2006, the sailing school employed the Respondent.

(5) In November 2006, the Respondent resigned and commenced a constructive dismissal claim against the Complainant and his co-founder.

(6) That claim was settled out of Court but the Complainant and the Respondent appear to have fallen out on a wide range of issues and those disputes continue.

(7) On 30 October 2007 the Respondent registered the Domain Name. He has connected the Domain Name to a website indicating clearly that the Martin Healer featured in the Domain Name is the Complainant. The webpage is headed "Martin Healer Unofficial Fan Club" and includes the following passage:

"For the full reasoning regarding the circumstances for this site's existence please feel free to get the facts at http://justincotter.wordpress.com/."

That link leads the visitor to another of the Respondent's websites and a headline suggesting that the Complainant and one or more of his colleagues have set out "to carry out a sustained campaign to try and destroy [the Respondent's] character and reputation".

6. THE PARTIES' CONTENTIONS

The Complainant

The Complainant contends that the Domain Name is identical or similar to his name, Martin Healer, in which he has personal rights and which is the prominent distinctive element of the corporate names of the two companies through which he conducts his main business.

The Complainant contends that the Respondent has no justification for taking his name for the Domain Name and that in the Respondent's hands the Domain Name is an abusive registration.

The essence of the Complainant's claim is that the Domain Name registration is abusive because it is an offensive invasion of his privacy and is likely to cause confusion and commercial damage as well as damage to his reputation. The Complainant contends that the Respondent registered the Domain Name for the purpose of distressing him.

The Complainant contends that the Respondent has used the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated by or otherwise connected with the Complainant. He points out that the site "is dedicated by the Fan Club of Martin Healer" and "Martin Healer Fan Club, who are the publishers of this site…". The Complainant points to the offensive nature of much of the content of the site.

The Complainant contends that the Respondent's "use of this Domain Name in this manner serves to disparage and discredit me, causing confusion and potential commercial damage if this site is viewed by clients or potential clients of my companies".

The Complainant also contends that much of the information is false and inaccurate.

The Complainant points to a number of matters set out in the Respondent's website which he claims are false and/or offensive.

Respondent

The essence of the Respondent's Response is that his use of the Domain Name is a non-commercial fair use of the Domain Name. He says

"I refute Martin Healers claim to have the right to own and use this site. It is an unofficial fan club. As he points out "Martin Healer" is his trading name and style, therefore a website reporting his activities is legitimate, legal and not personal. Mr Healer's attempts to gain control of this site is vexacious and mischievous".

The rest of the Response merely highlights matters of dispute between the parties, matters which are of no relevance to the issue which the Expert has to address.

7. DISCUSSIONS AND FINDINGS

GENERAL

Under paragraph 2 of the Dispute Resolution Service Policy ("the Policy") the Complainant is required to show, on the balance of probabilities, that;

(1) he has rights in respect of a name or mark which is identical or similar to the Domain Name; and

(2) the Domain Name in the hands of the Respondent is an Abusive Registration.


 


Complainant's Rights

The Policy defines 'rights' as including but not limited to "…rights enforceable under English law."

The Complainant does not set out in any detail how his rights in his name, Martin Healer, are derived. However, it is clear from the manner in which his claim is expressed that in his view the Domain Name invades his right to privacy and will cause damage to his commercial reputation and goodwill built up by him and his companies under and by reference to his name (i.e. his common law rights). As indicated above, the Respondent recognises that "Martin Healer" is the Complainant's "trading name and style".

The Expert would have preferred to see more detailed evidence to support the claim to rights, but it is well-established that this is not intended to be a high threshold test, nor under the Policy (as opposed to the UDRP) are the rights restricted to trade mark rights.

Under Article 8 of the Human Rights Convention "Everyone has the right to respect for his private and family life, his home and his correspondence", which indirectly could be said to give rise to a right not to be impersonated.

Moreover, on his webpage the Respondent refers to the Complainant's 'Martin Healer' businesses and the Expert is satisfied on the balance of probabilities that the Complainant and/or his companies, which clearly use his name under licence from him, have unregistered trade mark rights in respect of the name, Martin Healer.

Abusive Registration

Abusive Registration is defined in the Policy as:

"…a domain name which either;
 


(a) was registered or otherwise acquired in the 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

(b) has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant's Rights."

The essential facts are undisputed. The Complainant and the Respondent were at one time closely associated. Around the end of 2006 they fell out. The Expert does not know how or why they fell out initially, but it is apparent from the papers that each continues to harbour grievances against the other. The Expert has been given a fair amount of detail about the current issues, but those issues have absolutely no bearing on the issue as to whether or not the Respondent's adoption and/or use of the Domain Name constitutes an Abusive Registration within the terms of the Policy.

What is clear is that the Respondent registered the Domain Name for no reason other to draw attention to what he regards as being the Complainant's shortcomings. His claim that his webpage deals with the Complainant's successes as well as his failures is disingenuous. The heading, "Martin Healer Unofficial Fan Club", is a euphemism for a gripe/criticism site.

The Expert is satisfied that the intention behind the Respondent's registration of the Complainant's name as a domain name and his use of it for his websites (one being linked to the other) is to cause the Complainant as much disruption and damage as he can. He refers in disparaging terms to the Complainant and his employees.

On the face of it, how could such a use of a person's name without that person's permission be anything other than an Abusive Registration? Visitors to the site connected to the Domain Name are bound to believe that they are visiting a site of or authorised by the person of that name. A substantial proportion of the visitors are likely to be people who are familiar with the person of that name. They are then led to another site calculated to deter anyone from having anything to do with the Complainant.

The Respondent's answer to that question is simply this: Martin Healer is the Complainant's trading name and style, therefore a website reporting his activities by reference to a domain name featuring the name "Martin Healer" is legitimate, legal and not personal. The Respondent refers to paragraph 4(b) of the Policy, which reads "Fair use may include sites operated solely in tribute to or in criticism of a person or business."

In the view of the Expert the Respondent's intention behind his registration and use of the Domain Name is anything but fair and paragraph 4(b) of the Policy is of no assistance to him irrespective of whether the content of the site is fair comment. Impersonation of another can rarely be fair and by taking someone else's name and using it in this way one is effectively impersonating that other. True, the visitor will quickly realise his/her mistake, but by that deceit, the visitor will have been attracted to the site and the Respondent will have achieved his purpose.

Paragraph 4(b) is of no assistance to the Respondent. That paragraph merely says that fair use MAY include criticism sites. A critically important element of that assessment is the domain name, which the respondent has chosen for the purpose. Had the domain name in issue been or , it might have been different, but in this case the Domain Name is the Complainant's trading name and style without any adornment.

The Expert finds that the Domain Name in the hands of the Respondent is an Abusive Registration.

8. DECISION

I direct that the Domain Name be transferred to the Complainant.

……………………………….

Tony Willoughby

May 13, 2008