Nominet UK Dispute Resolution Service

DRS 05731

The Members of the General Committee of The Kennel Club
v
EDOCO LTD

Decision of Independent Expert

1.	PARTIES
Complainant:	The Members of the General Committee of The Kennel Club
Country:		UK
2.	DOMAIN NAME
This complaint concerns the domain name thekennelclub.co.uk (the “Domain Name”).
3.	pROCEDURAL BACKGROUND
3.1	A Complaint in respect of the Domain Name under Nominet UK's Dispute Resolution Service Policy (the “Policy”) was received from the Complainant on 14 May 2008.  Nominet forwarded the Complaint to the Respondent. No Response was received. 
3.2	The dispute was referred for a decision by an Independent Expert following payment by the Complainant of the required fee in accordance with paragraph 5d of Nominet's Procedure for the conduct of proceedings under the Dispute Resolution Service Procedure (the “Procedure”) on 24 June 2008. I was appointed as Independent Expert on 25 June 2008 and confirmed to Nominet that I was independent of the parties and I knew of no other facts or circumstances that might call into question my independence in the eyes of the parties.
4.	Outstanding Formal/Procedural Issues (if any)
4.1	Under Paragraph 5a of the Procedure the Respondent was required to submit a Response to the Complaint to Nominet by 10 June 2008. The Respondent has failed to do so.
4.2	Paragraph 15b of the Procedure provides as follows: "If, in the absence of exceptional circumstances, a Party does not comply with any time period laid down in this Policy or Procedure, the Expert will proceed to a Decision on the Complaint".
4.3	It is the view of the Expert that there are no exceptional circumstances. The proceedings have been communicated to the Respondent and the Respondent has made no attempt to explain its lack of response and there is no evidence to suggest that anything exceptional has occurred.
4.4	The Expert is accordingly authorised under the Procedure to proceed to decide the Complaint. Under paragraph 16a of the Procedure the Expert should reach a decision based on the Parties' submissions (which consists of the Complaint and its Annexes in this case) and the Policy and Procedure. In the absence of any exceptional circumstances the Expert is also entitled to draw such inferences from the Respondent's non-compliance with the Policy or Procedure as he considers appropriate (paragraph 15c of the Procedure).
5.	The Facts
5.1	The filed evidence is unclear as to the exact legal status of the Complainant, although it establishes that "The Kennel Club" provides and sells various goods connected with dogs and has a number of activities promoting the welfare of dogs, and that a body of that name has been in existence since 1873. "The Kennel Club" is also responsible for the organisation of Crufts Dog Show, the world's largest dog show, and other dog-related events. The evidence as filed shows that (whatever its precise legal nature) it is a well known organisation.
5.2	The Complainant has a number of registered trade marks in respect of the mark "The Kennel Club" (for example Community Trade Mark 1649797) and is the proprietor of a number of trade marks which contain the element "The Kennel Club". These are registered in the name of "The Members of the General Committee of The Kennel Club".
5.3	It appears that the Domain Name was, immediately prior to this Complaint, registered in the name of one A. Blackburn. Representatives of the Complainant made enquiry of Nominet seeking to establish an address for A. Blackburn. Shortly thereafter the registrant changed to the present Respondent.
6.	The Parties' contentions
Complainant
6.1	The Complainant says that it has rights in the name "The Kennel Club" as it has traded under this name since 1873 and also has a number of registered trade marks for the mark "The Kennel Club". It says the Domain Name www.thekennelclub.co.uk is identical to its trade mark, apart from the non-distinctive domain name suffix ".co.uk".
6.2	The Complainant claims that Respondent, who has no connection with the Complainant or its business, is not making a legitimate and non-commercial or fair use of the Domain Name, nor does the Domain Name correspond to a name by which the Respondent is or has been commonly known.
6.3	The Complainant says that the Respondent is making a commercial use of the Domain Name by advertising links to third-party commercial sites, some of which are operated by competitors of the Complainant, and that the Respondent will receive funds each time one of these links is clicked on thereby gaining revenue from its registration of the Domain Name.
6.4	The Complainant says that the Domain Name was registered with the sole purpose of distracting trade from legitimate customers of the Kennel Club, by inducing those legitimate customers into thinking that the Domain Name was being operated by or in collaboration with the Kennel Club.
6.5	The Complainant also says that the Respondent's use of the Domain Name has been damaging and abusive to the Complainant by linking through to websites that damage its reputation and good name. 
Respondent
6.6	As indicated above no Response has been filed.
7.	discussion and Findings
General
7.1	A preliminary point arises as to the exact identity of the Complainant. Manifestly a body known to the world as "The Kennel Club" exists and has done so for over 100 years with, on the evidence, very substantial reputation attaching to that body, particularly as the organiser of the Crufts dog show and the keeper of records as to pedigree dogs.  No evidence has been provided of any company or other distinct legal entity corresponding to the Complainant and, as is apparent, the Complainant describes itself as "The Members of the General Committee of The Kennel Club". For present purposes I take the view (no contrary submissions having been made) that the Complainant is either some form of unincorporated  association, or alternatively is a class of individuals, members of that class being entitled to bring an action on behalf of the class. I am accordingly satisfied that the Complainant has locus standi to bring this Complaint and that it, or its individual members, have the benefit of ownership of the rights discussed below.
7.2	The Complainant is required under Clause 2b of the Policy to prove to the Expert on the balance of probabilities that:
(a)	the Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
(b)	the Domain Name, in the hands of the Respondent, is an Abusive Registration.
Complainant's Rights
7.3	“Rights” are defined in the Policy and in the Procedure.  Rights “includes, but is not limited to, rights enforceable under English law.”  The filed evidence establishes that the name "The Kennel Club" has been widely promoted and is well known. The Complainant also has registered trade marks for the name "The Kennel Club". I am satisfied that the Complainant has Rights in the name "The Kennel Club".
7.4	The Domain Name is identical to a name in which the Complainant has rights, the suffix ".co.uk" being ignored for this purpose.
7.5	Accordingly I find that the Complainant does have Rights in respect of a name or mark which is identical or similar to the Domain Name.
Abusive Registration
7.6		Paragraph 1 of the Policy defines “Abusive Registration” as a Domain Name which either:
(a)	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
(b)	has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights.
7.7	It is likely that the Domain Name was chosen because of its association with the Complainant and its products and services. It is difficult to conceive of any other reason for choosing this name, which is distinctive, and none has been suggested.
7.8	It appears to me from the material that is included in the filed evidence that the Domain Name has been "parked" and is used to host a site which I infer is almost certainly automatically generated to contain links to other sites which may contain subject matter broadly similar to that connoted by the Domain Name.  I doubt that the links are manually generated, or that any particular thought or motive has gone into compiling them. As such some of the Complainant's submissions seem to me to ascribe more to the Respondent in terms of deliberately seeking to trade off the Complainant's reputation than was in fact the case. 
7.9	Nevertheless this type of arrangement is one which involves the Respondent seeking commercial gain through revenue from customers clicking on links on the website from visitors who have been brought to the site because the Domain Name connotes the Complainant. The result also is that some of the links are to sites that sell products which compete with the Complainant, or contain material (for example from organisations morally opposed to the breeding of pedigree dogs) which is hostile to the Complainant. I consider the site is thereby taking unfair advantage of the Complainant's Rights.
7.10	In the circumstances, I consider that the Domain Name has been used in a manner which took unfair advantage of the Complainant's Rights. The Domain Name, in the hands of the Respondent, is therefore an Abusive Registration. 
8.	DECISION
Accordingly, I find that the Complainant has Rights in respect of a name or mark which is similar to the Domain Name and that the Domain Name in the hands of the Respondent is an Abusive Registration.  I therefore determine that the Domain Name should be transferred to the Complainant.

Signed ……………………………..
Nick Gardner
26 June 2008