Registration of 'fayed.co.uk' held to be abusive

United Kingdom
In Harrods Ltd v Fayed (Case DRS 06783, March 23 2009), a Nominet expert has seen through an attempt by the registrant of the domain name 'fayed.co.uk' to evade the attentions of Mohamed Al Fayed’s solicitors and avoid sanction under Nominet's Dispute Resolution Service (DRS) Policy by transferring the domain name to an individual who did not actually exist. The decision provides a less than subtle example of what the expert called:

a common subterfuge adopted by some discreditable members of the 'domainer' community… to frustrate action by legitimate rights holders or to evade normal business regulation and taxes.” 

The dispute was given extra spice by the fact that the domainer harboured a deep antipathy for Al Fayed and his conspiracy theories.
 
The complaint was submitted by solicitors for Harrods Ltd, for and on behalf of Al Fayed. Harrods owns Community trademark registrations for MOHAMED AL FAYED and DODI FAYED. Al Fayed owns a website attached to the domain name 'alfayed.com', also accessible via 'alfayed.co.uk'. 

On January 23 2009 Al Fayed's solicitors sent a letter before action to Chris Holland and Ronnie Davies, trading as Dropcatcher, in whose names 'fayed.co.uk' was registered. At the time of the letter, the domain name resolved to a sponsored links page for various 'Harrods', 'Mohamed Al Fayed', 'Dodi Fayed' and 'Diana'-related sites. On January 27 2009 Holland replied by email in the following terms:

"Dear Katherine,

Thank you for your email and letter regarding the domain name 'fayed.co.uk'. Although we would have loved to have been able to simply donate this domain to your truly dreadful and odious client, I regret to inform you that we have recently sold this domain.

Best regards,

Chris Holland"

A WHOIS search showed an apparent transfer earlier that day to “Ahmed Fayed” at a PO box postal address in Manilva (Spain), without telephone, fax or email contact details. The website hosted at the domain name was updated to an active website of sponsored links under the headings 'Egyptian child molesters', 'Egyptian fraudsters' and 'Egyptian conspiracy theorists'.
 
In the expert’s opinion, it was certainly conceivable that the domain name could legitimately be owned and operated by a party independent of Al Fayed in a manner which would not make it an abusive registration. However, Al Fayed had made compelling arguments that the nominal respondent in this case had no such legitimate claim or intentions. The expert thus felt it desirable to offer the nominal respondent a clear opportunity to rebut Al Fayed's arguments, specifically about his alleged identity. However, the respondent failed to produce any documentary evidence to substantiate his identity.

Therefore. the expert was persuaded that on the balance of probability, the nominal respondent was not a real person, but a false identity created by the previous registrant. This alone constituted abusive registration under the DRS. The abuse was compounded by the sponsored links featured on Holland's website, evidence of which the respondent had also failed to rebut. Additionally, the expert held that while it was not necessary for the respondent, or anyone else, to like Al Fayed, the headings on the site were obviously intended by Holland to be inflammatory and derogatory, following his gratuitously offensive email response to Al Fayed's letter. The website was plainly “abusive” in the ordinary meaning of the word or, as the expert put it, “grossly offensive and inappropriate; juvenile to say the least - certainly not the action of any legitimate or reputable website operator”.

The expert thus ordered that the domain name 'fayed.co.uk' be transferred to Al Fayed.
 
Such cases give domainers (ie, those who make money by selling, parking and developing domain names) a bad name. While the practices of domainers do not automatically breach the Nominet Policy, “there is no free for all”, as the expert in this decision made clear. Brand owners need to be aware of this sort of tactic and ensure that they are equipped to deal with it.

Bratin Roy, McDermott Will & Emery UK LLP, London

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