Before the:
WORLD INTELLECTUAL
PROPERTY ORGANIZATION
ARBITRATION AND
|
(Complainant) |
Meat
and Livestock Commission Winterhill House |
|
-v- |
Disputed
Domain Names: britishmeat.com and
britishmeat.org |
|
(Respondent) |
“OTC” “The
Recipe for BSE” “Administrative
Contact”: David Pearce 7
Lower Rock Gardens |
________________________________
(Rules, para. 3(b))
I. Introduction
[1.] This Complaint is hereby submitted for decision in accordance with the Uniform Domain Name Dispute Resolution Policy (the Policy), approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), approved by ICANN on October 24, 1999 and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules).
II. The
Parties
A. The Complainant
(Rules, para. 3(b)(ii) and (iii))
[2.] The
Complainant in this administrative proceeding is the Meat and Livestock
Commission, a Non-Departmental Public Body established under the Agriculture
Act 1967 and based in
[3.] The Complainant’s contact details are:
Address: Meat
and Livestock Commission,
Telephone: 01908 677577
Fax: 01908 609221
E-mail: michael_fogden@mlc.org.uk
[4.] The Complainant’s authorized representative in this administrative proceeding is:
Address: Stephenson
Harwood, One,
Telephone: 020 7809 2388/ 020 7809 2318
Fax: 020 7606 0822
E-mail: claire.nickolds@shlegal.com/ sunil.gadhia@shlegal.com
[5.] The Complainant’s preferred method of communications directed to the Complainant in this administrative proceeding is:
Electronic-only material
Method: e-mail
Address: claire.nickolds@shlegal.com
Contact: Claire Nickolds
Material including hardcopy
Method: Fax
Fax: 020 7606 0822
Contact: Claire Nickolds
B. The Respondent
(Rules, para. 3(b)(v))
[6.] According to Whois, the registrant of britishmeat.com is OTC and of britishmeat.org is The Recipe for BSE. Neither OTC nor The Recipe for BSE are believed to be legal entities. The Administrative and Technical Contacts for both registrations are David Pearce, 7 Lower Rock Gardens, Brighton BN2 1PG who it is submitted is the “real” registrant of the two domain names. The Complainant believes that OTC and The Recipe for BSE are one and the same entity and this belief is supported by the fact that the contact details that each has provided are identical.
[7.] All information known to the Complainant regarding how to contact the Respondent is as follows:
David Pearce
7 Lower Rock Gardens
BN2 1PG
dave@bltc.net or dave@hedweb.com or dave@bltc.com
Tel: 01273 699055
Fax: 020 7691 9489
[8.] This dispute concerns the domain names identified below:
www.britishmeat.org and www.britishmeat.com
[9.] The registrars with which the domain names are registered are:
Tucows Inc
Tel: 416 535 0123
Fax: 416 531 5584
Email: info@tucows.com
Toll Free International Number: + 800 371 69922
[10.] This dispute is properly within the scope of the Policy and the Administrative Panel has jurisdiction to decide the dispute. The registration agreement, pursuant to which the domain names that are the subject of this Complaint are registered, incorporates the Policy.
V. Factual and Legal Grounds
(Policy, paras. 4(a), (b), (c); Rules, para. 3)
The Complainant
1
The Complainant
is the Meat and Livestock Commission (“MLC”), a Non-Departmental Public Body
established under the Agriculture Act 1967.
It has statutory responsibilities under that Act. It is primarily funded by livestock farmers
and meat processors through the collection of statutory levies on sheep, pigs
and cattle slaughtered for human consumption or exported live. The MLC works with the British meat and
livestock industry to improve its efficiency and competitive position, while
taking into account the needs of consumers.
Its particular functions include undertaking research and development on
ways to improve production efficiency, advertising and promoting the merits of
British red meat, increasing the sales of livestock and livestock products
produced in Great Britain, advising the British and European authorities and
disseminating information and advice to consumers, trade bodies and
farmers. This is necessary because the
meat and livestock industry in
The Complainant’s Websites
2
Pursuant
to its statutory duty and functions, the Complainant operates various websites
which include the following: www.britishmeatretail.com (registered
on 21 February 2002), www.britishmeat-export.com (registered
on 22 July 2001), www.britishmeatfoodservice.com
(registered on 29 June 2000) and www.britishmeatfoodservice.com/product
(registered on 12 September 2000). In
particular, the Complainant has also operated a
website at www.britishmeat.org.uk (registered
in mid/late 1996) for around the past six years. Additionally, amongst others, the Complainant
operates websites at www.mlc.org.uk
(registered on
The
Respondent
3
The registrant of
the britishmeat.com domain name is,
according to a “whois” search, “OTC” which has stated
as its address 7 Lower Rock Gardens,
The domain names britishmeat.com and britishmeat.org are identical or confusingly similar to a trademark
or service mark in which the Complainant has rights (Policy Paragraph 4(a)(i)):
4 In summary, the domain names britishmeat.com and britishmeat.org are identical or confusingly similar to the Complainant’s trade mark “British Meat”. The Complainant has been using and has had rights in “British Meat” as an unregistered trade mark since at least 1977 and as a registered trade mark as of 6 September 1999. Additionally, the Complainant has rights by virtue of its longstanding registration and use of the domain name britishmeat.org.uk. The Complainant registered the domain name britishmeat.org.uk in mid/late 1996 and began using it very shortly thereafter.
5
The Complainant
has been using “British Meat” as an unregistered trade mark since at least 1977
(examples of its use are at Appendix 3).
Since 1991 they have been using the trade mark in a particular format
which comprises of the words “British Meat” in a rectangular logo lined in
white with the words British Meat in white letters, “British” on a red
background and “Meat” on a blue background.
A copy is at Appendix 4. In this
document this is referred to as the “British Meat” trade mark. As of
5.1 use of the trade mark on promotional material including television advertisements, posters, recipe leaflets and brochures and information leaflets published by the Complainant on a wide range of issues concerning the meat industry.
5.2 use of the trade mark on a range of food packaging including fresh meat cuts and ready-made meals.
5.3 use of the trade mark on the Complainant’s educational information websites.
The Complainant uses the registered “British Meat” trade mark on most promotional campaigns that it funds. To illustrate the extent of the Complainant’s use of its “British Meat” trade mark, the Complainant estimates that it has spent more than £180 million over around 12 years on its promotional activities which have carried its “British Meat” trade mark. Examples of the Complainant’s use of its trade mark are referred to in paragraph 9.2 below. It should be emphasised that these are only examples as the extent of the Complainant’s usage of its “British Meat” trade mark has been such that it is impractical to provide anything other than a limited number of examples.
6
The registration
of the “British Meat” trade mark as from September 1999 demonstrates the extent
of the Complainant’s rights. The
Complainant is the owner of the
7 The only way to enunciate the Complainant’s “British Meat” trade mark is “britishmeat”. Phonetically, therefore, the Complainant’s mark and the Respondent’s domain names are identical.
8 Based on the Complainant’s widespread use of the “British Meat” trade mark it is almost certain that the Respondent was well aware of the Complainant’s rights in this trade mark prior to the registration of britishmeat.com in March 1997 and the registration of britishmeat.org in July 1998 (respectively, some six and seven years after the Complainant’s use of its current “British Meat” trade mark began and some twenty and twenty-one years after the Complainant’s first promotional use of a “British Meat” trade mark).
9 In further support of the submission that the Respondent must have been aware of the Complainant’s rights in the “British Meat” trade mark, reference is made to the following that appear on the Respondent’s website:
9.1 A number of pages make specific reference to “British Meat” in a way that suggests they are clearly referring to the Complainant’s trade mark. See the examples at Appendix 6.
9.2 A number of pages seek to mimic the Complainant’s celebrated advertising campaign under the slogan “The Recipe for Love” – see, for example, “British Meat; the recipe for BSE” and “British Meat; the recipe for cancer”. “The Recipe for Love” is also, as of 17 April 1996, a UK registered trade mark 2068928 owned by the Complainant in relation to meat, meat products and prepared foods containing meat (trade mark class 29) (see Appendix 7). “The Recipe for Love” slogan was the theme for a very successful and extensive advertising campaign by the Complainant involving the use of its “British Meat” trade mark and including a number of TV advertisements, leaflets and on pack stickers. Some of the TV ads are copied on the CDs at Appendix 8 and examples of the other items are at Appendix 9. In relation to the TV ads it will be noted that the end frames display the Complainant’s “British Meat” trade mark as indeed do the leaflets and on pack stickers.
10 The Respondent’s mimicking of “the Recipe for Love” shows a high level of awareness of the Complainant’s activities and it is therefore clear that the Respondent was aware of the Complainant’s “British Meat” trade mark, albeit an unregistered trade mark at that time, when it registered the domain names britishmeat.com and britishmeat.org.
11 Further, or alternatively, the Complainant has prior rights in respect of an unregistered trade mark which is identical or similar to britishmeat.com and britishmeat.org by virtue of the Complainant’s longstanding registration and use of its domain name britishmeat.org.uk. The Complainant registered the domain name britishmeat.org.uk in mid/late 1996 and began using it very shortly thereafter, approximately six months prior to the Respondent’s registration of britishmeat.com and approximately two years prior to the Respondent’s registration of britishmeat.org. From late Spring/early Summer 1997 details of the website were included in promotional literature (see example at Appendix 10). Such promotional literature was distributed to large numbers of people and was a medium through which the domain name britishmeat.org.uk became widely associated with the Complainant.
12 The use of the britishmeat.com and britishmeat.org domain names by the Respondent has caused confusion amongst internet users because it is identical or confusingly similar to the Complainant’s “British Meat” trade mark and the Complainant’s domain names britishmeat.org.uk and britishmeat.co.uk. The Complainant refers to paragraph 20.5 below which sets out the evidence of such confusion.
13
The Complainant
accepts that the registration of its trade mark “British Meat” in December 2001
as of
14 For the reasons set out above the britishmeat.com and britishmeat.org domain names are identical or confusingly similar to the Complainant’s “British Meat” trade mark which it has been using since 1991 and the Complainant’s domain names britishmeat.co.uk and britishmeat.org.uk.
The Respondent has no
rights or legitimate interests in respect of the domain names britishmeat.com and britishmeat.org (Policy Paragraph 4(a)(ii))
15
The Respondent
has no rights or legitimate interests in the words “British Meat” and members
of the public would not associate the Respondent with the use of this
mark. In contrast, the Complainant, in
the course of its statutory duties, has need for permanent recourse to use the
expression “British Meat” which would seem entirely natural and normal from the
point of view of the public. As
explained in paragraph 6 above, the Complainant has used and registered the
trade mark “British Meat” for the provision of information and education
services relating to agriculture, food and nutrition. The Respondent is providing information,
albeit misleading and inaccurate information, and therefore is using “British
Meat” in a context that is clearly covered by the Complainant’s trade mark
registration. The Respondent itself has
no distinct right to use the trade mark “British Meat” or the domain names britishmeat.com or britishmeat.org. It
therefore does not have any right or legitimate interest in the above mentioned
domain names. The Complainant refers to
the WIPO decision of Excelentisimo Ayuntamiento de
16 The Respondent’s free right of expression does not, of itself, give it a right or legitimate interest in these specific domain names.
17 There is no relationship between the Respondent and the Complainant. The Respondent is not a licensee of the Complainant and has not obtained authorisation to use the Complainant’s trade mark “British Meat”.
18 Further, the Respondent has no rights or legitimate interests in respect of the domain names in issue because it has deliberately chosen the Complainant’s trade mark “British Meat” for domain names to promote material directly opposed to the Complainant’s work. The Respondent has not used, nor has it made any demonstrable preparations to use, the domain names, or a name corresponding to the domain names, in connection with a bona fide offering of goods or services. The Respondent is not known by the domain names “britishmeat.com” or “britishmeat.org” nor has it acquired any trade mark or service mark rights in “British Meat”. Additionally, the Respondent is not making a legitimate non-commercial or fair use of the domain name, since it is diverting individuals from the Complainant’s websites by misleading them, and tarnishing the Complainant’s trade mark “British Meat”, see paragraph 20 below. For these reasons, the Respondent can not bring itself within any of the circumstances of paragraph 4(c) of the Policy as demonstrating rights to or legitimate interests in the domain names in issue.
19 In addition to the domain names in issue, the Respondent also previously held the domain name britishmeat.co.uk. In November 2002, the Respondent allowed the registration of this domain name to lapse and the Complainant now has this domain name and uses it. If the Respondent had genuine rights or a legitimate interest in britishmeat.com or britishmeat.org it would not have allowed its registration of britishmeat.co.uk to lapse in this manner.
The
domain names britishmeat.com and britishmeat.org have been registered and
are being used in bad faith (Policy Paragraph 4(a)(iii))
20 The following factors evidence that the domain names have been registered and are being used in bad faith:
20.1 britishmeat.com and britishmeat.org have been registered and are being used primarily for the purpose of disrupting the business of the Complainant. The Complainant and the Respondent are “competitors” under the broader meaning assigned to the word “competitor” in Mission Kwa Sizabantu v. Benjamin Rost[3] which states that a competitor is one who acts in opposition to another and the contest does not imply or demand any restricted meaning such as commercial or business competitor. This broader definition was also applied in the case of Estée Lauder Inc v. Estelauder.com, Estelauder.net and Jeff Hanna[4]. The primary objective of the "anti-meat" lobby is to persuade people to stop consuming meat. This is bound by its very nature to disrupt the business of the Complainant because it is diametrically opposed to the Complainant’s statutory duty and functions.
20.2
It is at the very
least reasonable to infer that the Respondent chose britishmeat.com and britishmeat.org
for its “anti-meat” websites because members of the industry looking for the
type of information which the MLC is known for providing (e.g. weekly headline
prices for cattle and pigs in Britain news and research on British meat), and
members of the public looking for information about meat produced in Britain,
are likely to search in search engines for “British meat”. Copies of the results of searches in 5 search
engines for “British meat” are at Appendix 11.
These searches show that the Respondent has ensured that its site will
be clearly identified when someone is looking for a website about British
meat. Copies of the metatags
for various pages of the websites at britishmeat.com and britishmeat.org are at
Appendix 12 and demonstrate that the Respondent has been using the
Complainant’s trade mark “British Meat” to attract Internet users to its websites. Indeed, the metatags
also include the Complainant’s full name.
As a consequence, a significant number of people looking for information
normally provided by the Complainant, or information about meat produced in
20.3 Further, the Respondent is operating its websites in a way calculated to damage or disrupt the business of its competitor, the Complainant. In particular, both of the Respondent’s websites contain hyperlinks to the Complainant’s websites under the banner “whitewashing butchery”. On the Respondent’s website britishmeat.com the hyperlink takes users directly to the home page of the Complainant’s website at meatmatters.com. The hyperlink on the Respondent’s website britishmeat.org takes users directly to the homepage of the Complainant’s website at britishmeat.org.uk. This explicit or implicit suggestion that the Complainant is “white washing butchery” is false, unfair and clearly highly damaging to the Complainant’s business. Copies of the homepages of both of the Respondent’s websites showing the hyperlinks at “white washing butchery” are at Appendix 13.
20.4 As explained in paragraph 4 above, since 1991, the Complainant has been actively using the mark “British Meat” as its badge or signature for promotional activity. Given the Respondent’s high level of awareness of the Complainant’s activities it is highly likely that the Respondent deliberately registered britishmeat.com in March 1997 and britishmeat.org in July 1998, in the full knowledge that the Complainant was extensively using this trade mark, primarily for the purposes of unfairly disrupting the Complainant’s business.
20.5 The Respondent is using the domain names in dispute in a way which has confused people or businesses into believing that the domain names are in some way registered to, operated or authorised by, or otherwise connected with the Complainant. Whilst such confusion may not be intended to be for commercial gain, it demonstrates the extent to which the Respondent is disrupting the business of the Complainant through its use of the domain names britishmeat.com and britishmeat.org. The Complainant is aware of numerous instances of confusion. Examples include:
20.5.1 Journalists looking for the Complainant’s website and coming across the Respondent’s site instead.
20.5.2 An individual from a marketing company working with the Complainant who was confused and surprised at coming across the Respondent’s website.
20.5.3 Numerous instances of members of the public or the agriculture industry complaining to the Complainant about the Respondent’s website which they have come across when looking for the Complainant’s website. Indeed, the Complainant was originally notified of the existence of the Respondent’s website by individuals who had inadvertently come across it when either trying to contact the Complainant or find information on British meat.
20.5.4 A situation in which an employee of the Complainant was showing the Complainant’s website to a client and was through a search engine taken to the Respondent’s website.
20.5.5 Students conducting school projects on matters relating to British meat coming across the Respondent’s site because of the domain name.
20.6 Inevitably, the examples of confusion which the Complainant will be aware of are only the “tip of the iceberg”. There are bound to be many more instances of relevant confusion of which the Complainant is unaware. Such confusion is not surprising given the close association between the Complainant, its trade mark and British meat. The Complainant places particular reliance on the statutory declarations at pages 44 to 179 of Appendix 5 in support of its case that there is such close association.
20.7 As a direct result of the level of consumer and other confusion between the Complainant’s britishmeat.org.uk site and the Respondent’s sites, the Complainant has historically had to concentrate its Internet activities on its meatmatters.com website.
20.8
A further reason
why the Respondent’s domain name is being used in bad faith is that there are
numerous aspects of the contents of the website that are inaccurate or
unfair. Much of the website and the
linked articles are sensationalist and misinform consumers about practices in
the meat industry in
20.8.1 An article titled ‘Slaughterhouse’ by Gail Eisnitz relating to practices in American not British slaughterhouses.
20.8.2 An article titled ‘Veal: A Cruel Meal’ making
allegations about the veal calf industry and referring to rearing practices
that are illegal in the
20.8.3 An article titled ‘Meat – The Recipe for Prostate Cancer’ making inaccurate selective references to a study into the causes of prostate cancer including stating that ‘animal fat may influence the risk for cancer…….’ without providing any scientific evidence for this statement.
20.8.4 A linked article titled ‘How Know Mad Cow? by Professor Richard Lacey that incorrectly states that scrapie in sheep, BSE in cattle and CJD in humans are ‘one and the same disease’.
20.9 The Respondent, in bad faith, is using the websites at britishmeat.com and britishmeat.org to defame, tarnish and dilute the Complainant’s trade mark and the domain names selected by the Respondent incorporate wholesale the Complainant’s trade mark. The inaccurate and unfair reporting of issues involving the meat industry in Britain significantly damage the benefit of the trade mark “British Meat” as used by the Complainant.
20.10
Further, the
Respondent has engaged in a pattern of bad faith registrations aimed at
preventing trade mark owners from reflecting their marks in corresponding
domain names. The Complainant refers to
the WIPO decision in Countryside Alliance
Limited v David Pearce, Anti-Censorship
20.11 Further, or in the alternative, it can be inferred that the Respondent registered the domain names britishmeat.com, britishmeat.org and britishmeat.co.uk to prevent the Complainant from reflecting its trade mark “British Meat” in its domain names. In this regard, it is likely that when the Respondent registered britishmeat.com, britishmeat.org and britishmeat.co.uk, it was aware that the Complainant had registered and used the britishmeat.org.uk name but nevertheless deliberately chose to register the britishmeat.com, britishmeat.org and britishmeat.co.uk names to prevent the Complainant from doing so.
[12.] In accordance with Paragraph 4(i) of the Policy, for the reasons described in Section V above, the Complainant requests the Administrative Panel appointed in this administrative proceeding issue a decision that britishmeat.com and britishmeat.org be transferred to the Complainant.
VII. Administrative Panel
(Rules, para. 3(b)(iv))
[13.] The Complainant elects to have the dispute decided by a single-member Administrative Panel.
[14.] In
accordance with Paragraph 3(b)(xiii) of the Rules, the Complainant will submit,
with respect to any challenges that may be made by the Respondent to a decision
by the Administrative Panel to transfer or cancel the domain names that are the
subject of this Complaint, to the jurisdiction of the courts at the location of
the domain name holder’s address, as shown for the registration of the domain
names in the concerned registrar’s Whois database at the time of the submission
of the Complaint to the Center.
IX. Other Legal Proceedings
(Rules, para. 3(b)(xi))
[15.] Not applicable
[16.] A copy of
this Complaint, together with the cover sheet as prescribed by the Supplemental
Rules, has been sent to the Respondent on
[17.] A copy of
this Complaint, has been sent to the concerned
registrar on
[18.] This Complaint is submitted to the Center in electronic form (except to the extent not available for annexes), and in four (4) sets together with the original.
(Rules, para. 19; Supplemental Rules, Annex D)
[19.] As required
by the Rules and Supplemental Rules, payment in the amount of USD1,500 has been made by cheque.
[20.] The Complainant agrees that its claims and remedies concerning the registration of the domain names, the dispute, or the dispute’s resolution shall be solely against the domain name holder and waives all such claims and remedies against (a) the WIPO Arbitration and Mediation Center and Panelists, except in the case of deliberate wrongdoing, (b) the concerned registrars, (c) the registry administrator, (d) the Internet Corporation for Assigned Names and Numbers, as well as their directors, officers, employees, and agents.
[21.] The Complainant certifies that the information contained in this Complaint is to the best of the Complainant’s knowledge complete and accurate, that this Complaint is not being presented for any improper purpose, such as to harass, and that the assertions in this Complaint are warranted under the Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.
Respectfully submitted,
___________________
Richard Lowe
Marketing Director
Meat and Livestock
Commission
Date: ______________
[1] Case no. D2000 - 0505
[2] Compagnie de Saint Gobain v Com-Union Corp Case no. D2000 – 0020
[3] Case no. D2000 - 0279
[4] Case no. D2000 - 0869
[5] Case No D2001-0862
* * *
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