WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Harrods Limited v. Josh Crutchley
Case No. D2007-1848
1. The Parties
The Complainant is Harrods Limited of London, United Kingdom of Great Britain and Northern Ireland (“UK”), represented by DLA Piper UK LLP, UK.
The Respondent is Mr. Josh Crutchley of Telford, UK.
2. The Domain Name and Registrar
The disputed domain name, <harrodstore.com> (the “Domain Name”), is registered with Melbourne IT trading as Internet Names Worldwide (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) in hard copy on December 12, 2007, and by email on December 21, 2007.
The Center transmitted its request for registrar verification to the Registrar by email on December 14, 2007. The Registrar responded by email on December 17, 2007, confirming that it was the registrar and the Respondent was the registrant of the Domain Name, that the Uniform Domain Name Dispute Resolution Policy (the “Policy”) applied to the registration, that the Domain Name would remain locked during this proceeding, and that the registration agreement was in English and contained a provision that the registrant submits to the jurisdiction of the courts as provided in the Policy. The Registrar also provided the contact details in respect of the registration held on its Whois database.
The Center verified that the Complaint satisfied the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, with copy to the Registrar, and the proceedings commenced on December 24, 2007. In accordance with paragraph 5(a) of the Rules, the due date for Response was January 13, 2008. The Response was filed with the Center by email on January 11, 2008.
The Complainant filed a supplemental submission by email on January 22, 2008.
The Center appointed Jonathan Turner as the sole panelist in this matter on January 24, 2008. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules.
Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.
The Respondent filed a supplemental submission by email on February 7, 2008.
4. Procedural rulings
The Response exceeded the 5,000 word limit provided in paragraph 10(b) of the Supplemental Rules. The Panel has decided to waive this default and to admit the Response in its entirety.
The Rules and the Supplemental Rules do not contain any provision entitling the parties to make supplemental filings. The Panel has a discretion to invite the parties to provide further statements and a supplemental submission may be taken to be an invitation to the Panel to exercise this discretion. In this case, the Panel finds it unnecessary to request further information and has proceeded to its Decision without admitting the parties’ supplemental submissions.
5. Factual Background
The Complainant operates the well-known department store, “Harrods”, in Knightsbridge, London. The Complainant has registered “HARRODS” as a trademark in the UK and other countries.
The Domain Name was registered by the Respondent on August 14, 2007, and pointed to a Sedo holding page displaying links to third party websites and the statement “this domain name may be for sale”.
The Complainant’s representative sent a cease and desist letter to the Respondent on September 19, 2007. The Respondent replied by email on September 25, 2007, stating that the Domain Name was not for sale and had not been listed for sale, and claiming that he had never heard of the name “harrods”, never intentionally tried to confuse or pass off and had not acted in bad faith.
The Complainant’s representative responded by email on October 22, 2007, alleging that the Respondent had registered various other domain names incorporating widely-known brands, such as Reebok, Adidas and Nike, and that he was advertising them, as well as the Domain Name, for sale on eBay.
The Respondent replied on November 29, 2007, complaining that the Complainant’s representative’s correspondence had caused him to go into hospital with stress and anxiety and to lose nearly one month’s work, and stating that the business “www.harrodstore.com” was not for sale, that if the Complainant wished to make an offer for the domain name, that was up to the Complainant, and that from the beginning of January, “www.harrodstore.com” would be in search engines and would be an online store based around all kinds of items.
The Domain Name now resolves to a web page carrying a banner displaying “Harrodstore TM” and a further heading “Exercise and Cardio-Vascular Visions”. The web page purports to offer for sale or promote healthy nutritional items and exercise equipment and services, and indicates that the website is under construction. Further pages of the website are largely identical to the home page, but also contain references to a Patricia Harrod, who is described as a fitness instructor.
6. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to the mark “HARRODS” in which it has rights; that the Respondent has no rights or legitimate interests in respect of the Domain Name or any corresponding name; and that the Domain Name was registered and is being used in bad faith.
According to the Complainant, this is a classic example of typo-squatting, in that the Domain Name comprises the phrase “Harrods Store” with the elision of an ‘s’. The Complainant submits that, despite his denial in correspondence, the Respondent must have been aware of the Complainant and registered the Domain Name to take advantage of the Complainant’s reputation.
The Complainant also alleges that the Respondent was offering the Domain Name for sale and exhibits a printout showing the Domain Name advertised as being for sale on eBay’s Belgian website under the heading “High Brand Spelling Mistakes”.
The Complainant also notes that the Respondent did not mention the existence of a Patricia Harrod in the correspondence.
The Respondent contends that the Complainant’s evidence of reputation refers only to the name “Harrods”, and not “Harrod”, and points out that there are other businesses using the name “Harrod”. He claims that he acquired the Domain Name in good faith for the purpose of carrying on an online business at “www.harrodstore.com”, noting that it comprises the words “Harrod” and “Store”. He contends that his intended use of the name “Harrod Store” will not cause any confusion.
The Respondent alleges that he is being bullied because the Complainant has not objected to other websites such as “www.harrodsport.com”. The Respondent reiterates that the Domain Name is not for sale and that he is not using it in bad faith.
The Respondent notes that the Complainant has owned the domain name <harrod-store.com> since 2004. The Respondent alleges that it is inconceivable that the Complainant would have acquired the domain name <harrod-store.com> but not <harrodstore.com>, and that the Whois data must therefore be false. The Respondent also infers that the Complainant registered <harrod-store.com> in bad faith to use against him.
The Respondent quotes a lengthy email which he claims to have sent to the Complainant, explaining that all domain names which he owns are placed with Sedo to see how much traffic and clicks he can gain before forwarding them to his personal website at “www.joshcrutchley.com”. It goes on to say that his domain names are not bought in bad faith or to make money, but only for personal use; that he is a very talented basketball player; and that his mother is in the fitness profession and is now running “www.harrodstore.com” for a fitness business. It also states that he advertised the Domain Name and his other domain names for sale on eBay to see how much they were worth. The Respondent accuses the Complainant of being selective in omitting this email from the correspondence exhibited to the Complaint.
The Respondent maintains that he has never heard of “Harrods”. He offers to purchase the domain name, <harrod-shop.com>, and to point the Domain Name to “www.harrod-shop.com” to make it clear that he is using the name “Harrod” and not “Harrods”.
7. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, to succeed in this proceeding, the Complainant must prove (A) that the Domain Name is identical or confusingly similar to a mark in which it has rights, (B) that the Respondent has no rights or legitimate interests in respect of the Domain Name, and (C) that the Domain Name was registered and is being used in bad faith. These requirements will be considered in turn.
A. Identical or Confusingly Similar to Mark in which Complainant has Rights
It is clear that the Complainant has rights in the mark “HARRODS”.
The Panel considers that the Domain Name is confusingly similar to this mark. Its second level domain consists of this mark together with the word “store”, which is descriptive of the Complainant’s business, with the elision of one of the two letters ‘s’. Confusion could readily occur, in particular as a result of mistyping “HarrodsStore”.
The possible existence of other domain names in the hands of third parties which are confusingly similar to the Complainant’s mark does not alter the fact that this Domain Name is confusingly similar to that mark.
The first requirement of the Policy is satisfied.
B. Rights or Legitimate Interests
In accordance with paragraph 4(c)(i) of the Policy, a respondent may demonstrate that it has rights or legitimate interests in a domain name by evidence of use or demonstrable preparation to use the domain name in connection with a bona fide offering of goods or services before notice of the dispute.
In this case, the Respondent commenced using the Domain Name for a purported fitness website under development only after the Complainant sent a cease and desist letter. There is no evidence of any demonstrable preparation to use the Domain Name for this purpose prior to notice of the dispute. Therefore, even if the Respondent’s website is a genuine, bona fide offering of goods or services, it does not pre-date notice of the dispute and does not suffice to confer a right or legitimate interest in accordance with paragraph 4(c)(i) of the Policy.
The Respondent is not commonly known by the Domain Name or a corresponding name. Nor has he made any legitimate non-commercial or fair use of the Domain Name or a corresponding name.
On the evidence, there is no other basis on which the Respondent could claim a right or legitimate interest in the Domain Name or a corresponding name. The second requirement of the Policy is satisfied.
C. Registered and Used in Bad Faith
The Complainant is probably the most famous department store in the world; it is most unlikely that the Respondent, a resident of the UK, had never heard of it. Furthermore, there is evidence that the Respondent offered the Domain Name for sale on eBay under the heading “High Brand Spelling Mistakes”. As well as being an indication of bad faith in accordance with paragraph 4(b)(i) of the Policy, this evidence contradicts the Respondent’s assertion that he had never heard of the Complainant.
There is also evidence that the Respondent has registered a number of other domain names similar to widely-known brands and offered them for sale on eBay. It appears that the Respondent has also directed such domain names to Sedo web pages containing links which generate click-through commissions. His explanation, that he did this in order to see how much traffic and clicks they generated before directing them to his personal website, is difficult to believe. However, if true, it implies that he registered such domain names in order to take advantage of their similarity to widely-known brands.
The Respondent’s website promotes the fitness training services of a Patricia Harrod. However, he made no mention of this when replying to the Complainant’s cease and desist letter, and he has provided no evidence of any association with any person genuinely called Patricia Harrod. According to his evidence, he claimed that his mother was operating the website, but there is no evidence that her name is “Harrod” and this seems unlikely, since his surname is apparently “Crutchley”.
Viewing the evidence as a whole, the Panel is satisfied that the Respondent registered the Domain Name in order to take advantage of its confusing similarity to the Complainant’s widely-known mark, in particular by selling it for valuable consideration and by obtaining click-through commissions from links on a Sedo page pending sale.
The Panel also considers that the current purported use of the Domain Name for a website offering fitness related goods or services is not genuine, but rather is a bad faith attempt to parry this Complaint, with the intention of selling the Domain Name later. Alternatively, if the Respondent genuinely intends to offer or promote goods and services through this website, the Respondent is seeking in bad faith to take advantage of traffic generated by confusion with the Complainant’s mark.
The Panel concludes that the Domain Name was registered and is being used in bad faith. The third requirement of the Policy is satisfied.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <harrodstore.com>, be transferred to the Complainant.
Dated: February 8, 2008