Mohsan -v- Bond [2003] DRS 693 (8 January 2003)

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The complaint was entered into Nominet’s system on 4 November 2002. Nominet validated the complaint and informed the Respondent on 15 November 2002, noting that the Dispute Resolution Service had been invoked and that the Respondent had 15 working days (until 9 December 2002) to submit a Response. No Response was received. On 10 December 2002 the Complainant was invited to pay the fee to obtain an Expert Decision pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service Policy (“the Policy”). The fee was duly paid on 13 December 2002.

On 13 December 2002 Nominet invited me to provide a decision in this case and, following confirmation to Nominet that I knew of no reason why I could not properly accept the invitation to act in this case and of no matters which ought to be drawn to the attention of the parties which might appear to call into question my independence and/or impartiality, Nominet duly appointed me as Expert with effect from 20 December 2002.

The Complainant is an individual. He is the Managing Director of Time Group Limited, a company carrying on business in the UK as a computer manufacturer and retailer.

The Respondent’s name suggests that he is also an individual, though I have not received any representations from him and the Complainant says that there is reason to doubt his identity or even his existence (see the Complaint, set out below).

The Nominet WHOIS search with which I have been provided shows that the Domain Name was registered on behalf of the Respondent on 4th February 2001.

There is currently no website accessible under the URL http://www.tahirmohsan.co.uk; though there are a few print-outs in evidence before me of some of the pages that have been accessible under the Domain Name.

The Complainant requests that the Domain Name be transferred to him on the basis of the following submissions:

“1. The complainant's name is Tahir Mohsan. That name is not a common one and in any event it is self-evidently an important part of the Complainant's identity. He is well-known by that name both in his own right and as the Managing Director of Time Group Limited, the well-known computer manufacturer and retailer.
2. Accordingly the Complainant asserts that he has Rights in respect of a name that is identical to the domain name www.tahirmohsan.co.uk which is the subject of this complaint (`the Domain Name'), within the meaning of Para 2(a)(i) of the Nominet Dispute Resolution Service Policy.
3. It is furthermore asserted that, for the reasons set out below, the Domain Name www.tahirmohsan.co.uk, in the hands of the Respondent, is an Abusive Registration with the meaning of Para 1(i) and/or 1(ii) of the said Policy, and that Para 2(a)(ii) of the said Policy is therefore satisfied.
4. The particular grounds relied on are as follows:
4.1. the Respondent has given false contact details to you (para 3(iv) of the Policy).
4.2 the Respondent is using the Domain name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant (Para 3(ii) of the Policy).
4.3. the Respondent has registered the Domain Name primarily for the purpose of unfairly disrupting the business of the Complainant (Para 3(i)(C) of the Policy).
5. For the avoidance of doubt, Nominet is asked to note that the Domain Name is being used without the Complainant's authorisation (should any question arise under Para 4(b) of the Policy).General
6. By way of background, the Domain Name was, according to a WHOIS search, registered on 4 February 2001. It was registered through Fasthosts Internet Limited, a UK-based ISP, in the name of a Mr `Greg Bond'. The registration details provided to Fasthosts by the Respondent were false (see further below).
7. The website has been used and is being used currently to point to an Internet bulletin board known variously as `Time Group Limited Message Forums' and `Tahirmohsan.co.uk Message Forums'. This bulletin board facility has been and is hosted by an American ISP, Everyone.net.Inc. Initially the forums were accessed via a hyperlink on the website (the principal function of the www.tahirmohsan.co.uk home page appeared to be to provide this hyperlink); latterly, the browser has been automatically re-directed to the front page of the bulletin board. A print-out of the front page as it currently appears is appended hereto.
8. The bulletin board itself was registered with Everyone.net on 31 January 2001 under the names` Greg South' and `Keith Bond'. Again, false registration details were used, as well as the email address `xgtg@timeaftertime.co.uk' which is the same as one given with the Domain Name registration through Fasthosts Internet.
9. Both the Website and the forums homepage were adorned with copies of what purported to be advertisements for Time Computers, using the Time corporate logo, which reinforced the impression that this was a discussion forum that was operated or officially endorsed by Time Computers. These advertisements' were subsequently removed and are not at present used in connection with the site or the bulletin board.
10. Contributors to the bulletin board have been purported current or past employees of the Second Claimant. Through the course of much of last year a large number of messages were posted, some of them offensive and/or scandalous and/or defamatory (despite the fact that the forums purported to be moderated by person(s) calling themselves `XGTG' and `Keithbond' amongst others).
11. In the early part of this year it appeared that the website had become dormant: for a time visitors to the site were automatically re-directed to the homepage of the charitable organisation The Samaritans. However, more recently the bulletin board has become active again. It will be seen that at the end of June 2002 contributors started to post messages to the forum (see Topic: `Anybody There?' included within the list of topics on the forums homepage).
12. It is submitted that there is something inherently offensive about the appropriation of an individual's name for the purposes of operating a website of this kind. It is an invasion of the Complainant's privacy in the sense that an individual's name is an aspect of his identity and the right to retain a measure of control over one's name is an important aspect of any individual's sense of identity. Conduct of this kind interferes with the Complainant's sense of identity and his `right of personality'. Even if it were legitimate to operate a website of this kind, which is disputed, it is submitted that there is no justification for allowing the Respondent to use the Complainant's name as the Domain Name through which such a site is accessed.
False details
13. The Respondent has given false details in the registration of the Domain Name, no doubt in an attempt to avoid detection and place himself beyond the reach of the Complainant. By a Court Order of 23 May 2001 (copy appended hereto) Fasthosts Internet was ordered to provide information in respect of the identity or that would assist in the identification of the operator of the website www.tahirmohsan.co.uk.
14. By letter of 30 May 2001 (appended) Fasthosts provided information in its possession as to the registrant of the Domain Name. On investigation, it transpired that the company name, the address, the telephone, the fax numbers and, so far as the Complainant is aware, the individual registrant's name - Greg Bond - were all false. Although the postcode given, M60 9EA, is a genuine Manchester postcode, it does not resolve to the address given, or anything like it (there is no Southfield Street in the Manchester area), but to an address in Water Street.
15. The Complainant again contacted Fasthosts which provided further information by email (appended) consisting of the credit card details of the person who paid for the registration of the site. As a result of further investigation, and with the co-operation of the issuer of the credit card, the Complainant has ascertained that the credit card was held by an ex-employee of Time Computers whose details are as follows: Mr Darren Smith 112 Lydgate Burnley BB102DU.
16. It should be noted that Mr Smith has denied all responsibility for the website. Whoever is responsible, it is submitted that this registration is plainly in contravention of Para 3(a)(iv) of the Nominet Policy.
Confusion
17. Paragraphs 1,9 and 10 above are repeated. There are can be no doubt that to some visitors of the website, especially those who are not regular contributors, there has been and is a risk that the forum will appear to be an `official' Time Computers forum, or at least operated with the authority or acquiescence of the Complainant or his company .As the Chief Executive [Managing Director?] of Time Computers Tahir Mohsan's connection with the company and with the computer industry is well known.
18. Not all of the content of the contributions to the site is scandalous, offensive or defamatory, and only a visitor who was familiar with certain of the previous postings, or who read offensive postings available at the time of his visit, would be likely to be suspicious about the origin of the site and who was behind it. It is submitted that any not insubstantial risk of confusion is unacceptable and indicates that the Domain Name is an abusive registration.
Unfair disruption of business
19. The existence of the website/bulletin board operated under the Domain Name and the ongoing use of the Domain Name for these purposes is upsetting and disruptive for the Complainant and his business. It affects the morale of the management, some of whom will no doubt feel under the constant threat of being criticised, and it will inevitably have had an adverse effect on the morale and/or working atmosphere of employees generally. It unfairly undermines the relationship of trust and confidence that must exist between the employer and workforce of any company, large or small.
20. Furthermore, the site has in the past been used for the dissemination of seriously offensive and defamatory statements in the form of postings to the bulletin board.21. Examples of some of these statements are as follows:
a) "Dr Apocalypse CAN'T GET A PENNY FROM PAKIS... Tahir and Tariq [the Complainant's brother] are in so much financial bother, that they lowered themselves to stealing from ex-employees... I have about as much chance of getting money as Time does of avoiding Bankruptcy!!...";
b) "Ex Time quite close to Time, and am doing my best to steer customers away from them... DON'T TRUST THEM THEY ARE ALL LIARS!!!!!!".
22. There can obviously be no guarantee, and the Complainant reasonably fears, that statements of this nature might be repeated in the future. As stated above, the site was dormant for a while, and whilst its present contents are not of the same nature as the above comments, new entries stating "Lets get this started back up?? and "This is great. I just decided to check this one out as I was bored. I can't believe it's up and running again. How come?..." seem to suggest that more extreme and scandalous contributions are likely to appear sooner or later.
23. Some of the more defamatory postings are now the subject of a libel action which has been brought by the Complainant and Time Group Limited against Darren Smith. Those proceedings are currently ongoing. It should be stressed, however, that these proceedings were brought in respect of the defamatory contents of certain of the messages posted on the bulletin board in the past rather than in connection with the unlawful or unfair use of the Domain Name per se. They are otherwise unrelated to the present complaint and do not therefore constitute "legal proceedings... in connection with the Domain Name which is the subject of the complaint" within Para 3(b)(vii) of the Procedure.”
The Complainant requests that the Domain Name be transferred.

Paragraph 2 of the Policy requires that, in order for the Complainant to succeed, he must prove to the Expert, on the balance of probabilities, both that he has Rights in respect of a name or mark which is identical or similar to the Domain Name; and that the Domain Name, in the hands of the Respondent, is an Abusive Registration as defined in Paragraph 1 of the Policy.
However, the proviso to paragraph 4(b) of the Policy, referred to by the Complainant, reverses the burden of proof in relation to ‘Abusive Registration’ where:
i. the Domain Name (not including the first and second level suffixes) is identical to the name in which the Complainant asserts Rights, without any addition; and
ii. the Respondent is using or intends to use the Domain Name for the purposes of a tribute or criticism site without the Complainant's authorisation.
Recognising that the alphanumeric characters available for use within internet domain names do not include spaces and thus “TAHIR MOHSAN.CO.UK” cannot be registered, I consider that “Tahirmohsan” is ‘identical to the name in which the Complainant asserts Rights, without any addition’ as required by paragraph 4(b)(i). The Complainant has confirmed that he did not authorise the Respondent’s use of the Domain Name. This only leaves the question of whether the Respondent ‘is using or intends to use the Domain Name for the purposes of a tribute or criticism site’ as required by paragraph 4(b)(ii).
Examples of the historical use which has been made of the Domain Name suggest that it was indeed used for the purposes of a site which attracted criticism of both the Complainant (“Dr Apocalypse CAN'T GET A PENNY FROM PAKIS ... Tahir and Tariq are in so much financial bother, that they lowered themselves to stealing from ex-employees... I have about as much chance of getting money as Time does of avoiding Bankruptcy!!...”) and his business (“Ex Time quite close to Time, and am doing my best to steer customers away from them... DON'T TRUST THEM THEY ARE ALL LIARS!!!!!!”). As the Respondent has failed to submit a Response, I am required under paragraph 15(c) of the Procedure to draw such inferences from the Respondent’s non-compliance as I consider appropriate, absent exceptional circumstances. The inference I draw from the above material is that the Respondent intended to use, has used and intends to use the Domain Name for the purposes of a criticism site.
Accordingly whilst the Complainant bears the burden of establishing that he has the requisite Rights, the Respondent bears the burden of proof of establishing that the Domain Name is not an Abusive Registration. This is in keeping with the approach taken by the Nominet DRS Appeal Panel in ScoobyDoo.co.uk (DRS 00389, 23 August 2002):
“Moreover, the Panel is unanimous in the view that the purpose of paragraph 4.b is to dissuade people from taking the name of another without adornment and without permission and with a view to making direct reference to that person whether for tribute or criticism. The clear meaning of the rule is that such a registration is prima facie abusive, unless the Respondent can show otherwise. Accordingly, the burden is on the Respondent to show that the Domain Name is not an Abusive Registration.”

I have also considered what the Panel in Scooby Doo had to say about the word ‘solely’ in paragraph 4(b), as opposed to ‘partial’ tribute or criticism sites. Whilst the Complainant in this Complaint has conceded that “not all of the content of the contributions to the site is scandalous, offensive or defamatory”, I am unable on the scant evidence before me to conclude that the site in question in this Decision was used for any purpose other than criticism or tributes of the Complainant or the way in which he conducts his business. My conclusion might have been different had the Respondent asserted and demonstrated that when the Domain Name was used it was used for other purposes.
Complainant’s Rights

The Complainant’s case in relation to ownership of rights is straightforward: “Tahir Mohsan” is his own personal name and it is not a common one. It is said to be a well-known and important part of the Complainant's identity. This is the sum total of the ‘evidence’ of Rights before me.
As far as I am aware this is the first Nominet DRS decision involving Rights in a personal name (as opposed to a trading name), and only the second decision in a case brought by an Complainant who is an individual.
The definition of “Rights” under paragraph 1 of the Policy provides that they “include, but [are] not limited to rights enforceable under English law. However, a Complainant will be unable to rely on rights which in a name or term which is wholly descriptive of the Complainant’s business”. I have no hesitation in concluding that this definition is wide enough to encompass ‘Rights’ in personal names. Paragraph 1 does not introduce a requirement that the Complainant must be a ‘business’ – see for example paragraph 4(b) of the Policy which clearly implies that a Complainant may be either a person or a business.
The question then arises whether the Complainant in this case has discharged the burden of proving that he owns such Rights in his name. But what is the test? Is every natural person born with Rights in his or her name? If not, what must he or she demonstrate in order to establish ownership of Rights? My conclusion is that the Complainant’s uncontroverted claims (i) that his name is Tahir Mohsan and (ii) that his name is uncommon in the United Kingdom are together sufficient for him to establish Rights in his name.
I do not believe that this will, as might first appear to be the case, ‘open the floodgates’ to a large number of DRS complaints alleging infringement of (as the present Complainant puts it) a person’s “sense of identity” or “right of personality”, as there are at least two safeguards against this that are readily available to Respondents in such cases:
First, it is simple for Respondents to show, if it is indeed the case, that the name in which Rights are claimed is common in the United Kingdom, for example using the online Directory Enquiries service provided by British Telecom on its website http://www.bt.com/directory-enquiries/dq_home.jsp. Telephone directory searches are commonly used to determine whether a name is common or distinctive by the trade mark examiners at the UK Trade Mark Registry (see http://www.patent.gov.uk/tm/reference/workman/chapt6/sec3(12).pdf).
Second, paragraph 4(a)(B) protects a Respondent who has “been commonly known by the name”. This will provide some comfort to individuals with uncommon names who register a domain name corresponding to their own name, that they will not be usurped as a matter of course under the DRS by one of the few other individuals with the same name.
I have already concluded in the previous section that that the name Tahir Mohsan is for present purposes identical to the Domain Name (ignoring, as I am required to do, the first and second level suffixes).

As I have decided that the Respondent bears the burden of proof on the issue of Abusive Registration, the fact that he has failed to submit either a Response or any evidence logically leads to the conclusion that he has failed to demonstrate that the domain name is not an Abusive Registration. This may seem harsh but in my view it follows inexorably from the passage in the decision of the Appeal Panel in ScoobyDoo.co.uk, which I will set out once more below:

“Moreover, the Panel is unanimous in the view that the purpose of paragraph 4.b is to dissuade people from taking the name of another without adornment and without permission and with a view to making direct reference to that person whether for tribute or criticism. The clear meaning of the rule is that such a registration is prima facie abusive, unless the Respondent can show otherwise. Accordingly, the burden is on the Respondent to show that the Domain Name is not an Abusive Registration.”

Accordingly I find that the Domain Name, in the hands of the Respondent, is an Abusive Registration.

Having concluded that the Complainant has Rights in respect of a name or mark which is identical to the Domain Name and that the Domain Name, in the hands of the Respondent, is an Abusive Registration, the Expert determines that the Domain Name, tahirmohsan.co.uk, should be transferred to the Complainant.

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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Mohsan -v- Bond [2003] DRS 693 (8 January 2003) URL: http://www.bailii.org/uk/cases/DRS/2003/693.html Cite as: [2003] DRS 693