Yorkshire & Humber Assembly vHirst [2005] DRS 02644 (12 July 2005) 

Nominet UK Dispute Resolution Service
DRS 02644
Yorkshire & Humber Assembly v Peter Hirst 

Decision of Independent Expert

1.	Parties

Complainant:		Yorkshire and Humber Assembly
Country:		GB

Respondent:		Mr Peter Hirst
Country:		GB

2.	Domain Name
yhassembly.org.uk (the "Domain Name")

3.	Procedural Background
The complaint was entered on to the Nominet system on 20 May 2005.  Nominet validated the complaint on 20 May 2005 and on the same day despatched a copy of the complaint to the Respondent.  No response was received from the Respondent by the due date of 17 June 2005 (or at all).  On 22 June 2005 the Complainant paid Nominet the appropriate fee for a decision of an Expert pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service Policy (the "Policy").  

I, Stephen Bennett, the undersigned, (the "Expert") have confirmed to Nominet that I know of no reason why I cannot properly accept the invitation to act as Expert in this case and have further confirmed that I know 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.

4.	Outstanding Formal/Procedural Issues
The Respondent has not submitted any Response to Nominet in compliance with paragraph 5a of the Procedure for the conduct of proceedings under the Dispute Resolution Service (the "Procedure").

Paragraph 15b of the Procedure provides, inter alia, that "If in the absence of exceptional circumstances, a Party does not comply with any time period laid down in this Policy or the Procedure, the Expert will proceed to a Decision on the complaint." 

There is no evidence before me to indicate the presence of exceptional circumstances.  Nominet has attempted to communicate the complaint to the Respondent by e‑mail and post.  The efforts made by Nominet are in accordance with the Procedure and accordingly, I will now proceed to a Decision on the Complaint notwithstanding the absence of a Response.

Paragraph 15c of the DRS Procedure provides that "If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure …, the Expert will draw such inferences from the Party’s non-compliance as he or she considers appropriate."  I am not aware of any exceptional circumstances in this case and so will draw inferences as appropriate.

5.	The Facts
The Domain Name, yhassembly.org.uk, is registered to the Respondent, Peter Hirst.
The website to which the Domain Name resolves is www.yhassembly.org.uk (the "Website").  The screen prints of the Website show a link to another website at the address www.nottheyhassembly.org.uk.  The domain name for this website is also registered to the Respondent, Peter Hirst.
The Complainant is the Yorkshire and Humber Assembly and is designated by the UK government as the regional chamber for the Yorkshire and Humber region.  The complainant's role is to promote and lobby on behalf of Yorkshire and Humberside in Whitehall and Brussels.  The Complainant's website is at the address www.yhassembly.gov.uk.  The Complainant was established in 2001.
I have no details about the Respondent. 
The Parties’ Contentions
Complainant:

	The Complainant does not spell out what Rights it claims to have other than to state that the Domain Name is identical to the domain name yhassembly.gov.uk owned by the Complainant and used for its website www.yhassembly.gov.uk.  The Complainant relies upon ownership of yhassembly.gov.uk and corresponding website since May 2002. 
The Complainant asserts that the Respondent is using the website at www.yhassembly.org.uk  to promote extreme political views and that the Respondent has referred to members of the Complainant's staff in a way which is said to be offensive and threatening.  The Complainant asserts that the site which uses the Domain Name is aimed at disrupting the Complainant's business.
The Complainant states that it has been in touch with the police in relation to the content of the Website.  The Complainant states that content of the Website is offensive to its staff members.  
The website at www.yhassembly.org.uk does not currently display the material attached to the complaint seemingly found at the time of the complaint at that website.
Respondent:
The Respondent has not responded.
6.	Discussion nd Findings  
	Complainant's Rights

The complaint annexes documentary evidence to support the claim to Rights.  This consists of promotional material for the Complainant and its work.  This material carries the Complainant's website address www.yhassembly.gov.uk.  The Complainant does, however, not promote itself as "yhassembly" but as "Yorkshire and Humber Assembly".  The Complainant does not rely upon any registered trade mark to support its claim to have Rights.

	The Complainant's case in relation to Rights is, as put in the complaint, rather weak - essentially it relies solely upon use of the website address yhassembly.gov.uk.  I am conscious, however of the view expressed in the appeal decision Seiko UK Limited v Designer Time/Wanderweb (appeal in DRS 00248) which stated that "…the requirement to demonstrate "Rights" is not a particularly high threshold test".  On that basis and on the basis of the evident use and promotion of the address yhassembly.gov.uk by the Complainant, I find that the Complainant has Rights in "yhassembly.gov.uk".  I also find that yhassembly.org.uk is similar.

	Abusive Registration

	To be an Abusive Registration the Domain Name must be one which "…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…".    

	Section 3 of the Policy contains a non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration.  These are as follows:

	"3.  Evidence of Abusive Registration

	(a)	A non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration is as follows:

(i)	Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily:
A	for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly associated with acquiring or using the Domain Name;
B	as a blocking registration against a name or mark in which the Complainant has Rights;  or 
C	for the purpose of unfairly disrupting the business of the Complainant.
(ii)	Circumstances indicating that 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;
(iii)	The Complainant can demonstrate that the Respondent is engaged in a pattern of registrations where the Respondent is the registrant of domain names (under .uk or otherwise) which correspond to well known names or trade marks in which the Respondent has no apparent rights and the Domain Name is part of that pattern.;  or 
(iv)	It is independently verified that the Respondent has given false contact details to us.
(v) …	[omitted]
	(b)	Failure on the Respondent's part to use the Domain Name for the purposes of email or a web-site is not in itself evidence that the Domain Name is an Abusive Registration."

	The DRS Policy also provides a non-exhaustive list of factors which may be taken to show that the Domain Name is not an Abusive Registration in the hands of the Respondent.  Relevant to this case is the ground that the Respondent "…has made legitimate non-commercial or fair use of the Domain Name".  The DRS Policy goes on to state that "…Fair use may include sites operated solely in tribute or criticism of a person or business".

	It is clear in this case that the Respondent has chosen the Domain Name to be extremely close to that used as the address for the Complainant's website.  The Domain Name is sufficiently close that users of the Internet looking for the Complainant's website are likely to input the address www.yhassembly.org.uk when looking for the Complainant's website.  This is particularly so given the Respondent's choice of the ".org.uk" suffix which a user would expect to be associated with a non-commercial organisation such as the Complainant.   There is therefore certainly potential for the Complainant's business (to the extent conducted through its website) to be disrupted and it appears this was a motivation in the Respondent's registration of the Domain Name. 

	There is, however, more to the equation than this.  Specifically, it is clear that the Respondent's objective is to criticise the Complainant.  According to the DRS Policy, as set out above, criticism may constitute "fair use".  As such this may which is a factor providing evidence that the Domain Name is not an Abusive Registration.  This is therefore perhaps the appropriate point to consider the content of the Respondent's Website.

	The Respondent is evidently not a fan of the Labour Party, its leaders and policies or the welfare state.  All these things are the subject of forthright attack on the Respondent's website at www.yhassembly.org.uk.  The Complainant is also on the Respondent's list of complaints.  There is, however, an aspect of the Respondent's website which goes beyond merely criticism.  At the risk of giving the Respondent's views a wider audience than they may have otherwise received, I think it is worth providing a sample of the views expressed on his website.  The following is taken from the print out of the home page of www.yhassembly.org.uk (as provided with the complaint):

	"So Prescott's cost the poor private sector taxpayer another £1 billion by his gross stupidity of sticking his tongue up the Trade Unions' rectum.  Why shouldn't local authority employees work until they are 65, why not until they drop dead, the GDP of Britain would be a lot higher if they were on the dole, their non jobs are so pointless.  Yet another example of what a brainless idiot the DPM is.  Wasn't he behind the postal votes fiasco?  What a visionary, what a statesman, what a twat.

	"Everyone matters" to the regional assembly - that is everyone except heterosexual white Anglo Saxon Protestants.  Quietly forgotten the "voice of the region" after Prescott's kicking in the North east.  Unfortunately the date has passed for the chance to be a temporary Inter-racial buggery facilitator whilst the present incumbent drops a sprog.  £28k to £40k on offer.  The successful applicant will be a packer of fudge or have experience of rug munching, the more limbs missing the better  ability to throw taxpayers 'money at the pointless and worthless essential, Grauniad reading necessary.

	Reasons to vote for Taliban Tony and the Electoral Fraud Party, or is it the mincers' party# or the socialist vermin party, or for the few not the many party.  Well, there's nothing positive you'll be surprised to know.  If you want a non-white, non-English speaking, non-Christian asylum seeker and quite probably a terrorist for a neighbour - Vote Labour.  If you want to catch TB, or something even nastier - Vote Labour.  If you want complete incoherence in government - think the friend of gipsies John Prescott, or the poisoned dwarf Ian McCartney - Vote Labour.  If you want to pay even more in tax for even more pointless bureaucrats for asylum seekers, for the parasites on job seekers allowance (job seekers!!?) and disability benefit (another name for it), for the moron's £1bn gift to African despots, for the EU gravy train - who pays for Mandelson and his bitch Renaldo? - Vote Labour.  If you want more criminals on the street committing crime - Vote Labour.  If you want to be governed by a Scottish Raj - Vote Labour.  If you want restrictions on free speech - Vote Labour.  If you want a nanny state - Vote Labour.  If you want to pay for the pensions of the dregs and runts of society - that's just the public sector, never mind council house tenants, as well as funding your own - Vote Labour.  

	If you want to hear the world's most smarmy man and Gordon the one eyed moron rabbiting on about social justice- whatever that is - to me it means stealing money from anyone who ash a modicum of wealth and chucking at the idle the thick and the ugly (but they are [this part of print out is illegible ]

	The Labour Party - "someone else always pays" # the hall of deviance - Chris Smith (soon to be the first former cabinet minister to die of Aids), Clive Betts, Stephen Twigg, Peter Mandelson, Ben Bradshaw, Lord Ali (honoured for services to the Petroleum Jelly Industry), and let's not forget the fishy smell of a lesbian forcefield coming from the west of London. 

	The tone and language of what the Respondent has written has clearly abusive aspects.  Some of it (in particular the reference to the maternity leave of a member of the Complainant's staff) appears to be directed at identifiable private individuals.  Some of the comments appear to be racially motivated.  Others are clearly homophobic.  The website also links to another run by the Respondent which contains more material or related subjects at the address www.nottheyhassembly.org.uk.  The home page from that site states as follows:

	"This website is being set up to ridicule and generally put a negative slant towards the taxpayer financed body "The Yorkshire and Humberside Regional Assembly", its members, staff and particularly its leader Councillor Peter Box and the Deputy Prime Minister John Prescott.

	If you are politically correct, called Linda Bellos or Polly Toynbeem and are likely to be offended by references to dykes, vegetarians, biters of pillows, non-white Anglo Saxon Protestants illegal immigrants, social workers, horny handed sons of toil, and the educationally sub normal back button on your browser now and go back to reading the Guardian.

	Should the opportunity arise, and I'm sure it will, I hope to have a go at our blessed PM "Smarmy dullard chum "Gordon the Moron"*, Blind Man "I can't see any asylum seekers so let's allow ?? into the country" Bllunkett, Peter "permatan" Hain, P^sshead Kennedy or any other pinko politician my Right Wing sensibilities. (excluding the gorgeous pouting Oona King). 
 
	There is a tricky question to be resolved here.  The Nominet DRS policy is not intended, so far as I am aware, to police the content of websites.  Its aim is to deal with the misuse of domain names from a starting point of intellectual property rights.  The DRS Policy does, however, in providing a list of factors which may evidence Abusive Registration, introduce a need to consider the use of the Domain Name and the content of the website operated using the Domain Name.  In this case, there is the specific issue of the Domain Name being used to establish a website used to criticise the Complainant.  

	The relevant provision (paragraph 4(a)(i) (of the Policy) states that "…legitimate non-commercial or fair use of the Domain Name" may be evidence that the Domain Name is not an Abusive Registration.  Paragraph 4(b) states fair use may include sites operated solely in criticism of a person or business.

	The issue with this provision and the present case is the reference to "legitimate non-commercial or fair use".  This involves two value judgments.  There is the issue of whether the use is "legitimate"…then whether it is "fair use".  

	It seems to me that "legitimate" may carry with it some requirement that there is no infringement of the law (as opposed to any judgment as to whether the criticism is deserved).  There are laws in the United Kingdom in relation to the use of racist language and inciting racial hatred.  Whether the Respondent has broken these laws with the content of his website is not, however, an issue with which the DRS can deal.  

	What is clear, however, is that the content of the site goes beyond criticism.  It is quite clearly intended to be abusive and is in part directed at identifiable individuals employed by the Complainant.  In my view there is a conceptual problem in viewing such abusive content directed at private individuals as a "legitimate…fair use".  Accordingly my view is that paragraphs 4(a)(i) C and 4(b) of the DRS Policy do not save the Respondent from a finding of Abusive Registration.  Given the nature of the content of the site, I consider that the use of the Domain Name is unfairly detrimental to the Complainant's Rights.  

	Before leaving this subject, however, I should address the issue of "freedom of speech".  Does this decision impact upon the Respondent's freedom of speech?  It certainly has some effect in that the content can no longer be displayed at an address using the Domain Name.  It does not, however, stop the Respondent posting the content at another address which is not similar to the Domain Name.    

	Decision

	The Complainant has Rights in the name yhassembly.gov.uk.  The Domain Name is similar.  The Domain Name in the hands of the Respondent is an Abusive Registration.

	The Complainant's request for a transfer of the Domain Name should be granted.  

______________________                                        _________________                                      
Stephen Bennett
Date