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					                    Nominet UK Dispute Resolution Service


                                   DRS 000652



HM Land Registry v Timewell Estates Plc


Decision of Independent Expert


1.    Parties:

Complainant:        HM Land Registry
Address:            32 Lincoln’s Inn Fields
                    London
Postcode:           WC2A 3PH
Country:            UK


Respondent:         Timewell Estates Plc
Address:            10 Greenbank Road
                    Uppermill
                    Saddleworth
Postcode:           OL3 6EB
Country:            UK


2.    Domain Name:

landregistry.org.uk (“the Domain Name”)


3.    Procedural Background:

The Complaint was lodged with Nominet on October 10, 2002. Nominet validated
the Complaint and notified the Respondent of the Complaint on October 14, 2002
and informed the Respondent that he had 15 days within which to lodge a
Response. The Respondent provided a Response on October 30, 2002 which was
communicated to the Complainant the next day. Complainant’s Reply was
received on 11 November, 2002 and communicated to the Respondent the same
day. The Respondent filed an informal Response subsequent to the Reply. Since
the Response contained relevant information, was in answer to points made in the
Complainant’s Reply and was received by the Expert at the same time as the other
papers the Respondent’s informal Response subsequent to the Reply has been
taken into account.
Mediation not succeeding, on December 13, 2002 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”).

 Dawn Osborne, the undersigned, (“the Expert”) confirmed to Nominet that she
knew of no reason why she could not properly accept the invitation to act as
expert in this case and further confirmed that she knew of no matters which ought
to be drawn to the attention of the parties, which might appear to call into
question her independence and/or impartiality.

4.        The Facts:

The Complainant, established in 1862, is an Executive Agency, the government
department with statutory responsibility for registration of title and interest in land
in England and Wales. It is the owner of UK trade mark no. 2235007 LAND
REGISTRY DIRECT in classes 9 and 42 for inter alia “land registry services” and
“on line access to land registry data”.

The Defendant is a private company offering services involving Land Registry
searches. It has been trading for more than two years, at first under the domain
timewell.co.uk, and since February 2002 using the Domain Name.

5.        The Parties’ Contentions:

Complainant:

The substance of the Complaint and Reply is as follows:

     1.      The Complainant, established in 1862 is an executive agency and
             government department with sole statutory responsibility for the
             registration and custodianship of title to and interests in land in England
             and Wales. On behalf of the Crown it guarantees title to the registered
             estates and interests in land. It provides a stable land registration
             system and provides ready access to up to date and guaranteed land
             information enabling confident dealings in property. There are about 18
             million registered titles to land in England and Wales. On average the
             Complainant receives about 105,000 searches a day.
     2.      The Complainant is the owner of the domain name landreg.gov.uk. It
             has had a web site since 1996 which currently attracts about 4,000
             visitors daily. Most people visit the web site to get information about
             the Land Registry or to obtain application forms for use in obtaining
             official data or in respect of our published property price reports. About
             65 queries a day are received via the web site. The Complainant also
             owns the following domain names which are inoperative
             landregistry.uk.net, landregistry.tv, landregistry.gb.com,
             landregistry.eu.com, landreg.org.uk.
   3.     The Complainant is the registered proprietor of UK trade mark
          registration no 2235007 for LAND REGISTRY DIRECT in class 9 and 42
          for inter alia “land registry services” and “on line access to land registry
          data”.
   4.     The Complainant has both registered and unregistered rights in a name
          which is identical or similar to the Domain Name.
   5.     For most of the time it has been trading the Respondent has used the
          domain name “timewell.co.uk”. In February 2002, it switched to using
          the Domain Name, but has offered no explanation for the switch or for
          the choice of the Domain Name. There is no evidence that the
          Respondent has been known by an identical or even remotely similar
          name to the Domain Name. By its choice of domain name the
          Respondent was attempting and continues to attempt to exploit the
          reputation of and goodwill associated with the Complainant and the
          services it provides.
   6.     The Domain Name is an abusive registration because it is being used by
          the Respondent in a confusing way. The disclaimer on the Respondent’s
          site is not enough, it is in small italicised font at the bottom left hand
          page of the site, whereas the visitor is encouraged to proceed quickly by
          bold red type in the centre of the page “ENTER MAIN WEB SITE” and is
          unlikely to linger long enough to read the small print disclaimer. After
          the visitor goes beyond the home page of the site, the disclaimer is no
          longer visible. The Respondent’s on line search order form bears the
          mark “LAND REGISTRY UK”. The Land Registry has been contacted
          many times both by e mail and telephone by people complaining about
          the Respondent’s web site because they thought it was the
          Complainant’s site.
   7.     The Complaint details fifteen alleged instances of confusion and
          appends e mails from an individual Mr Burton in which this member of
          the public complains to the Complainant that despite the disclaimer on
          the web site the Respondent appears to be part of the Complainant, that
          “They are not a .org – they trade for profit. They mislead with their
          domain name.” He complains that “The URL signals close association”
          and that the confirmation he received for his money ordering a search of
          the Land Registry from the Respondent suggested to him that he had
          done business with the Complainant directly.
   8.     The Respondent is engaged in a pattern of making abusive registrations
          with the aim of taking advantage of the Complainant’s name. A
          company UK Web Designs and Internet Services Limited based at the
          same registered office and having a director in common with the
          Respondent has subsequently registered “landregistrysearches.co.uk”
          and “landregistrysearches.org.uk”.


Respondent:

The substance of the Response and informal response to the Reply is as follows:
1. The Respondent has a legal right to the Domain Name and denies it is an
   abuse. The Domain Name was purchased in good faith for a legitimate
   purpose namely the sale of Land Registry searches.

2. The Respondent has a considerable clientele and offers a professional
   speedy and efficient service that goes beyond carrying out searches. The
   Respondent’s clients prefer to use its services rather than the Land Registry
   as the Respondent assist with difficulties of knowing which search and
   which form to use, helps to identify the address and title number of the
   property and helps with how to proceed and what to do after the search is
   received and can speed matters up. The Respondent is merely offering the
   customer a choice. As a result of the work carried out the clients are aware
   that they are dealing with the Respondent and not the Land Registry and
   the web site and Respondent’s stationery tells them this. The Respondent
   has hundred of testimonials expressing gratitude for his service and has
   appended examples to his Response. These customers were not confused.

3. It is possible that a small percentage of the Respondent’s clients believed
   they were visiting the Complainant’s site, but if this is the case the
   Respondent has never been advised of it, has not received any complaints
   and has seen no evidence of this. The statements contained on the home
   page and entry page are sufficiently informative to anyone with the
   intelligence to use the Internet. Indeed, the Respondent has recently since
   the Complaint made further alterations to the web site to make it clear it
   does not belong to the Complainant and to avoid further confusion.

4. The Complainant does not own landregistry.com owned by a real estate
   company in Santa Fe, landregistry.net owned by Vertical Axis,
   landregistry.org a blank page with the domain for sale, landregistry.co.uk
   advertising hotels and internet directories and landregistry.info owned by
   Hortensia Plantscapes. The Complainant does not have the exclusive right
   to these domain names or the Domain Name. The Complainant does not
   have a trade mark registration for LAND REGISTRY.

5. When searching on search engines using the words “land registry” the
   Complainant’s have multiple listings on every page with most of the major
   search engines. The Complainant has more than their fair share of
   publicity and hits with landregistry.gov.uk. It is improbable that anyone
   seeking the Complainant’s site would mistakenly enter the Respondent’s
   site and employ the Respondent’s services.

6. On the front page of the Respondent’s site is the statement ”Timewell
   Estates plc – (Land Registry Searches Department)”, a further statement
   “our company Timewell Estates Plc obtains copies of records held by the
   Land Registry on behalf of its clients” and the disclaimer “Note:This web
   site is not affiliated or connected in any way with HM Land Registry. We are
   an independent company utilising a direct access link into the Land
   Registry’s database.“ The disclaimer appears in the same size font as the
        rest of the wording on the site except the title “Land Registry Searches”
        and “Enter Main Web Site”. The disclaimer is visible when using standard
        resolution and also on the first page of the main site. Having the title and
        main instructions in larger font on the initial page is a perfectly normal and
        legitimate way to design a web page. The Respondent denies that the e
        mailed confirmation of search instructions is misleading. On all e mail
        confirmations the customer is advised 3 times that he has done business
        with the Respondent. The order form does contain the words “Land
        Registry UK” at the foot of the lengthy form in small print for search engine
        listing purposes. The Complainant is not the Land Registry for the entire
        UK only England and Wales and the Respondent will shortly offer Land
        Registry searches in Scotland and Ireland.


     7. The Respondent has been trading for more than 2 years, first under the
        domain name “timewell.co.uk” and later (February 2002) under the Domain
        Name and has built a considerable trading business over this time.
        Timewell.co.uk is used to support the property investment, management
        and consultancy aspect. In February 2002 the Respondent decided to
        expand its Land Registry searches department and created a new web site.
        The Domain Name was available and was an obvious choice for the sale of
        Land Registry searches. Having the same domain name as the keyword in
        the site will achieve higher search engine listings which are vital to an
        Internet based business. This was the sole motive for selecting the name.
        There was never an intention to exploit the reputation of the Complainant.
        The Respondent has recently contracted to offer land registry searches in
        Scotland and intend to do so shortly in Ireland. These areas are outside the
        jurisdiction of the Complainant, but it will be vital for us to use the same
        search terms and the same domain name to achieve useful search engine
        listings.

     8. The Domain Name is descriptive of the business which it is used for and the
        Respondent is making fair use of it.

     9. The domain names landregistrysearches.co.uk and
        landregistrysearches.org.uk were purchased because two separate web
        sites are to be created to deal with the Scottish and Irish searches. The
        names have no relevance to this case. The Respondent is not entitled to
        every name that bears the words “Land Registry”.

     10. There was never any intention of the Respondent to capitalise on the
         Complainant’s goodwill. The Complainant benefits from a substantial
         amount of money from the Respondent’s business as it has to pay the
         Complainant’s fee for every search it conducts. The Customer can make an
         informed decision having shopped around.

6.      Discussion and Findings:

General
To succeed in this Complaint the Complainant has to prove to the Expert pursuant
to paragraph 2 of the Policy on the balance of probabilities, first, that it has rights
(as defined in paragraph 1 of the Policy) in respect of a name or mark identical or
similar to the Domain name and, secondly, that the Domain Name, in the hands of
the Respondent, is an Abusive Registration (as defined in paragraph 1 of the
Policy).

Complainant’s Rights

The Complainant is known as “HM Land Registry” or more colloquially as “the
Land Registry” in England and Wales. Indeed the Respondent refers to it
throughout its Reply and Response as simply “the Land Registry”. The equivalent
bodies in Scotland and Northern Ireland are known as The Land Registers of
Scotland and The Land Registers of Northern Ireland respectively. If an
organisation were to call itself The Land Registry and offer services relating to the
registration of real estate in the United Kingdom, the Complainant would be able
to restrain use of the name by means of passing off proceedings as the name is
not purely descriptive and has acquired secondary meaning indicating only the
Complainant in the UK for land registration services. These unregistered rights
have been recognised by the granting of a UK trade mark for LAND REGISTRY
DIRECT for inter alia “land registry services” and “on line access to land registry
data”. Accordingly, I hold that the Complainant has unregistered rights in the
names HM LAND REGISTRY and THE LAND REGISTRY in the United Kingdom and
registered rights in LAND REGISTRY DIRECT.

The Domain Name consists of the term LAND REGISTRY and the suffix <.org.uk>.
The suffix “.org.uk” might be taken to indicate an official organisation more than a
private company to members of the public. There is evidence that one member of
the public thought this meant a not for profit organisation. However, even without
this consideration and treating the domain name suffix as an entirely neutral
descriptive element, I consider that the Complainant has rights in respect of the
names or marks HM LAND REGISTRY, THE LAND REGISTRY and LAND REGISTRY
DIRECT which are similar to the Domain Name.

Abusive Registration

Paragraph 1 of the Policy defines “Abusive Registration” as:-

       “a Domain Name which either:
             i.    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; OR
             ii.   has been used in a manner, which took unfair
                   advantage of or was unfairly detrimental to the
                   Complainant’s Rights.”
A non-exhaustive list of factors, which may be evidence that the Domain Name is
an Abusive Registration is set out in paragraph 3a of the Policy. The factors
relevant to the Complainant’s allegations are in (ii) and (iii):

          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 “In combination with other circumstances indicating
              that the Domain Name in dispute is an Abusive
              Registration, the Complainant can demonstrate that
              the Respondent is engaged in a pattern of making
              Abusive Registrations.”

The Expert is of the opinion that the Respondent’s conduct and use of the Domain
Name is indicative of relevant abusive conduct. The Domain Name is similar to the
name of the Complainant and the Respondent, offering services relating to Land
Registry searches, must have been aware of the Complainant and its goodwill in
the LAND REGISTRY name at the time it commenced use of the Domain Name in
February 2002 and must have been aware that its planned use of the Domain
Name involved a likelihood of confusion. There is evidence that members of the
public have been confused by the use of the Domain Name by the Respondent
including a highly persuasive set of e mails direct from one such confused
member of the public to the Complainant. That member of the public particularly
commented that he thought the Domain Name was misleading as used by the
Respondent. Even the altered site currently as at the date of this decision pointing
to the Domain Name is, in the opinion of the Expert, confusing to the uninitiated.
The heading Land Registry Searches remains in far bigger type than the
Respondent’s name and the disclaimer appears in very small type. The Expert
agrees with the Complainant that the temptation will be to click on the red text
“Enter Main Web Site” immediately without reading the small print and once
there to start clicking on options in the menu bar for services offered rather than
read the small print. The similarity of the Domain Name to the Complainant’s
name which led at least one member of the public to believe that there was a very
close association between the Respondent’s site and the Complainant may give
members of the public false impressions and confidence as to the origins of the
site which may override innate caution to read small print.

In the light of this finding the expert does not need to decide the question of
whether the Respondent has engaged in a pattern of Abusive Registrations.

In the view of the Expert the registration and use of the Domain Name by the
Respondent took unfair advantage of the Complainant’s rights.

Accordingly, the Expert finds that the Domain Name is an Abusive Registration
within the definition of that term in paragraph 1 of the Policy.
7.    Decision:

In light of the foregoing findings, namely 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 directs that the Domain Name, landregistry.org.uk be transferred to the
Complainant.




______________________                        ____January 8, 2003__________
     Dawn Osborne                                                    Date

				
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