WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

HMV Group plc, HMV (IP) Limited v. Brandyn Briley

Case No. D2006-0602

1. The Parties

The Complainants are (i) HMV Group plc, and (ii) HMV (IP) Limited, Berkshire, United Kingdom of Great Britain and Northern Ireland; represented by Thelen Reid & Priest LLP, United States of America.

The Respondent is Brandyn Briley, Atlanta, Georgia, United States of America.

2. The Domain Name and Registrar

The disputed domain name <topdog.com> is registered with Network Solutions, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 12, 2006. On May 15, 2006, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name at issue. On May 16, 2005, Network Solutions, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 18, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June 7, 2006. The Response was filed with the Center on June 8, 2006 in electronic form only. The Respondent filed a further document on June 12, 2006 called a Response. The Panel decided to admit both documents as the Response, although filed late, in the interests of justice.

The Center appointed Sir Ian Barker as the sole panelist in this matter on June 22, 2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

The Panel, by Procedural Order, dated June 28, 2006, granted the Complainants’ request for leave to file a submission in reply to the Response. This was because the Respondent had sought a declaration of reverse domain name hijacking against the Complainants which the Panel considered the Complainants were entitled to answer. The Respondent was permitted to file a submission strictly in reply to new matters raised by the Complainants. Both further submissions have been considered by the Panel.

The document filed by the Respondent in rebuttal exceeded in length by a large degree what the Panel had envisaged should have been filed. The body of the document occupied 28 pages, plus exhibits. Much of the document was repetitive of what had been said in the earlier Response. However regrettable the delay occasioned by the additional filings has been, the Panel has a better knowledge of the relevant facts from the additional submissions of both parties.

4. Factual Background

The Second Complainant, HMV (IP) Limited, is a wholly-owned subsidiary of the First Complainant, HMV Group plc (“HMV”). The Second Complainant is an intellectual property holding company.

The Second Complainant is the owner of the UK registered trademark TOP DOG, Registration No. 2155123, filed on January 9, 1998. This mark is registered in International Class 9 for use in connection with apparatus and instruments for recording, reproducing and transmitting sound and/or video information; sound and/or video recordings, sound and/or video recording media; video games; CD ROM; virtual reality systems; and parts and fittings for the aforesaid goods.

The Second Complainant is the owner of Community Trade Mark Registration No. 3051505, filed on February 11, 2003, and with a Seniority date of January 2, 2000, for the TOP DOG mark in International Classes 9, 16, 25, 28 and 35.

The Complainants also used the TOP DOG mark in the United States. They filed an application on August 12, 2003 to register the mark in the United States in connection with the same goods and services as specified in its CTM registration. HMV later closed its United States stores and abandoned its trademark application on August 22, 2004 after the Respondent had the disputed domain name transferred into her name.

Since the TOP DOG mark was first adopted by HMV in August 1996, HMV has invested considerable money and effort in building consumer recognition, reputation and goodwill in the mark in connection with a wide variety of goods and services.

HMV is a retailer of, among other things, music, DVD’s, and computer software, including video games. As of April 2006, HMV operated over 580 stores in 8 countries and has become one of the world’s leading retailers of music, video and computer games. From 1990 through November 2004, HMV operated stores in the United States, including one in Atlanta, Georgia, where the Respondent is located.

In 1992, HMV launched HMV Direct, a mail order operation. HMV has retail operations through the Internet since launching its first website, “www.hmv.co.uk”, in 1997. HMV also conducts sales through other websites. HMV currently employs some 9,000 people worldwide and effected ₤1,422.5 million in sales in the fiscal year ending April 2005.

The TOP DOG mark is used on a wide range of HMV’s advertising and marketing materials. HMV advertises through various media, including television and radio advertisements, magazine advertisements, and the sponsorship of high-profile events and competitions.

The TOP DOG mark is used in HMV stores and at point-of-sale displays. The mark has also appeared on all sales receipts generated by HMV and all point-of-sale bags since August 1996. HMV estimates that as of March 2006, over 300 million bags featuring the TOP DOG mark have been distributed to customers in its UK and Irish stores alone.

The TOP DOG mark has also been prominently featured on HMV’s websites since 1997. HMV estimates that as of the end of March 2006, it has received over 568 million hits on the “www.hmv.co.uk” website alone, since HMV first began recording hits to this website in 2003.

Neither Complainant has given the Respondent rights in the disputed domain name, which currently does not resolve in a website. The disputed domain name was registered in the name of the Respondent on June 30, 2004. It had first been registered on April 20, 1995.

Trademark registration in the United States was given to the mark TDTOPDOGSOFTWARE, confirmed as at April 26, 2002. The registrant was Topdog Software Inc. (TSI).

The assets of TSI are currently under the control of the Superior Court of Gwinnett County, Georgia, United States. The Respondent is the Court-appointed receiver of TSI, authorised to deal with TSI’s and DCMicro Development Inc. (DCMD)’s assets, including the disputed domain name and TSI’s registered mark. The transfer to the Respondent of the disputed domain name was effected in her capacity as court-appointed receiver. There is current litigation in the Courts of Georgia in which the former shareholders in TSI, Messrs Cecil and Lange are parties. They had operated as a partnership at some stage before forming TSI.

The Respondent was appointed receiver by the Court on March 11, 2002 and on April 15, 2002, she was given wide powers. The defendants in the suit (brought by Mr. Lange) were ordered to deliver to the Respondent, as receiver, a variety of assets, including the disputed domain name, as well as other domain names. Some of these domain names featured the expression “topdog”. The defendants were Mr Cecil, TSI and DCMD.

In his Complaint to the Court, Mr. Lange alleged that he and Mr. Cecil in 1998 jointly developed an internet search engine analyzer/submitter software product known as ‘TopDog’. They developed this product in partnership and processed credit card purchases through DCMD’s account. In March 2001, he alleges, Mr. Cecil and DCMD purchased the assets of TSI Inc., a Texas corporation, using partnership money. Mr. Cecil later registered TSI in Georgia in March 2001.

The Court of Appeals of Georgia on February 12, 2003, on an appeal brought by DCMD, held, inter alia, that the lower Court was correct in appointing the Respondent as receiver and that she “simply holds and manages the asset until the underlying claim is resolved.” Nothing was said about selling any asset, nor was the disputed domain name mentioned. The judgment seemed concerned with software.

TSI had been registered in the State of Texas but currently holds the status “not in good standing” under the laws of that State. It was re-registered in the State of Georgia but it was dissolved by the Georgian authorities on November 15, 2001. A document annexed to the certificate of dissolution shows that a majority of the incorporators and initial directors voted to dissolve the corporation. However, the Courts of Georgia apparently retain jurisdiction to deal with TSI’s assets.

The website accessed under the disputed domain name is described as being “under construction and coming soon.”

A lawyer for the Complainants spoke to the Respondent on March 3, 2006, who told him that she was a Court-appointed receiver in a lawsuit between two former partners who had used the disputed domain name in the past. The litigation had not been active for some time. She had not been paid for her services as receiver. She considered the disputed domain name might fetch as much as US$500,000 on sale. She was considering auctioning it off to the highest bidder. The same lawyer had written to her on December 13, 2005 expressing interest in buying the name on behalf of an unidentified client.

On March 2, 2006, the Respondent filed in the Court a notice soliciting objections to the sale of TSI’s intellectual property, including the disputed domain name. The sale was to commence on May 15, 2006 and proceeds were said to be used to settle debts and verified claims registered with the receiver as of April 14, 2006.

In December 2000, a company called Decision Software Inc. of Lanham, Maryland, the owner of a United States registered trademark for TOPDOG, filed a complaint under the Policy against TSI, then a Texas corporation, with the National Arbitration Forum (NAF).

The TOPDOG mark of this complainant had been used in connection with campaign management and data mining software in interstate commerce since February 1992. It had also used the mark on coffee mugs, hats and items of apparel.

According to the NAF panelist, TSI had offered to sell the same disputed domain name to the then complainant for $75,000. TSI did not file a response. By its decision of January 25, 2001, the panel found the disputed domain name identical to the complainant’s mark and that TSI had no rights or legitimate interests and had registered and used the disputed domain name in bad faith. (See NAF decision FA0012000096259).

According to an email from Mr. Cecil to the Respondent, on May 7, 2006, this NAF decision was overturned by a Federal Court in Virginia. No detail of this decision is available to the Panel.

The Respondent produced email correspondence with the Registrar around the time she sought to become registrant of the disputed domain name. DCMD was her predecessor in title, possibly preceded by TopDog Inc. of Georgia or TopDog of Texas.

Mr. Cecil apparently contends in the litigation that all TSI’s assets, including the disputed domain name, are now held by Kentucky companies in the name of Theodore Ivanchak, a business associate of his. Both Messrs Lange and Cecil display interest in the disputed domain name.

In another NAF proceeding brought in 2002 by DCMD regarding other domain names incorporating ‘topdog’, the panel declined to grant relief. The panelist cited the complexity of the factual disputes between Messrs Lange and Cecil as a reason for declining to resolve the bona fide or commercial purpose element of the Complainant’s case. The Panelist noted that the disputes in the Courts would require extended evidentiary hearings and co-ordination between state and federal trial courts in Georgia. (See NAF decision DCMicro Development Inc. a/k/a TopDog Software Inc. v. Sophtware, FA0212000137042. February 10, 2003).

5. Parties’ Contentions

A. Complainants

The disputed domain name is identical to the Complainants’ registered marks. The space between the two words in the mark does not create any probative distinction between the trademark and the disputed domain name. See Telecom Personal S.A.V. Namezero.com.In.,c WIPO D2001-0015.

The Respondent has no rights in the disputed domain name, nor is she known by it.

The Respondent is not using the disputed domain name other than offering it for sale. The disputed domain name does not resolve to a website. Any trademark owned by the now defunct corporation, TSI, is no longer valid.

Thus, although a prior registrant may have used the domain name in connection with a bona fide offering of goods by a partnership and/or TSI, that business has ceased and the partnership and corporation have been dissolved. The Respondent obtained registration of the domain name, not as part of any legitimate business, but merely to sell off the domain name as an asset, divorced from any prior business use of the domain name.

Mere registration of a domain name is not sufficient to confer rights or legitimate interests in the domain name for the purposes of the Policy. NFL Properties, Inc. v. One Sex Entertainment Co., WIPO Case No. D2000-0118. Moreover, the Respondent’s non-use of the domain name evidences a lack of rights or legitimate interests. Recordati S.P.A. v. Domain Name Clearing Co., WIPO Case No. D2000-0194.

The Respondent’s bad faith registration and use of the domain name, as demonstrated below, also evidences her lack of rights or legitimate interests in the domain name. N.C.P. Marketing Group, Inc. v. Entredomains, WIPO Case No. D2000-0387.

The Respondent has not made any legitimate or bona fide use of the domain name, and has registered the domain name primarily for the purpose of selling or otherwise transferring the domain name for valuable consideration in excess of the Respondent’s actual out-of-pocket expenses directly related to the domain name. The Respondent registered the domain name with actual or constructive notice of HMV’s use of the TOP DOG mark.

The Respondent’s lack of actual use of the domain name is evidence of bad faith registration and use. Ceyx Technologies v. Ceyx.Com, WIPO Case No. D2001-0681; McNeil Consumer Brands Inc. v. Mirweb Solutions, WIPO Case No. D2000-0612.

HMV engaged in long and widespread use of the TOP DOG mark, including in the United States, prior to the Respondent’s registration of the domain name. Prior to and at the time of the Respondent’s registration of the domain name, HMV’s application to register the TOP DOG mark in the United States was a matter of public record. HMV was using the TOP DOG mark at relevant times in Atlanta, Georgia, where the Respondent is located. Although HMV subsequently closed its United States stores and abandoned its United States trademark application, at the time of registration of the domain name, the Respondent had at least constructive knowledge of HMV’s use of rights in the TOP DOG mark. Such actual or constructive knowledge of HMV’s use and rights is evidence of the Respondent’s bad faith registration, especially when combined with the Respondent’s later offer to sell the domain name at public auction. Ticketmaster Corporation v. Spider Web Design, Inc., WIPO Case No. D2000-1551. See also, Trip.com, Inc. v. Deamone, WIPO Case No. D2001-1066; Expedia, Inc. v. European Travel Network, WIPO Case No. D2000-0137; Document Technologies v. Int’l Electronic Communications, Inc., WIPO Case No. D2000-0270.

In their supplemental submission, the Complainants emphasised that the Respondent, and not TSI or its formal shareholders, must be recognised as the registrant of the disputed domain name by way of transfer to her in June 2004.

Although the Complainants had applied for trademark registration in the United States before they ceased business in that country, they had established a common law mark there by reason of their retail operations – especially in Atlanta. The Respondent cannot rely on whatever rights TSI might have had. Since she became registrant of the disputed domain name, commercial use of the website ceased. She did not operate the TSI business and has not been active in her receivership because she had not been paid for her services.

The Respondent was required simply to hold and manage TSI’s assets until an underlying claim had been resolved. At the time the Respondent became registered, the partnership between Messrs Cecil and Lange had become irreparably broken. These persons went their separate ways. The Respondent is attempting to sell the disputed domain name to generate funds to pay her unpaid accounts.

The Respondent’s claim for Reverse domain name Hijacking is misguided. She has not established malicious intent or recklessness and the Complainants have trademark rights.

B. Respondent

The Respondent produced detailed submissions to demonstrate that the disputed domain name is not identical or confusingly similar to the Complainants’ marks. The Respondent cited legal authorities on trademarks. Most of these are irrelevant in view of the fact that the Second Complainant owns registered marks for the wordform ‘TOPDOG’ (See discussion below).

The Complainants do not dispute the validity of TSI’s trademark, TDTOPDOGSOFTWARE as registered. The Complainants assert that the Respondent’s trademark is rendered invalid due to the dissolution of the incorporation status of TSI. The Complainants offer no substantiation for this statement, but it is not necessary to decide whether the Complainants’ assertion is correct.

Again, much of the Respondent’s submission on this aspect is irrelevant because the contest is not between the Complainants’ registered marks and TSI’s registered mark.

There are 21 “TOPDOG” or “TOP DOG” marks registered with USPTO and a further 25 incorporating the words in the mark. There are similar registrations in other important jurisdictions. TSI or its predecessors in title registered the disputed domain name on April 20, 1995, preceding the Complainants’ use of the mark in August 1996. TSI filed for registration of its mark on April 19, 2001, whereas the Complainants’ application to USPTO was filed on August 12, 2003 and abandoned on August 22, 2004.

The words “top”, “dog” or “topdog” are common, descriptive non-specific words. Much of the Complainants’ website makes no reference to “topdog”. The Complainants’ mark is not able to be trademarked because it uses generic expressions.

The Respondent has legitimate rights and interests in the disputed domain name in her capacity as fiduciary for TSI. The assets of that company do not vaporize even if the Georgian and Texan corporation registrations may have lapsed.

The Respondent had entered into discussions for the commercial use of the disputed domain name before notice of this dispute. Her intent to sell the disputed domain name to best advantage is part of her duty as a Court-appointed receiver.

The former owners of the disputed domain name, Messrs Cecil and Lange, were known as “Topdog”, and they developed a software product under that name.

The Respondent seeks a finding of reverse domain name hijacking , plus refund of filing fees and appropriate stipends and other remedies resulting from the Complainants harassment.

The Respondent refers to two lawsuits in state and federal courts relating to disputes between TSI and Messrs Cecil and Lange. Mr. Cecil is alleging that the assets of TSI, including the disputed domain name, are now held by other companies. The Respondent instances a dictum of a Federal Judge in a case involving Mr. Lange, to the effect that state and federal trial courts will have ultimately to determine who has rights in the disputed domain name.

The Respondent’s registration of the disputed domain name may not be changed unless the Judge so orders. In March 2006, the Respondent applied to the Court for permission to sell all TSI’s domain names. No party has objected, although it appears that the Court has made no order yet. The Respondent is bound to act on instructions from the Court. She has used the disputed domain name in commerce sufficiently prior to the filing of the Complaint by entering into discussions in April 2006 about a development proposal from Hotkeys Inc.

6. Discussion and Findings

A. Identical or Confusingly Similar

The disputed domain name is identical to registered marks in which the Second Complainant has interests. These are the registered marks in the UK and the EU. The Complainants own no trademarks in the US. Authorities under the Policy which the present Panel accepts, show:

(a) If a Complainant owns a registered trademark then it satisfies the threshold requirement under the first limb of the Policy of sufficient interest in a trademark. The location of the registration is irrelevant, see Unreal Engineered Products, Inc v. Nauga Network Services, WIPO Case No.D2000-0503, Thaigem Global Marketing Ltd v. Sanchai Aree,WIPO Case No. D2002-0358 unless it is apparent that the registration process was not preceded by proper enquiry by the issuing authority.

(b) The attempt by the Respondent to claim that previous registrants of the disputed domain name are the proper Respondents is misconceived. The Register must be taken as showing the proper registrant. See University of Maryland University College v Nucom Domain Brokers, WIPO Case No. D20002-0081 and Dynamic Cassette Aut’l Ltd v Kombud, WIPO Case No. D2002-0262. No trusts are shown on the Register which must be notice to the world of the identity of the registrant of a domain name.

(c) The panel cannot ‘second guess’ trademark registration authorities which have issued a registration, just because a registered trademark is said by a Respondent to be a “generic” term which should not have been registered.

(d) A space between two words in a registered trademark does not mean that the disputed domain name is not identical because there is no space. The Telecom Personal decision (supra) applies.

(e) Despite its lack of a US trademark, the Complainant HMV has shown sufficient to establish a common law mark in the United States in the name for TOPDOG for its products since 1996 when its extensive retailing under that name began. It operated stores in the United States from 1990 to 2004.

(f) There are other registered US trademarks for the words TOP DOG, for a variety of products. The NAF decision quoted earlier involved a mark in the computer industry.

Accordingly, in the Panel’s view, the first limb of the Policy para. 4(a) has been proved.

B. Rights or Legitimate Interests

The Panel must look at this question as well as that of bad faith as at the date when the Respondent became the registered holder of the disputed domain name. However, the Panel considers that the Complainants cannot succeed under the second limb.

There is evidence about the use of the mark TDTOPDOGSOFTWARE but little evidence about the use of the disputed domain name prior to the Respondent’s registration other than what emerged in the NAF decision about the situation before 2001. There is little evidence as to what use was made of any website by TSI or by Messrs Cecil and/or Lange. However, it seems that both regard the disputed domain name as something of value and that they used the name when in partnership, to develop a software product called ‘TopDog’.

Here, the Respondent became registered in June 2004. She became registered because she was a Court-appointed receiver to liquidate the assets of TSI. She had been given no rights by the Complainants to the disputed domain name, even whilst acting as a fiduciary.

The present Respondent may have had some discussions with a third party about using the disputed domain name but the evidence is too inconclusive and does not satisfy the onus of proof on the Respondent on this aspect.

However, at the time of requisition, the Respondent had a right and legitimate interest in the disputed domain name. She was acting as the agent of a Court at the Court’s direction in procuring registration of the name to herself and preserving the asset for whomsoever was held by the Court to be the owner. The name had been used by Mr. Lange and/or Mr. Cecil/and/or TSI and/or DCMD. They were all litigating about a number of assets, including this disputed domain name. It is difficult to say that one or all of them did not have a legitimate interest in the domain name which may also have been the same name as that used by the Complainants to market their goods and services under a common law mark. There are several TOPDOG trademarks in the USA unconnected with the Complainants or their goods and services.

Nor should it be held against the Respondent in the unusual circumstances of this case, that the website has not been developed. That fact, in the Panel’s view, merely supports her stance that she was holding the name as a fiduciary. Cases where a passive holding has been used against a respondent are usually those where the respondent has registered the name opportunistically, hoping to sell it to advantage and without promoting any genuine business by use of the domain name.

C. Registered and Used in Bad Faith

Bad faith has to be assessed at the time of transfer of a disputed domain name, even if the original registration cannot be shown to have been in bad faith. See Webjet Marketing Pty Ltd v Norrish, WIPO Case No. D2005-1096 and the precedent cases there cited.

The Panel has difficulty in holding that the Complainants have proved that the disputed domain name was registered by this Respondent in bad faith. Both bad faith registration and use both have to be proved. Proof can be by proper inference from the facts.

It is clear that the Respondent was appointed receiver by a Court in Georgia to hold the assets of TSI pending an action brought by Mr. Lange against TSI, Mr. Cecil and DCND on August 3, 2001. In many common law jurisdictions, any assets of a liquidated or dissolved corporation become bona vacantia and are forfeited to the State. A company can be resurrected by leave of a court to enable a liquidator to sell off the assets on behalf of those who may be entitled to them, such as creditors and shareholders. However, the documents filed indicate that the court proceedings are still on foot, even after the Secretary of State for Georgia dissolved TSI on November 6, 2001. It seems clear that the Court has jurisdiction over these assets and that it considers the disputed domain name to be one of the assets.

It is difficult to see that a Court-appointed officer, purporting to act in accordance with the duties imposed on her by a Court to realize a corporation’s assets, could be acting in bad faith, with the primary intention of disrupting the business of the Complainants in any of the ways set out in the Policy para. 4(b). The Respondent may have infringed the Complainants’ rights by obtaining registration of the disputed domain name. That issue might have to be determined by a Court. It is not possible to decide that question in these proceedings under the Policy.

The available inference is that, mindful of the connection of the parties to the litigation in which she had been appointed receiver by the Court, the Respondent, without bad faith, has sought to preserve whatever value resided in the disputed domain name for the benefit of the party who succeeds in the litigation. There is nothing to suggest to the contrary.

The inference of constructive notice is weak. The NAF decision cited earlier shows that the disputed domain name was sought by a holder of a TOPDOG registered mark – not the present Complainants. The Complainants cannot say that it was the only entity using TOPDOG as a mark. Indeed, its common law mark is not as strong as the registered mark of the NAF complainant. Much of the evidence of the Complainants related to HMV’s business in the United Kingdom.

Nor can the Panel infer that the Respondent had actual or constructive notice of the Complainants’ trademark application filed with the USPTO. Cases which imply constructive notice arising from the trademark register apply to U.S. registered marks – not applications for registration. The application for a trademark was never completed, but was withdrawn. If the doctrine of constructive notice were to apply in this case, it would apply more likely to the TOPDOG registered mark of another entity in the computer industry, such as the complainant in the 2001 NAF decision. Nor is it by any means universally accepted by WIPO panelists that the doctrine of constructive notice applies in all cases. (See Overview of WIPO Panel Views on Selected UDRP Questions (2005) Para. 34).

The Complainants’ only registered marks were in UK and EU and the Respondent could not have been expected to have had constructive notice of these. Nor does the Panel find the evidence of any common law mark in the U.S. strong enough to require constructive notice of it to be inferred in the circumstances of the Respondent.

Nor does the Panel see anything sinister in the Respondent selling assets of TSI where she is be to paid her professional fees for the receivership out of the proceeds. It is a fairly basic tenet of insolvency law that the reasonable costs of a liquidation are a first charge on the assets of the defunct corporation. Moreover, as is indicated in this case, the quantum of the fees of Court-appointed officers is subject to the approval of the Court. If it were otherwise, then competent people would be unwilling to undertake the responsibilities of receivership and liquidations. Likewise, it is fairly basic law that a liquidator/receiver is bound to obtain the best price in the circumstances when selling the assets of the defunct corporation.

The Panel holds on the balance of probabilities, that bad faith registration has not been proved. Bad faith use, therefore, does not need to be considered.

7. Reverse Domain Name Hijacking

The Panel does not consider that this is an appropriate case for a declaration against the Complainants of Reverse domain name hijacking. The Complainants did have marks – registered in the UK and EU and a common law mark in the US. It does not seem to have acted with the degree of reckless disregard for the Respondent’s rights as is characterized by decisions where RDNH declarations have been made. See BAA plc v Larkin, WIPO Case No. D2006-0555 and Gold Line Int’l Ltd v Gold Line, WIPO Case No. D2000-1151. In the complicated factual matrix which the Panel has intended to summarise, it is hard to say that the Complainants knew of the Respondent’s unassailable right or legitimate interests in the disputed domain name.

The Respondent’s claims for costs are misconceived as being outside the scope of the Policy and the jurisdiction of the Panel.

8. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Complaint is denied.

Hon. Sir Ian Barker
Sole Panelist

Dated: July 26, 2006