The Complainant is Christy Media Solutions Limited of Milton Keynes, United Kingdom of Great Britain and Northern Ireland (“United Kingdom” or “UK”), represented by Safenames Ltd., United Kingdom.
The Respondent is Contact Protect, IdentiSafe Limited of Sough, Berkshire, United Kingdom / Ian Upton of Banbury, Oxfordshire, United Kingdom, self-represented.
The disputed domain name <christi-media.com> is registered with Paragon Internet Group Ltd t/a Paragon Names (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 26, 2016. On January 26, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 26, 2016, January 27, 2016, and February 2, 2016, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 3, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 23, 2016. The Response was filed with the Center on February 19, 2016. On February 23, 2016, the Complainant submitted a Supplemental Filing.
The Center appointed Steven A. Maier as the sole panelist in this matter on March 2, 2016. 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 determines that the Respondent Ian Upton is the underlying registrant of the disputed domain name and will refer to the Respondent accordingly.
The Complainant is a company registered in England and Wales. It has traded since 2005 and provides recruitment services particularly in the broadcast and media sectors. It operates a website at “www.christy-media.com”.
The Respondent registered the disputed domain name on August 30, 2015.
The Respondent has used the disputed domain name for the purposes of a website at “www.christi-media.com” which appears to be the website of a business named “Ian Christian Media Recruitment”. The business appears to constitute a recruitment services “hub”, particularly in the broadcast and media sectors.
The Complainant states that it has traded for ten years and has clients and candidates based all around the world. It had a turnover of over GBP 4 million in 2015 and invests considerable sums into sales and marketing. It submits examples of magazine and newspaper advertisements including the name CHRISTY MEDIA SOLUTIONS dating from 2005 to 2015. The Complainant states that it attends industry events and trade shows and also sponsors such events, including the BVE trade show, which is one of the UK’s principal broadcast and production technology events. The Complainant submits images of its website, publicity materials, and trade fair stands, all of which prominently feature the CHRISTY MEDIA SOLUTIONS name.
The Complainant submits that as a result of the matters referred to above, it has established common law rights in the name and mark CHRISTY MEDIA SOLUTIONS.
The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant relies on its unregistered trademark rights in the name CHRISTY MEDIA SOLUTIONS. It states that this name originated from the name of the Complainant’s founder, Christian Magill, and that it does not consist of a commonly used or descriptive phrase. The Complainant submits that the name has become distinctive of the Complainant and its services and that customers would clearly identify the name exclusively in connection with the Complainant.
The Complainant contends that the disputed domain name differs from its mark CHRISTY MEDIA SOLUTIONS only by the letter “y” being changed to an “i” and the omission of the term “solutions”. The Complainant claims that these differences are not sufficient to distinguish the disputed domain name from the Complainant’s mark and that the disputed domain name represents an attempt at “typosquatting”.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant states that it has never authorized the Respondent to use its CHRISTY MEDIA SOLUTIONS mark. It also contends that the Respondent has not commonly been known by the disputed domain name (and that the Respondent’s use of the disputed domain name since registration is irrelevant to that consideration). The Complainant submits that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, as the Respondent is using it for the purpose of a commercial website which states that it charges the “client side” of the business. Furthermore, the Complainant submits that the Respondent is using that website to disrupt the Complainant’s business and to pass itself off as the Complainant. In particular, the Complainant contends that the look and feel of the Respondent’s website is designed to resemble that of the Complainant and that the Respondent has copied the Complainant’s colour scheme, layout, images, and content as well as specific job listings. The Complainant disputes that any individual named Ian Christian exists and alleges that a photograph on the Respondent’s website, supposedly of Mr. Christian, is in fact a photograph of an individual copied from a totally unconnected website, that of “Net World Sports”. The Complainant alleges that, in fact, numerous other profile images purporting to be the Respondent’s employees have been copied from the same website. The Complainant produces copies of the photographs in question.
The Complainant also produces several pages of code representing what it states was the “foundation of” the Respondent’s original website, which include at least two references to the name “Christy Media Solutions”. The Complainant alleges that the Respondent’s web pages also use images and text copied from the Complainant’s website and that the Respondent has used this material as a search engine optimization (“SEO”) strategy to capture traffic intended for the Complainant’s website.
The Complainant submits that the disputed domain name has been registered and is being used in bad faith.
The Complainant alleges that the Respondent has made it his purpose to disrupt the Complainant’s business following the breakdown of an unrelated sports business venture between him and the Complainant’s owner. The Complainant refers to a series of harassing and taunting messages which it has received, including one sent shortly after the registration of the disputed domain name and one which it claims refers to another competing website operated by the Respondent. However, the Complainant does not produce any direct evidence that the Respondent was responsible for these messages.
The Complainant requests a transfer of the disputed domain name.
The Respondent denies the Complainant’s claims and states that he is using the disputed domain name for the purpose of a legitimate business which adopts a completely different model and strategy from that of the Complainant.
The Respondent submits that the Complainant has no registered trademark rights in the name CHRISTY MEDIA SOLUTIONS or any part of that name, and no registration for the term “christi” or any similar variant. The Respondent further submits that the disputed domain name <christi-media.com> is not identical to the Complainant’s domain name <christy-media.com> and that the two domain names relate to two completely different businesses. The Respondent contends that the Complainant trades as “Christy Media Solutions” which is substantially different from the Respondent’s own trading name, “Ian Christian Media Recruitment”.
The Respondent submits that he legitimately registered the disputed domain name, which was freely available for purchase and that “it was unfortunate that the Complainant did not purchase it as part of a website protection policy at some point in the previous ten years…” The Respondent states that the disputed domain name was the best domain name available for the business “Ian Christian Media Recruitment” as alternative names were unavailable or “too religious” in nature. The Respondent states that the business name was selected “based on its trustworthy and reliable feel” and that the disputed domain name was chosen “to create an identifiable brand based on solid, reliable advice and assistance for clients searching for jobs.”
The Respondent states that he has used the disputed domain name to create a web-based recruitment reference tool and information point to generate traffic via high web listings and strong web design which can create advertising revenue, commissions, and fees in the future in the broadcasting and media recruitment industry. The website has offered “free to use” online reference information and links in order to generate traffic and secure valuable search results. The Respondent states that he has 18 years of experience in developing these types of businesses.
The Respondent states that the website linked to the disputed domain name is based on a standard design template used across a number of the Respondent’s websites. He denies that the website is similar in design to the Complainant’s website and states that the content was written in house and is entirely original. He states that the colour scheme and designs are completely different and that the website uses appropriate generic clip art images, which the Respondent is lawfully entitled to use for his own marketing purposes and which are also used to market broadcast and media services by other companies in the field. He contends that the Complainant has failed to provide any evidence of the copying of text or of any images owned by the Complainant. The Respondent denies having copied specific job listing from the Complainant and states that these are sourced from other parties.
The Respondent denies that either the website or the business “Ian Christian Media Recruitment” has ever constituted an attempt at passing off the Respondent’s business as that of the Complainant. The Respondent states that he is operating a different business model by using a reference hub website to generate high traffic levels which can then be used to generate income. He has no intention of directly signing up the Complainant’s customers and no intention of disrupting the Complainant’s business. The Respondent submits that most “generic” searches (e.g., for “christie media solutions” or even “christi media solutions”) will bring up the Complainant as the first result and that the disputed domain name has therefore had no impact on the Complainant’s business.
With regard to the appearance of the name “Christy Media Solutions” in the Respondent’s website code, the Respondent states that the Complainant refers to a “scrap design” template used by the Respondent which was not available to the public or linked in any way. It states that the Respondent’s “back code” displayed all source code, alt tags, meta tags, files and image names used by the Respondent and that it is permissible and within “the accepted code of practice for all search engine optimization” to use competitor names and variations thereof.
The Respondent states that he has never claimed that his business “Ian Christian Media Recruitment” has been commonly known by the disputed domain name.
The Respondent states that since the launch of his website in August 2015 he has received a barrage of unfounded allegations from the Complainant. He states that these have included allegations of harassment made by the Complainant to the police, concerning the Complainant’s chat room content, which were found to be untrue. The Respondent states that, prior to these actions, he had had no prior contact or involvement with the Complainant and had not even met the Complainant’s owner, Mr. Magill. He states that his only connection to Mr. Magill is that, via his partner, he declined a business invitation from Mr. Magill’s wife in 2011. The Respondent states that he is baffled by the Complainant’s allegations against him which appear to amount to a “business smear campaign”. He states that he is unable to comment on the offensive messages which the Complainant puts forward as having emanated from the Respondent.
The Respondent submits that the Complainant is attempting to harass the Respondent and to prevent the Respondent from entering the market with a genuine new business. He submits that the Complainant is abusing the Policy and seeks a finding that the Complainant has brought this administrative proceeding in bad faith, for example as an attempt at “reverse domain name hijacking” (paragraph 15(e) of the Rules).
The Panel has reviewed the Complainant’s Supplemental Filing, relating to evidence of its UK trademark registration granted after the submission of the present Complaint. The Panel determines that it is unnecessary to consider the Complainant’s Supplemental Filing in this proceeding.
In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
The Panel finds that, as a result of its trading history and its advertising and promotional activities over a period of ten years under the name “Christy Media Solutions”, the Complainant has acquired rights in that name in the nature of unregistered trademark rights. It is well-established that such rights are adequate for the purposes of the paragraph 4(a)(i) of the Policy, providing the name has become a distinctive identifier associated with the Complainant or its goods or services (see, e.g., paragraph 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)).
The disputed domain name is <christi-media.com>. The first two elements of the disputed domain name are identical to the term “christy media” but for the substitution of the letter “y” with an “i” and the hyphen. They are also to all intents and purposes aurally identical. The Panel does not consider that the omission of the term “solutions” from the disputed domain name is effective to distinguish it from the Complainant’s mark, because the Panel finds that the term “christy media” in itself is sufficiently distinctive to denote the Complainant and its services.
The Respondent’s submissions that the Parties’ respective businesses have different names and follow different business models are irrelevant to a comparison of the disputed domain name with the Complainant’s mark for the purpose of assessing confusing similarity.
In the circumstances, the Panel finds that the disputed domain is confusingly similar to a trademark or service mark in which the Complainant has rights.
It is common ground between the Parties that the Complainant has not authorized the Respondent to use its mark CHRISTY MEDIA SOLUTIONS, that the Respondent has not been commonly known by the disputed domain name and that the Respondent is using the disputed domain name for what appears to be a commercial purpose related to irecruitment services. In the circumstances, the Panel must consider whether, before any notice to the Respondent of the dispute, he has used or made demonstrable preparations to use the disputed domain name, or a name corresponding to the disputed domain name, in connection with a bona fide offering of goods or services (paragraph 4(c)(i) of the Policy). For the reasons set out in sub-section (C) below, the Panel does not consider that the Respondent’s website to which the disputed domain name is linked represents a bona fide offering of goods or services. In the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
In the view of the Panel, the underlying question in this proceeding is whether the principal purpose of the Respondent’s registration and use of the disputed domain name has been (a) to operate a bona fide business or (b) to target the Complainant’s trademark, whether for the purpose of disrupting the Complainant’s business and/or for the purpose of diverting Internet traffic intended for the Complainant.
There is a dispute concerning the nature and extent of the Parties’ relationship prior to this dispute. However, it is accepted by the Respondent that he had at least indirect dealings with the Complainant’s principal in about 2011 in connection with a business venture that did not proceed.
The Panel also notes that the Respondent’s website purports to offer recruitment services, particularly in the broadcast and media sectors, which is precisely the same field in which the Complainant has operated for some ten years. This being a somewhat narrowly defined sector within the recruitment industry, it would be remarkable if the Respondent was not aware of both the Complainant’s name and its website at “www.christy-media.com” at the date he registered the disputed domain name.
In the circumstances, the Panel infers that the Respondent was more likely than not to have been aware of the Complainant and its business under the name “Christy Media Solutions” at the time he registered the disputed domain name.
The Respondent explains his choice of the disputed domain name as follows. First, he states that his business name is “Ian Christian Media Recruitment”. However, the Respondent is not named Ian Christian, nor does he explain who, if anyone, Ian Christian is. Indeed, the Respondent does not directly dispute the Complainant’s assertion that there is no such person as Ian Christian and that the photograph on the Respondent’s website, supposedly of Ian Christian, is in fact of another individual copied from the Internet. The Respondent states that the business name was chosen “based on its trustworthy and reliable feel” but this assertion is not further explained.
Secondly, the Respondent states that the disputed domain name, <christi-media.com>, was the best available domain name to represent the business of “Ian Christian Media Recruitment”, other names being unavailable or “too religious”. He says that the name was chosen “to create an identifiable brand based on solid, reliable advice and assistance for clients searching for jobs,” but again this is not further explained.
The Panel does not understand or accept the Respondent’s explanations for his choice of either the business name “Ian Christian Media Recruitment” or the disputed domain name, and can find no credible reason for the Respondent’s choice of the disputed domain name other than to target the Complainant’s trademark and its website located at “www.christy-media.com”.
Comparing the Parties’ respective websites, the Panel accepts that the Respondent’s website bears some similarity to the Complainant’s website and that it uses one or more (generic) images that also appear on the Complainant’s website. However, the Panel has not seen evidence of wholesale copying of the Complainant’s style and content, as the Complainant suggests.
While the Respondent states that he operates a different business model from the Complainant, in that he is seeking initially to drive website traffic by operating an information “hub”, the fact remains that the Respondent’s website at “www.christi-media.com” purports to offer services in the same field as that of the Complainant’s website at “www.christy-media.com”, namely recruitment services aimed particularly at the broadcast and media sectors.
Although the Respondent submits that he has had 18 years of prior experience of setting up similar web-based businesses, he does not explain his connection with the broadcast and media recruitment sector, any prior experience in that field, or his reasons for entering this particular market.
The Panel is also influenced by the Respondent’s inclusion of a photograph on his website, supposedly of Ian Christian, which is in fact a photograph of another individual taken from the Internet. While the Panel accepts that start-up web businesses frequently use generic and freely-available images, the Respondent has falsely presented a photograph of the supposed principal of the Respondent’s business, when in fact no such person exists and the photograph is of someone else taken from the Internet. The Panel finds this to be a serious misrepresentation to the public, which in itself casts significant doubt upon the bona fides of the Respondent’s website.
In all the circumstances, the Panel considers it significantly more likely than not that the Respondent registered and has used the disputed domain name in order primarily to target the Complainant’s mark and website. Specifically, the Panel infers that the Respondent registered the domain name primarily for the purpose of disrupting the business of the Complainant (paragraph 4(b)(iii) of the Policy) and that by using the disputed domain name, the Respondent has sought to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of his website or services on his website (paragraph 4(b)(iv) of the Policy).
The Panel therefore determines that the disputed domain name has been registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <christi-media.com> be transferred to the Complainant.
The Panel dismisses the Respondent’s claim that the Complainant was brought in bad faith, for example as an attempt at “reverse domain name hijacking”.
Steven A. Maier
Sole Panelist
Date: March 9, 2016