WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

The Sydney Children’s Hospitals Network (Randwick and Westmead) (incorporating the Royal Alexandra Hospital for Children) v. Louise Adams

Case No. DAU2019-0023

1. The Parties

The Complainant is The Sydney Children’s Hospitals Network (Randwick and Westmead) (incorporating the Royal Alexandra Hospital for Children) of Australia, represented by Ashurst, Australia.

The Respondent is Louise Adams, Australia, self-represented.

2. The Domain Name and Registrar

The disputed domain name <fasttracktrial.com.au> (the “Disputed Domain Name”) is registered with Web Address Registration Pty Ltd.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 2, 2019. On August 2, 2019, the Center transmitted by email to Web Address Registration Pty Ltd a request for registrar verification in connection with the Disputed Domain Name. On August 5, 2019, Web Address Registration Pty Ltd 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 .au Dispute Resolution Policy (the “Policy”), the Rules for .au Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au 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 August 8, 2019. In accordance with the Rules, paragraph 5(a), the due date for Response was August 28, 2019. The Response was filed with the Center on August 28, 2019.

The Center appointed John Swinson as the sole panelist in this matter on September 17, 2019. 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.

4. Factual Background

The Complainant is The Sydney Children’s Hospitals Network (Randwick and Westmead) (incorporating the Royal Alexandra Hospital for Children), a New South Wales State Government Entity with its principal places of business at Westmead and Randwick, Australia. The Complainant is a service of NSW Australia and is the largest paediatric health entity in Australia.

In February 2018, the Complainant began the Fast Track to Health Clinical trial (“Fast Track Trial”), which has been funded by the National Health and Medical Research Council (“NHMRC”) and approved by the Complainant’s Human Research Ethics Committee (“HREC”). The Fast Track Trial is a research study for overweight adolescents.

The Complainant has also been the owner of a “.com” domain name which is identical to the Disputed Domain Name, being <fasttracktrial.com>, since May 2, 2017.

The Respondent is Louise Adams, an individual of Australia. The Respondent is a clinical psychologist and the founder of UNTRAPPED, a program that “guides you to live without restrictive dieting and diet-think, to enjoy intuitive and natural eating, to embrace meaningful and joyful movement, and to nurture a truly respectful and caring relationship with your body”. The Disputed Domain Name was registered on May 20, 2019. At present, the Disputed Domain Name resolves to a website which contains information on and criticises the Fast Track Trial.

5. Parties’ Contentions

A. Complainant

The Complainant makes the following submissions.

Identical or Confusingly Similar

The Complainant has rights in the name FAST TRACK TRIAL because this is the business or trading name under which the Complainant is authorised by the Australian Government’s NHMRC to operate and offer clinical trial services, and is therefore a name in which the Complainant has rights for the purposes of the Policy.

The Complainant has operated a website at <fasttracktrial.com> since May 2, 2017 (the “Complainant’s Website Name”).

The name “Fast Track to Health” is a truncated version of the public and scientific name of the Fast Track Trial in which the Complainant has rights, and the Fast Track Trial is regularly referred to and known as FAST TRACK TRIAL.

The Disputed Domain Name is identical to the FAST TRACK TRIAL name and the Complainant’s Website Name.

Rights or Legitimate Interests

Registration is not evidence of any rights or legitimate interests in a domain name. The Respondent does not have a close and substantial connection to the Disputed Domain Name as required by clause 2(c) of Schedule C of the Domain Name Eligibility and Allocation Policy Rules for the Open 2LDs, as the Respondent has no official connection with the Fast Track Trial.

The Respondent cannot demonstrate that the Disputed Domain Name is used or will be used in connection with a bona fide offering of services. Any use of the Disputed Domain Name has not been legitimate or bona fide because it has been in breach of the Complainant’s rights. The Respondent is using the Disputed Domain Name for commercial gain by creating a likelihood of confusion with or to otherwise tarnish the Fast Track Trial and divert potential participants to the Respondent’s own UNTRAPPED program for a commercial gain.

The Respondent does not have any trade marks or company or business names for FAST TRACK TRIAL or any common law rights. It is inconceivable that the Respondent was not aware of the Complainant’s rights and reputation in FAST TRACK TRIAL as the Respondent made a formal complaint to the HREC on November 5, 2018, which expressed concern that the Fast Track Trial could trigger eating disorders. The Respondent was under an obligation to ensure its registration did not violate the rights of any other entity.

Registered or Used in Bad Faith

The Respondent registered the Disputed Domain Name primarily for the purpose of disrupting the business and activities of the Complainant, including the Fast Track Trial, by including disparaging comments.

By using the Disputed Domain Name, the Respondent intentionally attempted to attract for commercial gain, Internet users to the Disputed Domain Name, by creating a likelihood of confusion with the FAST TRACK TRIAL name.

The Complainant has a strong reputation and rights in the Fast Track Trial, the FAST TRACK TRIAL name and the Complainant’s Website Name, in Australia and particularly in the health industry. It is inconceivable that the Respondent was not aware of these rights. The Respondent was also in breach of Policy Rule 5.1 at the time of registration.

The Respondent has not conducted any legitimate commercial or noncommercial activities on the website at the Disputed Domain Name.

B. Respondent

The Respondent makes the following submissions.

Identical or Confusingly Similar

The name FAST TRACK TRIAL is not a name for the purpose of the Policy.

The public title of the clinical trial is “Fast Track to Health”.

Rights or Legitimate Interests

The Respondent is offering bona fide services, namely:

- free parent information evenings;
- open public dialogue;
- teaching the community about the risks of the Fast Track Trial;
- presenting events about the Fast Track Trial;
- making valuable contributions through complaints to the HREC; and
- an online petition in opposition to the Fast Track Trial with over 25,000 signatures.

The Respondent’s name has become associated with the Disputed Domain Name. The Respondent has a close and substantial connection with the Disputed Domain Name – as a citizen of Australia, a health professional, and a believer in free speech, to express views.

The Respondent is not making illegitimate use for commercial gain, and in fact has spent several thousand dollars. The Respondent’s business is targeted at adults, not adolescents.

Any person who visits the Disputed Domain Name can clearly see the information is a protest against the Fast Track Trial, and is not affiliated or endorsed by the Complainant.

Registered or Used in Bad Faith

The Respondent has not distributed inaccurate information about the Fast Track Trial, only views that are in disagreement with the Complainant’s views.

There is only one hyperlink to the Respondent’s personal website, which sends a reader to a blog post on that website about the Fast Track Trial. The Respondent’s personal website, “UNTRAPPED”, details Respondent’s professional services and online program; the Respondent’s “UNTRAPPED” program is not suitable for or aimed at adolescents. With regards to the Disputed Domain Name, the Respondent’s protest against Fast Track Trial is not about the Respondent’s commercial success. The Respondent has not profited nor aimed to profit from its public service. At no point does the website at the Disputed Domain Name encourage anyone to purchase “UNTRAPPED”.

There is no misleading of the public. On Google, the accompanying statement to the Disputed Domain Name clearly states that it is a campaign to stop the Fast Track Trial. A user of the website could not be confused and would not mistake the website for a clinical trial registration site. The Respondent is not posing as the Complainant.

Legitimate activities (free public education, free events etc.) are being conducted at the Disputed Domain Name.

6. Discussion and Findings

To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:

(i) the Disputed Domain Name is identical or confusingly similar to a name, trade mark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and

(iii) the Disputed Domain Name has been registered or has subsequently been used in bad faith.

The onus of proving these elements is on the Complainant.

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to a name, trade mark or service mark in which the Complainant has rights.

The Complainant does not have a registered or pending trade mark for FAST TRACK TRIAL or a similar mark.

The Panel considers that the name of the clinical trial run by the Complainant is not a name for the purposes of paragraph 4(a)(i) of the Policy. According to Note 1 accompanying this paragraph, a name refers to:

- a company, business or other legal or trading name, as registered with the relevant Australian government authority; or
- a personal name.

The name of a clinical trial, even one that is registered with the NHMRC, does not meet this definition. Generally speaking, a name is a word or a series of words of legal significance used to identify a thing, such as a person or a legal entity or a product or a place (see Multi-National Concepts Pty Ltd v. 1300 Directory Pty Ltd, WIPO Case No. DAU2009-0002). There does not appear to be anything in the National Health and Medical Research Council Act 1992 (Cth) that indicates that legal rights are granted in the public title or scientific title of a trial that is funded by the NHMRC. The Panel considers that it would be an unusual result if part of any clinical trial title could constitute a “name” under the Policy.

Even if the Panel were to accept that this is a name for the purposes of the Policy, the name of the clinical trial is not “Fast Track Trial”, but rather (as set out in the Trial Review provided by the Complainant):

- “Fast Track to Health. The effect of a modified alternate day fasting dietary pattern on weight loss and wellbeing among young people above a healthy weight” (the “Public Title”); and

- “Fast Track to Health. The alternate day fasting diet on weight loss and well-being in adolescents with obesity: a randomised controlled trial” (the “Scientific Title”).

The difficulty for the Complainant in this case is that it has not put forward sufficient evidence that FAST TRACK TRIAL is recognised as a name (or identifier or label) for a legal entity or any other thing, or as a trade mark for any goods or services.

The Complainant also refers to its website at <fasttracktrial.com>. As stated at paragraph 1.7 of the auDA Overview of Panel Views on Selected auDRP Questions First Edition (“auDA auDRP Overview 1.0”), operating a website and using that website in connection with a business is not necessarily sufficient to establish rights under the Policy. It is possible that the Complainant could have established that FAST TRACK TRIAL is a common law or unregistered trade mark belonging to the Complainant. However, the Complainant did not make any submissions to this effect or provide sufficient (if any) evidence of the extensive use of FAST TRACK TRIAL by the Complainant such that it had become a distinctive identifier associated with the Complainant or its clinical trial (see paragraph 1.7 of auDA auDRP Overview 1.0).

As the Complainant has failed on the first element of the Policy, this Panel is not required to address the second and third elements of the Policy.

B. Registration or Use in Bad Faith

Even if the Panel had found that the Complainant had rights in a name or a trade mark for the purpose of the first element, the Complaint would have failed on the third element of the Policy. The Panel considers that the Complainant has not established that the Respondent registered or used the Disputed Domain Name in bad faith.

The Complainant submits that:

- the Respondent registered the Disputed Domain Name primarily for the purpose of disrupting the business or activities of the Complainant (paragraph 4(b)(iii) the Policy); and

- the Respondent intentionally attempted to attract, for commercial gain, Internet users to a website or other location, by creating a likelihood of confusion with the Complainant’s name or marks as to the source, sponsorship, affiliation, or endorsement of that website or location or of a product or service on that website or location (paragraph 4(b)(iv) the Policy).

The Respondent’s conduct does not fall neatly within the above paragraphs of the Policy as cited by the Complainant. While it cannot be said that the website at the Disputed Domain Name is entirely noncommercial (given the link to the Respondent’s own professional services), the Panel accepts the Respondent’s submission that she registered and is using the Disputed Domain Name to provide information regarding the Respondent’s belief as to risks associated with the Complainant’s clinical trial. The content at the Disputed Domain Name supports the Respondent’s contentions.

The Panel is not in a position to assess the truth or otherwise of the assertions regarding the clinical trial made on the website at the Disputed Domain Name. However, in this case, the Panel considers that the Respondent’s registration and use of the Disputed Domain Name lacks the indicia of bad faith that can be associated with attempts at cybersquatting disguised as fair use.

The Panel considers that use of the Disputed Domain Name is not primarily to disrupt the business or activities of the Complainant, but to provide the Respondent’s legitimately held views as to risks associated with the Complainant’s clinical trial.

The Complainant has also not established a bad faith effort by the Respondent to intentionally attract Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant. The Disputed Domain Name is not identical to “Fast Track to Health. The effect of a modified alternate day fasting dietary pattern on weight loss and wellbeing among young people above a healthy weight” (being the name of the clinical trial). It is unlikely that anyone could confuse the source of the Respondent’s website once they arrive at the Respondent’s home page, which clearly states, “Stop the Fast Track Trial” and contains material critical of the Complainant and its program.

Criticism alone does not automatically equate to bad faith.

Given the Panel’s finding on bad faith, there is no need for the Panel to address the second element of the Policy.

7. Decision

For all the foregoing reasons, the Complaint is denied.

John Swinson
Sole Panelist
Date: October 10, 2019