Briscoe v Rodenberg, Court of Appeal - Nominet UK Dispute Resolution Service, September 23, 2008, [2008] DRS 5718

Resolution Date:September 23, 2008
Issuing Organization:Nominet UK Dispute Resolution Service
Actores:Briscoe v Rodenberg
 
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13121010367Nominet UK Dispute Resolution ServiceDRS Number 5718Constance BriscoeandJeroen RodenbergDecision of Independent Expert1. Parties: Complainant: Ms Constance BriscoeCountry: GBRespondent: Jeroen RodenbergAddress: Ter Haarstraat 31a Amsterdam 1053 LHCountry: NETHERLANDS 2. Domain Name:constancebriscoe.co.uk3. Procedural Background:The complaint was filed on 12/05/2008 and hardcopies with the exhibits were received on 13/05/2008. Details of the complaint were sent to the Respondent on 14/05/2008. On 06/06/2008 a non-standard electronic response was received from the Respondent by email which was forwarded on to the Complainant on the same day. No reply was received from the Complainant. Mediation was unsuccessful and on 02/09/2008 the Complainant paid the fees to refer the matter for adjudication by an appointed expert. On 04/09/2008 I was selected as the expert.4. Outstanding Formal/Procedural Issues (if any):New revised versions of the Nominet Dispute Resolution Service (DRS) Policy and Procedure came into force on 29 July 2008. However, as this complaint was filed before that date, the previous Policy and Procedure apply. Any references I make to the Policy and Procedure are to that previous version. The Respondent's response did not comply with the Procedure, and in particular paragraph 5 v. which states that:[The response shall] conclude with the following statement followed by the signature of the Respondent or its authorised representative:-"The information contained in this response is to the best of the Respondent's knowledge true and complete and the matters stated in this response comply with the Procedure and applicable law."Paragraph 15 c. of the Procedure states:If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure or any request by us or the Expert, the Expert will draw such inferences from the Party's non compliance as he or she considers appropriate.However, despite the lack of confirmation that the Respondent's response is, to the best of his knowledge "true and complete", I have not drawn any adverse inference from that failure and I have not taken it into account in arriving at my decision. 5. The Facts:The Complainant is a barrister and part time judge. She is also a published author, having written an autobiography, entitled "Ugly", that recounted her abusive childhood and upbringing. It was published in January 2006 and became a best seller. A second book has recently been published entitled "Beyond Ugly".After the publication of the Complainant's first book, the Respondent registered the Domain Name, constancebriscoe.co.uk, on 25 May 2006. At that time, the Respondent was a tenant of the Complainant living in her property in London. The Domain Name resolves to a website operated by the Respondent that relates to the Complainant and which contains articles and stories about her life, reviews of her books, an online shop where her books can be purchased, and a "guestbook" where visitors to the website can leave their comments and messages. The website also carries a number of changing "Google Ads" with the usual links to the third party websites. The website is entirely independent of the Complainant in the sense that it is not in any way controlled, contributed to or authorised by her.6. The Parties' Contentions:Complainant:In summary the Complainant says that:· The Complainant has a right to the Domain Name because it is her name and has been since birth. · The Complainant's website is www.constancebriscoe.com and the Respondent has, quite deliberately, registered a similar domain name with the intention of selling the Domain Name to her. He has repeatedly attempted to sell the Domain Name to her for several hundred pounds. · Since the publication of the book "Ugly" in 2006 the Respondent "registered the domain name and set himself up as me ... by registering my name and advertising by (sic) books and CD's on his site." He did so in order to take advantage of the Complainant's name and to prevent her from using her own name and confusing those who visit the website. · Many of the job offers for TV work intended for the Complainant are sent to the Domain Name and received by the Respondent. The emails make it clear that the senders believe that they are contacting the Complainant. The entire presentation of the website is designed to confuse users into believing that they are contacting the Complainant and she has missed out on potential job offers because the Respondent has kept the emails. The Respondent has attempted to blackmail the Complainant by suggesting that if she wanted the emails in relation to job offers that she would have to buy the Domain Name off him for several hundred pounds. · Every email that has been received on the site was intended for the Complainant and all the senders of the emails had assumed that they are contacting the Complainant as every email starts with "Dear Constance". · The Respondent has traded as the Complainant and is making money at her expense. He has a number of adverts, links, and a shop, information and reviews all about the Complainant and it is all designed to confuse the user. · The Complainant's reputation has been harmed and she has suffered financially by the Respondent continuing to give the impression that the website is linked to her and by users being continually confused because those who have contacted the site are expecting a response from the Complainant. · The Respondent has given false information about himself. He claims that he is a UK individual but he is in fact resident in Amsterdam. Respondent:In summary the Respondent says that:· The Respondent registered the Domain Name in May 2006 which then became part of his domain name portfolio to generate income via advertisements. At the time he was living at the Complainant's address as her tenant and as a permanent UK resident. He has never given false information about himself.· The Respondent did not register the Domain Name with the purpose of selling it. He owns many domain names which all generate income via advertisements. The sole intention of the Domain Name was to make money via advertising. He tried to attract visitors by getting a high Google ranking and creating an informative website.· The Respondent set up the website as a fan website. Under no circumstance has he ever set himself up as being the Complainant. The website is clear. At the front page it is advertising her new book ``beyond Ugly'' with the slogan ``buy HER new book now'' and not with...

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