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Cite as: [2003] DRS 909

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DRS Number 00909

Mistral Internet Group Ltd -v- David Pinnegar

Decision of Independent Expert

1. Parties:

Complainant: Mistral Internet Group Ltd
Country: GB

Respondent: David Pinnegar
Country: GB

2. Domain Name:

mistralinternet.co.uk ("the Domain Name")

3. Procedural Background:

The complaint was lodged with Nominet both electronically and in hard copy on 13 March 2003. Nominet validated the complaint on 18 March 2003 and on the same day wrote to inform the respondent of the complaint.

The complaint itself includes as an annex an email dated 8 March 2003 from David Pinnegar to hostmaster@mistral.net, subject "PLEASE ENSURE NO EMAILS ARE BLOCKED TO latroba@mistral.co.uk". This annex will be referred to in this Decision as P1.

Between 18 and 24 March, the following additional documents of substance were submitted to Nominet by the parties and have been supplied to the Expert:

Response letter dated 18 March 2003 from David Pinnegar headed MISTRALINTERNET.CO.UK (both email, timed 16.55, and hard copy) (referred to here as P2).

Additional letter dated 18 March 2003 from David Pinnegar, to be taken as part of his response (email only, timed 21.14) (P3).

Reply from Karl Robinson on behalf of Mistral Internet, dated 20 March 2003 (M1)

Email dated 19 March 2003 from David Pinnegar "separately from my formal response" (P4).

Email dated 20 March 2003 from David Pinnegar including the request "please would you be good enough to add this to my formal reply". (P5).

Copy of email dated 22 March 2003 from David Pinnegar to Karl Robinson (P6).

Copy of email dated 24 March 2003 from Karl Robinson to David Pinnegar in reply to P6 (M2).

The contents of these documents are summarised in section 6 below.

The Informal Mediation Stage took place between 1 April 2003 and 14 April 2003.
On 14 April 2003 Nominet wrote to both parties stating that it had not been possible to resolve the complaint by informal mediation, and inviting the Complainant to refer the matter for an expert decision by 30 April 2003. Nominet received the fee for an expert decision and on 17 April invited Claire Milne to act in the case. On the same day Claire Milne, 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. Her appointment as Expert in the case was dated 28 April 2003.

4. Outstanding Formal/Procedural Issues (if any):

The only potential issue of which I am aware is that it is not entirely clear whether the Respondent intends all of his available correspondence to be regarded as part of his response. P2, P3 and P5 are plainly so intended. I propose also to regard P4 and P6 in this light, since they were sent to Nominet in connection with this case and contain arguments in support of the Response.

5. The Facts:

The facts in this case leading up to the complaint are as follows.

David Pinnegar has been a customer of Mistral Internet since 1995, having used their services both for webhosting and for email. His headed notepaper announces his business as “Computer Doctor Services, Internet Website Architect”. He has no wish to change to another internet service provider because his current email and web addresses are widely disseminated. He objects to certain changes in Mistral’s services which have taken place since a change of management in early 2002. In particular he objects to Mistral’s new Real Time Black Lists approach to spam reduction, and alleges that this is leading to legitimate emails to himself being blocked. David Pinnegar has made his views known to Karl Robinson of Mistral, but continues to be dissatisfied.

Mistral Internet Group Limited is registered at Companies House, with an incorporation date of 17 August 2001. Although previously using other names, there is a continuous history since 1994 of business internet service provision.

On 4 February 2003 the Respondent registered the Domain Name.

On 18 March 2003 the Domain Name led to a “place holder” website with no specific content. (On 30 April 2003 the Domain Name led only to “page cannot be displayed”)

6. The Parties’ Contentions:

The parties’ contentions are summarised below, with reference to the various documents which contain them.

Complainant:

The complaint:

1. Mistral Internet is the recognised trading style of Mistral Internet Group Limited, which has been operating as a business internet service provider since 1994.
2. David Pinnegar is threatening Mistral with legal action and press exposure in relation to their use of Real Time Black Lists for spam reduction, which he alleges is leading to the loss of legitimate emails destined for himself.
3. The annexed email from David Pinnegar (P1) clearly shows his intention to use the Domain Name to attract customers to a website where they will be encouraged to discuss issues with Mistral service.
4. Mistral’s concern is that comments posted on such a forum could be defamatory.
5. Mr Pinnegar has no valid reason for the registration of his domain. There are established industry bodies and discussion forums where he can raise his issue should he wish to do so.

M1:

1. David Pinnegar’s service issues with Mistral are irrelevant to the complaint.
2. There are existing avenues (for example the trade association ISPA) for dissatisfied customers to pursue complaints against internet service providers.)
3. David Pinnegar does not need to take it upon himself to establish a forum for discussion of Mistral services, or to generate interest in this using the Mistral brand.
4. Mistral has no fear of customer comment, however Mistral does object to the use of the company trading style to attract interest to such forums, as use of this domain would indicate that such a forum would be operated or sanctioned by Mistral Internet, which of course it would not be.
5. David Pinnegar’s example of the Rackshack Forum is operated by Rackshack itself.
6. Mistral is not unusual in the industry in lacking such a forum. It does however operate its own procedures for dealing with customer complaints and comments.
7. As well as the shorter (and therefore normally used) domain names [mistral.net, mistral.co.uk, etc], Mistral does own mistral-internet.co.uk and its .com and .net equivalents.

M2:

In addition to its Real Time Black List filtering, Mistral operates its own system for users to report persistent sources of spam. These issues are not relevant to the domain name dispute and Nominet should not be copied this correspondence.

Respondent:

P1 (email from David Pinnegar to Mistral annexed to the complaint):

Includes two lists of recent emails, presumably intended to demonstrate that several messages which should be on both lists are only on the second – that is, that messages which David Pinnegar should be receiving at his Mistral account are being blocked. The main text runs:

Unless you guarantee absolutely that you are not interfering with my receipt of emails, I am contemplating at the very least
1 seeking an injunction against you
2 utilising www.mistralinternet.co.uk as a forum for customer satisfaction
3 publicising your apparent incompetancy throughout the internet press.

P2:

1. The email problem is not the only service issue arising under the new management. Another example is changes in the phone numbers provided for customers to access dial-up service.
2. The new management has not consulted customers about such changes.
3. An online forum for discussion of Mistral services would benefit customers and also, indirectly, Mistral itself.
4. The intention in acquiring mistralinternet.co.uk was to fulfil the public interest objective of providing such a forum.
5. Since the purchase of mistralinternet.co.uk, Mistral staff have taken more care about blocking legitimate business emails.
6. There is no need for Mistral to fear defamation. This would only occur if published comments were untrue, and there is no intention of this.
7. Mistral’s real fear is of public exposure of its inadequacies. This in itself demonstrates the need for the forum. If Mistral service were as it should be, there would be no users of the site.
8. The registration is not abusive and is not cyber-squatting. It is for fair comment, in the public interest and therefore ultimately also in Mistral’s interest.

P3:

1. The Complainant has signed that the complaint is complete; however, the important point made at P2 (5) (and in earlier correspondence) about defamation has been omitted. In addition, the information supplied about its company history is incomplete.
2. There was a year during which Mistral could itself have registered the Domain Name but did not do so.
3. Other companies also use the name Mistral.
4. The complainant has no rights of censorship, so use of a website to publish true comment about its activities is not detrimental to the rights of the complainant.

P4:

Note that Mistral’s website does not currently provide a feedback channel. This could change in the light of the current correspondence.

P5:

1. The customer forum provided by Rackshack (another internet service provider) is a good example to Mistral.
2. Not having access to mistralinternet.co.uk plainly is not causing real problems for Mistral. Alternatives abound – for example, although it could have done so, it has not acquired mistralinternet.com.
3. David Pinnegar has earned the right to run a Mistral customer forum in view of his long-standing loyalty to and support of the company (for example, his own web pages advertise it).

P6:

1. On 12 March Mistral threatened to withdraw David Pinnegar’s service if he continued to draw their attention to areas of potential improvement.
2. A recent spam email (copy included) illustrates the failure of the current method of spam management.
3. The proposed Mistral customer forum could be useful to enable customer input to improved spam management.

7. Discussion and Findings:

Complainant’s Rights

From the evidence supplied by both the Complainant and the Respondent, supported by Nominet’s copy of the Companies House registry entry, I conclude without difficulty that the Complainant has Rights in the identical name mistralinternet. (It is usual to ignore capitalisation and punctuation as these cannot be accurately reproduced in domain names).

Abusive Registration

Nominet’s Dispute Resolution Policy (1) 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.

Despite lengthy discussion of the planned use of this domain name, no evidence has been supplied that it has actually been used to point to any live website. I do not believe that proposed use (even if interpreted as a threat) can amount to “use” in the sense envisaged by (ii) in the above definition. Therefore only part (i) of the definition is relevant in this case.

It is common ground between the parties that the planned use of the domain name is as an independent criticism site for Mistral Internet.

Grounds for abusive registration

The Complainant is not explicit as to why it believes that the registration should be regarded as abusive in the meaning of the Policy. It does not provide evidence of any of the factors mentioned at 3 of the Policy. However, I take its reply M1 together with the original complaint. Two main points are then made, presumably in support of a charge of unfair detriment to the Complainant’s Rights:

- the potential risk of criticism on the site being defamatory;

- the potential risk of the public believing in error that the criticism site was run by Mistral itself.

I agree with Mr Pinnegar that the point about defamation is misguided, because if it occurred it would put the criticism site clearly in the wrong. By the time of M1 Mistral itself has abandoned this line and moved to the alternative potential risk of misleading the public. Of course, any risk can only be hypothetical, as no actual criticism site has been established.

Grounds against abusive registration

I turn to the non-exhaustive list of factors in 4 by which the Respondent may demonstrate that the Registration is not Abusive. The only part which is relevant here is 4b. As the Domain Name is identical to the one in which the Complainant asserts Rights, and the Respondent intends to use the Domain Name for the purposes of a criticism site without the Complainant’s authorisation, the burden shifts to the Respondent to show that the Domain Name is not an Abusive Registration.

I agree with Mr Robinson that Mr Pinnegar’s several points about Mistral’s service are not relevant to the issue of Abusive Registration. I accept Mr Pinnegar’s argument that this is not a blocking registration, but this does not help us since blocking is not alleged. His point about incompleteness of the Complaint is worth noting, but does not in my view invalidate the Complaint (though as I comment below, I feel the Complaint to be weak, and omissions weaken it further). The point that other companies also use the name Mistral is irrelevant, since his own intention relates to the Complainant.

The burden of Mr Pinnegar’s relevant case appears to be that the Registration is not Abusive because his intention is to serve the public interest (and, indirectly, Mistral’s interest) through the proposed criticism site. Again, the cited benefits are hypothetical.

Discussion

Paragraph 9 of the Policy mentions the persuasive value to Experts of Appeal decisions. I therefore refer to the relevant Appeal decision on scoobydoo.co.uk (case 00389). After deliberation, the Panel pronounced as follows:

“In the view of the majority of the Panel, in the context of a tribute site, the vice is in selecting a domain name, which is not one's own name, but which to one's knowledge is identical to the name of another, which one has selected precisely because it is the name of that other and for a purpose which is directly related to that other. For a tribute or criticism site, it is not necessary to select the precise name of the person to whom one wishes to pay tribute or criticise. In this case the domain name could have been 'ilovescoobydoo.co.uk', for example.

Taking the Domain Name in these circumstances arguably amounts to impersonation of the owner of the name or mark.”

I feel that the current case is a finely balanced one.

The argument for abusive registration rests on hypothetical misleading of the public, which even were it to occur would in my view be unlikely to result in any material detriment to the Complainant’s Rights. The likelier detriment is the airing of grievances, rather than anyone’s belief that the company itself is hosting this activity (which belief, as the Respondent points out, could actually be beneficial to Mistral’s reputation).

This argument for abusive registration therefore strikes me as weak. However, 4b plainly applies and shifts the burden to the Respondent to show that the registration is not abusive. Again the case is hypothetical, and rests on a supposed public interest benefit. Further, the Respondent has not argued that this benefit depends on using this particular Domain Name. It might equally be achieved on a website whose name was not identical to the Complainant’s. This defence therefore also strikes me as weak.

The decision therefore hinges on one’s understanding of what is “unfair” detriment. Here I will be guided by the Appeal statement, and thus conclude:

- regardless of the merits or demerits of the services it offers, the Complainant has the right to decide for itself how to conduct its customer relations;

- the Respondent’s proposed use for criticism of an identical Domain Name detracts unfairly from this right, which in turn is detrimental to the Complainant’s Rights. The registration is therefore abusive;

- the Respondent of course retains the right to conduct his planned public interest activities using a Domain Name that does not invite doubt about impersonation.

8. Decision:

The Complainant has Rights in the Domain Name. The intention of the Registration was unfairly detrimental to the Complainant’s Rights. The Registration is therefore Abusive and the Domain Name should be transferred to the Complainant.

Claire Milne

30 April 2003