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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

The Complainant is Roy Harper, Ireland.

The Respondent is The Reprahduce Company, 844 S. Robertson Blvd, Los Angeles, CA 90035, U.S.A.

The Domain Name is <royharper.com>.

The Registrar is Network Solutions Inc.

The Complaint was received by WIPO by email on May 12, 2001 and in hardcopy form on May 15, 2001. WIPO issued a Deficiency Notification on May 17, 2001 and on the same day the Complainant rectified the deficiency. WIPO has verified that the Complaint satisfies the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.

The Complaint was properly notified in accordance with the Rules, paragraph 2(a). The Registrar has confirmed that <royharper.com> ("the Domain Name") was registered through Network Solutions Inc and that The Reprahduce Company ("the Respondent") is the current registrant. The Registrar has further confirmed that the Policy is applicable to the Domain Name.

On May 18, 2001 WIPO notified the Respondent of the Complaint in the usual manner and informed the Respondent inter alia that the last day for sending its Response to the Complainant and to WIPO was June 6, 2001. No Response was received.

On June 8, 2001 WIPO issued a Response Default Notification.

The Panel was properly constituted. The undersigned Panelist submitted a Statement of Acceptance and a Declaration of Impartiality and Independence.

No further submissions having been received by WIPO, the date scheduled for the issuance of the Panel’s Decision is July 1, 2001.

The Complainant is a professional musician who has for many years performed and continues to perform under his own name, Roy Harper. He has issued many recordings of his work, for which there is a continuing demand.

The Respondent is a company, which from the exhibits (not the body of the Complaint) appears to be a company run by the Complainant’s son, Ben Harper. The uncontested evidence of the Complainant is that about 6 years ago the Respondent in the person of Ben Harper offered to set up a website for the Complainant. Since the setting up of the website much (if not all) of the Complainant’s business in the promotion and sale of the Complainant’s sound recordings has been conducted through the website. The Domain Name connects to the website at www.royharper.com. The Complainant has always regarded the website as his website and until recently did not know that the Domain Name was registered in the name of the Respondent rather than himself.

The relationship between the parties has broken down and the Complainant’s business conducted through "his" website is now being seriously adversely affected. There are faults in it, which the Respondent cannot or will not rectify, but while the Domain Name is in the hands of the Respondent the Complainant can do nothing about it.

A. Complainant

The Complainant contends that the Complaint should succeed for the following reasons:

- The Domain Name is identical to the Complainant’s name and common law/unregistered trade mark, Roy Harper, under which he has traded since 1964.

- The Respondent has no rights or legitimate interests in respect of the Domain Name. It is the Complainant’s name. The Respondent has never used it other than for the benefit of the Complainant.

- The Domain Name was registered in bad faith and is being used in bad faith. The Domain Name was registered exclusively for the benefit of the Complainant. The Complainant only countenanced the Respondent’s original proposal because he thought that everything to do with the website (including the Domain Name) was in his control. The Respondent will have known that. In now blocking/impeding the Complainant’s ability to trade the Respondent is acting in bad faith. The Complainant’s business is suffering badly as a result.

The Respondent has not responded.

According to paragraph 4(a) of the Policy, the Complainant must prove that

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

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

(iii) The Domain Name has been registered and is being used in bad faith.

The Complainant’s trade mark rights in his own name, which is his trading name and common law trade mark, are clear. The Domain Name comprises the trade mark and the generic <.com> suffix.

The Panel holds that the Domain Name is identical to a trade mark in which the Complainant has rights.

The Respondent has not disputed the Complainant’s claim that the Domain Name is the Complainant’s name and that it identifies the Complainant and no other. The Respondent has made no attempt to demonstrate whether by reference to paragraph 4(b) of the Policy or otherwise that it has rights or legitimate interests in respect of the Domain Name.

The Panel finds that the Respondent has no rights or legitimate interest in respect of the Domain Name.

This case is not straightforward. While there can be no doubt that the Respondent’s failure to enable the Complainant to rectify the faults on the website connected to the Domain Name constitutes bad faith use of the Domain Name, there is no clear cut evidence in this case that the Respondent registered the Domain Name in bad faith.

However, the Complainant has asserted that when he consented to the Respondent setting up the website for him, he naturally assumed that the website was under his control. The matter of the Domain Name was not mentioned, but that was a detail, which the Respondent would have known the Complainant would have been unfamiliar with. In the absence of any Response contesting the Complainant’s version of events the Panel finds that at all material times the Respondent knew that the Complainant’s consent was conditional upon the Complainant retaining complete control over the website (including the Domain Name to which it was to be connected). Accordingly, the Respondent’s act in registering the Domain Name in his name rather than in the Complainant’s name constituted bad faith registration of the Domain Name.

As indicated above the Respondent’s refusal/failure to co-operate with the Complainant to rectify the site to enable the Complainant to conduct his business under his own name and by means of the Domain Name manifestly constitutes bad faith use of the Domain Name within the meaning of paragraph 4(a)(iii) of the Policy and the Panel so holds.

In the result the Panel finds that the Domain Name was registered in bad faith and is being used in bad faith.

In light of the foregoing findings, namely that the Domain Name is identical to a trade mark in which the Complainant has rights and that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered in bad faith and is being used in bad faith, the Complaint succeeds.

The Panel directs that the Domain Name <royharper.com> be transferred to the Complainant.

Tony Willoughby
Sole Panelist

Dated: July 1, 2001