Roy Harper v. Ben Harper; The Repradhduce Co.

WIPO Arbitration

and Mediation Center

ADMINISTRATIVE

PANEL DECISION

Roy Harper

v The Reprahduce Company

Case No.

D2001-0647

1. The Parties

The Complainant is Roy

Harper, Ireland.

The Respondent is The Reprahduce

Company, 844 S. Robertson Blvd, Los Angeles, CA 90035, U.S.A.

2. The Domain Name and

Registrar

The Domain Name is <royharper.com>.

The Registrar is Network

Solutions Inc.

3. Procedural History

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.

4. Factual Background

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.

5. Parties’ Contentions

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.

B. Respondent

The Respondent has not

responded.

6. Discussion and Findings

General

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.

Identical or confusing

similarity

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.

Rights or legitimate interest

of the Respondent

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.

Bad Faith

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.

7. Decision

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