Before the:
WORLD INTELLECTUAL
PROPERTY ORGANIZATION
ARBITRATION AND
|
Meat
and Livestock Commission Winterhill House |
No. D2003-0645 |
|
-v- |
Disputed Domain Name[s]: |
|
OTC 7 Lower Rock Gardens BN2 1PG |
britishmeat.com britishmeat.org |
________________________________
(Rules, para. 5(b))
[1.] On 20 August, the Respondent received a
Notification of Complaint and Commencement of Administrative Proceeding from
the WIPO Arbitration and Mediation Center (the Center) by e-mail informing the Respondent that an
administrative proceeding had been commenced by the Complainant in accordance
with the Uniform Domain Name Dispute Resolution Policy (the Policy), approved by the Internet
Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, the Rules for Uniform Domain Name
Dispute Resolution Policy (the Rules),
approved by ICANN on October 24, 1999, and the WIPO Supplemental Rules for
Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). The
Center set 15th October as the last day
II. Respondent’s Contact Details
(Rules, para. 5(b)(ii) and (iii))
[2.] The Respondent’s contact details are:
Name: OTC
Address: 7 Lower Rock
Gardens,
Telephone: [+44] (0)1273
699055
Fax: [+44]
(0)207 6919489
E-mail: dave@bltc.com
[3.] The Respondent’s authorized representative in this administrative proceeding is:
David Pearce
[4.] The Respondent’s preferred method of communications directed to the Respondent in this administrative proceeding is:
Electronic-only material
Method: e-mail
Address: dave@bltc.com
Contact: David
Pearce
Material including hardcopy
Method: post
Address: 7 Lower Rock Gardens,
Fax: [+44] (0)207 6919489
Contact: David
Pearce
III. Response to Statements and Allegations Made in Complaint
(Policy, paras. 4(a), (b), (c); Rules, para. 5)
[In completing this Section III., do not exceed the 5000 word limit: Supplemental Rules, para. 10(b). Relevant documentation in support of the Response, should be submitted as Annexes, with a schedule indexing such documents. Case precedents or commentaries that are referred to for support should be referred to with complete citations and, if not voluminous, submitted as Annexes.]
[5.] The Respondent hereby responds to the
statements and allegations in the Complaint and respectfully requests the
Administrative Panel to deny the remedies requested by the Complainant.
This frivolous Complaint is an
abuse of the UDRP.
For the past six years, our
organization has provided information about British meat on our websites. We
have done so under the domain names "britishmeat.com” and "britishmeat.org".
Our web sites reflect the views of British people who are troubled both by the
cruelty endemic to British meat production and the health risks to consumers –
both domestic and global – posed by BSE-infected British meat.
The expression “British meat” to
denote British meat has been in widespread use as a generic and descriptive
term for over two centuries. Thus our website address uses its generic and
descriptive domain name for an aptly generic and descriptive purpose. We are well
aware that the Complainant i.e. the producers’ organization The Meat and
Livestock Commission (“MLC”), seeks to discredit both our ethical stance on
animal abuse and our health-and-safety concerns over British meat. But this
objective does not entitle the MLC to suppress facts and opinions it dislikes
under the (very) thin procedural guise of a domain name dispute.
A. Whether the domain name[s] [is/are] identical or confusingly
similar to a trademark or service mark in which the Complainant has rights;
(Policy, para. 4(a)(i))
Our organization first established its web site on British meat six
years ago in the wake of the succession of scandals that have plagued the
British meat industry over the past two decades. The most logical choice of
domain name for any site on British meat aiming at both a domestic and global
audience was, unsurprisingly, “britishmeat.com” - and perhaps “britishmeat.org”.
Disingenuously (let us mince our words carefully here!),
the MLC claims that we have “deliberately chosen the Complainant’s trade mark
‘British Meat’ for domain names”. [sic] The MLC knows perfectly well that we chose a
generic and descriptive domain name for our website because it was not a
trademark. A more intellectually honest UDRP submission from the Complainant
would have acknowledged this fact explicitly.
On the basis of this submission, we
nonetheless learn that the MLC has acquired – subsequently to our domain
registrations and the launch of our website - a mark that includes the words
“British meat” as part of its design. Unfortunately, the Complainant does not
discuss whether it considers this to be a strong or a weak mark [“the applicant
claims the colours red and blue as an element of the mark”, etc]. But either way, simply including a descriptive
term in widespread use on one’s logo cannot confer any exclusive ownership
privileges over the English words or descriptive phrase in question. Nor can it
confer exclusive rights to use of that term in the namespace. In this case, “british meat” is not an actionable trademark(!)
- it is a generic term and restrictive geographic expression used, not just by
members of the Respondent individually over two decades, but by the parents and
grandparents (sic) of our webmaster throughout much of the last century. We
have used both the term and concept of British meat frequently and
indispensably in the course of campaigning against the animal abuse and reckless
disregard to human health posed by the practices of the British meat industry.
The expression “British meat” has of course also been used freely in common
speech by a large section of the British population since time immemorial, and certainly
since the Act of Union. And at least until now, no one has attempted to usurp
the lawful right to use these words in our website address.
In view of the above, we were
curious to find out why the MLC claims it has somehow acquired exclusive and
overriding rights to a common descriptive term of the English language used to
identify our website. Unfortunately, the Complainant contrives not to use the
expression “generic term” or “descriptive term”- nor any synonyms nor variations
thereof – anywhere in its voluminous submission, a feat of intellectual
ingenuity that recalls the author who once managed to write an entire novel
without using the latter “e” - and a
display of linguistic cleverness surely worthy of a better cause. For if this extraordinary Complaint from the MLC were to succeed, then
its success would set a disturbing precedent: for it would open the floodgates
to a spate of equally mischievous claims from other special interest groups
tempted by the ruse of sticking common English terms on their logos and filing
claims under the UDRP in order to disrupt long-established websites.
It may be recalled here too that
our own website’s logo (coloured red, black and white) bears no significant resemblance
to the logo used by the MLC. No one is likely - whether reasonably or
unreasonably - to be confused by their respective designs. Indeed quite the
reverse: any conceivable confusion sown by their design would have defeated our
website’s purpose. If the MLC’s logo and public image have become tarnished – a
fact we are wholly prepared to accept - then the MLC’s ongoing PR problems stem
not from the content of our websites, nor from our logo, and certainly not from
our generic website address, but are due instead to the number of people who
have fallen sick and died as a result of eating the British meat which the
Complainant seeks to promote.
B. Whether
the Respondent has rights or legitimate interests in respect of the domain name[s];
(Policy, para. 4(a)(ii))
Every British citizen has a strong
and direct interest in the health and safety of the food he or she eats. Every
British citizen has - or ought to have - a strong and direct interest in the (un)ethical ways that his or her food is produced. Thus if
any British citizen, or any group of citizens, seeks to express this legitimate interest by running
a website on British meat they are surely
entitled to do so – and to choose a suitably generic and descriptive web site
address to match.
In this particular context, any
person or organization dissatisfied with the content of existing sites on
British meat is entitled to register and set up a web site on, say, the (currently
unregistered) domain “britishmeat.info”- and publish information, news and perspectives on the health and moral issues at
stake reflective of that domain name. No producers’ cartel, and certainly not
the MLC, can expect to buy up relevant parts of the English language from the
namespace in a bid to preempt criticism of its abusive practices.
In its submission, the
Complainant charges that we “offer no bona fide goods and services” i.e. we aren’t trying to sell anything or to make
money out of anyone. But if providing information about British meat to the
public, both at home and abroad, does not count as providing a bona fide service, then it is hard to know
what action could fall under such a
category. And if we may be blunt: unlike the goods and services promoted by the
MLC, the Respondent hasn’t killed or poisoned anyone.
We had hoped the MLC would address
these issues in its submission. Disappointingly, the MLC alleges instead that we
have “no legitimate interest” in British meat. We find this claim incredible. To
suggest that the Respondent is not entitled to its long-standing interest in
the ethics of British meat production, and should thereby be debarred from
using this generic and descriptive term to reflect our interest in our website
address, is grotesque.
Yet what if we are mistaken? What
if the words “british meat” in the namespace really
could be owned exclusively by one organization? This is the allegedly
“overriding” right that the MLC now arrogates to itself in its submission. Somewhat
against our better judgment, we will now briefly explore the implications of
the view that any one sectional group can own the expression, or own all domain
names containing the expression, “british meat”. If
this premise were true – and further, if ownership rights in the namespace are
reckoned a function of “legitimate interest” - then those with the greatest
stake in British meat are presumably either:
(1) the animals raised
and butchered to make it;
(2) the consumers who
eat it;
and/or
(3) the
producer industry that sells and markets its products.
On this basis, is the MLC’s claim to exclusive
use of the generic term “British meat” in the namespace in any way superior to
ours?
We would argue that the MLC’s
claim manifestly fails.
1] Animals.
Not even
the MLC would claim it represents interests of non-human animals. The MLC
promotes their factory farming and slaughter for profit. Its remit under the
1967 Agriculture Act describes its function as “promoting greater efficiency in
the production of livestock by any means” [see Section 1.1; italics added by Respondent]. This chilling phrase
hides a quite appalling history of cruelty and animal abuse. Our own record of campaigning
against animal abuse may well be ineffectual; but our devotion to animal
welfare is not, as far as we know, in question.
2] Consumers.
The MLC is an unelected, government-appointed
QUANGO. Its remit under the 1967 Agriculture Act calls merely for the MLC to
“take account of” and “have regard to” the interests of consumers. This
astonishingly weak proviso has played a significant role in first creating, and
then prolonging, the BSE crisis and the succession of scandals and cover-ups
that have beset the British meat industry – and the massive growth in
vegetarian and cruelty-free vegan lifestyles to which MLC-inspired health
crises have contributed. The MLC apparently believes our own efforts to alert
prospective victims of the risks posed to consumers both in
3] Producers.
The MLC purportedly represents
the interests of livestock farmers. Unfortunately, under the MLC’s stewardship the
British meat and livestock “industry” has - by its own frequent avowals –
undergone multiple catastrophes and now been brought to its knees. By contrast,
if the frantic warnings of health campaigners and medical scientists had been
heeded earlier, then the British meat and livestock industry wouldn’t be in the
dismal state it’s in today.
We would nonetheless like to reiterate
here our doubts over whether any
of these considerations are relevant in the context of the UDRP. The expression
“british meat” - and the legitimate interest in
British meat this term expresses - cannot be owned exclusively by anyone. It does
not belong to the MLC.
C. Whether the domain name[s]
[has/have] been registered and [is/are]
being used in bad faith.
Accusations of “bad faith” leveled by an organization guilty of such deceptive advertising display a truly breathtaking effrontery. Whether glossy MLC images of “the recipe for love”, “try and little tenderness” [etc] capture the cruelties of factory farming and slaughterhouse killing better than our own websites might charitably be described as unproven.
For the past two decades, we have campaigned against the unethical suffering and cruelty involved in British meat production. We have also attempted to raise awareness of the health hazards posed to consumers posed by British meat. Needless to say, these abuses are not confined to the British meat industry, though its catalogue of horrors provides the focus of our website
Disappointingly, the MLC does not recognise our right to campaign either for the welfare of farm animals or for the consumers of British meat, or at least not under that description in the namespace. Instead, the MLC chooses to impugn our sincerity and good faith in running a web site tackling these issues.
We cannot now explore the variety of original ways the Complainant’s legal representative seeks to challenge our good faith – though we do acknowledge the dazzling virtuosity with which the MLC’s representative handles his impossible brief. So here we will choose just one example.
The MLC makes great play of how searchers wanting to find out more about British meat by querying “British meat” into a search engine will find results from our website as well as pages from the MLC. Yet this diversity of viewpoints is surely welcome in a free society. Google is rightly recognized as the world’s leading search engine. One reason our website’s pages score so prominently in its search algorithms is that different sections of our website have received multiple and unsolicited independent listings in Google’s associated Directory. Google’s directory editors – presumably lacking any ideological axes to grind – have independently recognized the moral seriousness of both the health-and-safety and animal cruelty issues raised by our website on British meat. Alas moral questions are ignored altogether by the MLC website. The MLC does not discuss the option of a cruelty-free diet at all. Nor, sadly, does the MLC site discuss the welfare of our sentient fellow creatures whose butchery it promotes - except insofar as it impacts on the profits of producers.
We
are not – nor do we pretend to be - experts in intellectual property law. Nor
can we afford the services of legal counsel to put our case as compellingly as
it deserves. But in view of the abusive nature of the MLC’s Complaint, we would
ask the panel to consider a verdict of attempted reverse domain name hijacking
of the worst and most disruptive kind.
IV. Administrative Panel
(Rules, paras. 5(b)(iv) and (b)(v) and para. 6; Supplemental Rules, para. 7)
[6.] The
Respondent elects to have the dispute decided by single-member Administrative Panel
V. Other Legal Proceedings
(Rules, para. 5(b)(vi))
[ ] [none]
[7.] A copy of
this Response has been sent or transmitted to the Complainant on 14the October 2003
[8.] This Response is submitted to the Center in electronic form (except to the extent not available for annexes), and in four (4) sets together with the original.
(Rules, para. 5(c); Supplemental Rules, Annex D)
[ ] [If
relevant, state: “In view of the
Complainant’s designation of a single-member Panel and the Respondent’s
designation of a three-member Panel, the Respondent hereby submits payment in
the amount of USD (amount)
by (method)”.]
[9.] The Respondent agrees that, except in respect of deliberate wrongdoing, an Administrative Panel, the World Intellectual Property Organization and the Center shall not be liable for any act or omission in connection with the administrative proceeding.
[10.] The Respondent certifies that the information contained in this Response is to the best of the Respondent’s knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under the Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.
Respectfully submitted,
David Pearce, OTC.
[Name/Signature]
Date: