Al Fayed domain name goes back to Harrods

In a recent Expert Determination under the Dispute Resolution Service (the “DRS”), operated by Nominet, the internet registry for .uk domain names, the Expert ruled that the domain name “fayed.co.uk” should be transferred to Harrods Limited.

Acting on behalf of Mr Mohamed Al Fayed, the well-known Egyptian owner of the famous Harrods department store in Knightsbridge, Harrods submitted a complaint on 29 January 2009 under the Nominet DRS against the registrant, “Ahmed Fayed”, requesting that the domain name be transferred to them. The parties had attempted mediation under the DRS, prior to the Expert Determination, but this had failed leaving the dispute to be determined by an Expert.

At the date of filing the complaint, the fayed.co.uk domain name had only recently been transferred to “Ahmed Fayed” with the identity of this individual later becoming part of the dispute. Initial correspondence had been with Mr Chris Holland and Mr Ronnie Davis t/a DreamCatcher, the original registrant, who had transferred the Domain Name to “Ahmed Fayed” after Harrods had sent its letter before action.

In its complaint, Harrods alleged that “Ahmed Fayed” had no rights in respect of the domain name and that the registration of the domain name was an abusive registration. To illustrate these points, Harrods provided evidence of the trade marks owned by Mr Al Fayed (e.g. for MOHAMED AL FAYED) and other websites registered by Mr Al Fayed featuring the “Fayed” name. The fayed.co.uk domain name was registered in 2004, long after the trade marks and other domain names had been registered and used by Harrods and Mr Al Fayed.

In relation to the suggestion that the registration of the domain name was an abusive registration, Harrods referred to a letter they had sent to the original registrant (before the complaint was submitted) asking for the domain name to be transferred. At the time of the letter, the website www.fayed.co.uk displayed sponsored links relating to Harrods, Mohamed Al Fayed, Dodi Fayed and various stories concerning Princess Diana. In response to the letter, Chris Holland (one half of the original registrant), sent an email to Harrods which stated: “Although we would have loved to have been able to simply donate this domain to your truly dreadful and odious client I regret to inform you that we have recently sold this domain”.

The domain name was transferred to “Ahmed Fayed” with the address given as a PO Box in Spain, near to what was claimed to be the original registrant’s residential address. The website was changed to feature defamatory and inappropriate sponsored links under such headings as “Egyptian Child Molesters”, “Egyptian fraudsters” and “Egyptian Conspiracy Theorists”.

In its complaint, Harrods alleged that “Ahmed Fayed” was a made up name and a false identity. It was argued that it was inconceivable that, four days before a complaint was launched, an own name registrant could obtain a transfer of the domain name and use their own name as a defence to the complaint. Similarly, it was argued that it was inconceivable that an own name registrant would host such offensive and inappropriate sponsored links.

In response, “Ahmed Fayed” claimed that he had shown a copy of his passport to Mr Holland’s secretary when purchasing the domain name and that Harrods’ points were irrelevant as he intended to operate the domain name as a family website. He also claimed that, as his surname was “Fayed” it exactly corresponded with the domain name, whereas “Al Fayed” did not.

In deciding against “Ahmed Fayed” and awarding a transfer of the domain name to Harrods, the Expert acknowledged that the invention of an alter ego was a common tactic used in the domain name community. He found on the balance of probabilities the “Ahmed Fayed” was not a real person and therefore had no legitimate claim to the domain name. The Expert stressed that it was conceivable that the domain name could have been owned and operated legitimately by a party independent of Harrods/Mr Mohamed Al Fayed (e.g. in a non-commercial manner or by someone who truly had the name “Fayed”). However, in this case, the domain name was clearly registered for profit and not by anyone with a legitimate interest in using it.

The Expert concluded that knowingly taking advantage of the rights of another party, without their permission, and using their reputation to obtain financial gain was always going to be viewed as unfair and that on the balance of probabilities that was the situation in this case. The Expert also noted that the headings of the tabs put up by Mr Holland were clearly “Abusive” in the ordinary meaning of the word as well as the meaning given to it by Nominet’s DRS policy.

This decision illustrates that Nominet DRS experts are wise to the tactics used by domainers (i.e. those persons selling domain names on the secondary market) to claim legitimate rights to use domain names. In this case the Expert was able to cut through all of the tactics of the original registrant and the abusive communications to focus on the key issue, namely was the registration of the domain name in the hands of the original registrant (or “Ahmed Fayed”) an abusive registration.

It is standard to write a letter of claim to a domain name registrant before commencing Nominet DRS or UDRP proceedings. However, until such proceedings are commenced (and a restriction is placed on transfers), there is always a risk that the domain name will be transferred to a third party. If there is a significant concern that this will happen and the domain name is valuable, or if it will be more difficult to proceed against a third party rather than the existing registrant, it is always worth considering commencing proceedings before contact is made with the registrant of the domain name.

The full decision of the Expert is available here.