The 2nd Submission of Complainant does not refute the points made in the response of Respondent

In the Response of Respondent, it was pointed out that Complainant has failed to sustain its burden of proof of the three elements that must be proven by Complainant in order to justify a decision to transfer the valuable property of Respondent to Complainant. With respect to each of the three critical elements, we point out the following:

(A) Whether the Domain Name is Identical or Confusingly Similar to a Trademark or Service Mark in which the Complainant has Rights

The exact wording of the UDRP on this issue is as follows:

"In the administrative proceeding, the complainant must prove that each of these three elements are present."

The first of the three elements that must be proven is listed as follows:

"your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;"

In the Response of Respondent, Respondent provided a solid argument to point out that the Complainant has not met its burden of proving that Complainant has rights in the trademark. In its attempt to refute the Response, Complainant suggests that the "existence of a trade mark registration is not conclusive." Complainant then proceeds to cite a case which does not support Complainant's position. This is an apparent attempt of Complainant to "grasp at straws" in a desperate attempt to try to find some authority for its untenable position. In the cited case we point out that complainant did, in fact, have a bona fide trademark registration in the words in question. Secondly, the cited case is not a case involving criticism. Thirdly, the decision is a default decision in which the Respondent did not submit a response - which resulted in a decision for the Complainant.

Accordingly, Complainant has not proven that the "domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;" as required by the UDRP in order to justify the transfer of the domain names.

(B) Legitimate Interest in the Domain Name

We again point out that the UDRP states that:

"In the administrative proceeding, the complainant must prove that each of these three elements are present."

The second of the three elements that must be proven is listed as follows:

"you have no rights or legitimate interests in respect of the domain name;"

In the Response, Respondent pointed out that criticism is a legitimate noncommercial or fair use of a domain name. Substantial authority, precedents, support and justification were presented to prove this point. Complainant apparently agrees with the Response on this point since there is not any refutation of this principle.

Complainant instead attempts to distinguish the instant case from a good faith criticism case on the grounds that "inflammatory views" are expressed on the website. There is not any authority or support proffered to support the allegation that a Panel can make a factual determination that some element of a website is "inflammatory" and thereby determine that it is somehow not a valid criticism. We again point out that there are numerous cases cited in the Response that point out that the role of a panelist is not to make factual determinations of this nature.

Furthermore, in Paragraph 13 and in Paragraph 17 of Complainant's second submission, Complainant attempts to allege that the "the primary purpose of the registration of the domain name is not therefore to publish criticism, whatever else it may have been." Here again the Panel does not have the authority to make this factual determination of the "primary purpose" of the registration. The purpose of the UDRP is not to make subjective factual determinations such as the "primary purpose" of a website.

(C) Whether Respondent Registered and is Using the Domain Name in Bad Faith

We again point out that the UDRP states that:

"In the administrative proceeding, the complainant must prove that each of these three elements are present."

The third of the three elements that must be proven is listed as follows:

"your domain name has been registered and is being used in bad faith"

Complainant makes the untenable argument that in spite of the clear wording of the UDRP, it is not necessary to prove that the domain name was registered in bad faith. We point out that the wording of the UDRP is that "your domain name has been registered and is being used in bad faith". The Complainant has not submitted any additional evidence, authority or justification to support Complainant's attempt to prove that it should be held that the domain name has been registered and is being used in bad faith. Instead, Complainant argues that the wording of the UDRP should not be respected, ie, that although the UDRP states that there should be proof that the "domain name has been registered…in bad faith" it does not really mean that it is necessary to prove that the "domain name has been registered in bad faith" This cannot be a proper interpretation of the clear language of the policy.

With respect to the Complainant's allegations with respect to the offer to sell the domain name, Complainant has submitted a copy of a letter. The letter contains the statement that "I explained that since the corruption had already cost me £100,000 in legal fees and the loss of my Jeep I would sell him the names for £100,000 and walk away." It is clear from the wording of the sentence that the referenced corruption had cost Mr. Coulter considerable amounts (thereby creating a cause of action) and that he would "walk away" (ie, settle the disputes and abandon the disputes) for a settlement of £100,000. The "sale" of the domain names was not the sole consideration for the £100,000. Instead, the consideration for the £100,000 was the release and settlement of all of the disputes between Mr. Coulter and the Complainant.

In view of the fact that Complainant's second submission contains additional narrative description describing Complainant's perspective with respect to the facts and circumstances surrounding the dispute, the Respondent also wishes to provide additional information. We note that there is serious concern within the community with respect to the Dorset Police Department. There is a definite need for criticism and critique of the actions of the department. Accordingly, the Respondent, Mr. Coulter, provides the following:

1. The letter that Mr. Coulter wrote on 23rd July 2001 and faxed to the Complainant was composed at short notice and when he was very angry having just learned that the Complainant was breaching confidentiality by incorrectly quoting an "off-the-record" and "without prejudice" telephone conversation. He made a mistake and incorrectly used the word "sale" instead of using the word "transfer".

2. Subsequently he wrote to Peter Jones, Chairman of the Police Authority and complained about the very serious breach of confidentiality by Supt. Brazier and suggested that if it was ok for Supt. Brazier to reveal (and have published in proceedings) "without prejudice" matters then it would be ok for Mr. Coulter to do so as well, referring in particular to a recent meeting with Mr. Coulter, Peter Jones and Mr. Coulter's lawyer, during which the Complainant's had made a number of unacceptable offers to settle the dispute.

3. Mr Jones replied on 26th September 2001, a copy of his letter being attached as Exhibit A (http://www.dorset-police.com/internet-tribunal/2nd-EXHIBIT-A.pdf) hereto.

4. In view of the Police Authority's response, Mr. Coulter suggests that this is further evidence of the Complainant's disreputable behaviour and lack of integrity, and further evidence of their general bad faith in these matters.

5. As part of their second submission, the complainant comments about the content of the web site (http://www.vomit.cc) temporarily pointed to by dorsetpolice.com and dorsetpolice.net. Mr Coulter is not responsible for the contents of 3rd-party web sites and wishes to point out that he does not necessarily agree with the sentiments expressed at www.vomit.cc but defends the publisher's rights of free expression.

6. As part of their second submission the complainant advances the argument, it seems, that a web site about the police in Dorset is not necessary because there is a police complaints procedure. Mr. Coulter respectfully submits that this procedure clearly does not work or enjoy public confidence. As an example he draws attention to an article published recently by a local newspaper, the Western Gazette, and attached as Exhibit B (http://www.dorset-police.com/internet-tribunal/2nd-EXHIBIT-B.pdf hereto.

7. It is demonstrable that the Dorset Evening Echo and the Bournemouth Daily Echo (the two major local papers in Dorset) are very selective about what articles are published regarding the police in Dorset and also the Dorset local authorities.

8. Recently the police in Dorset employed some very "heavy-handed" and "gestapo-like" tactics against a small group of homeless persons (including women with very young children, and a very heavily-pregnant woman who was due to give birth at any time) in Weymouth, Dorset and ordered them to leave town. The police conducted a humiliating stage-managed "raid" at around 6:00am with reporters and photographers from the Dorset Echo being present who subsequently published an extremely biased and hostile report. Following a plea from the homeless people, a senior judge in London ordered the police in Dorset to cease and desist and scheduled a High Court hearing of the police's behaviour. It looks very much like the police in Dorset have acted unlawfully and the case is currently on-going.

[Note: The High Court subsequently held that Dorset Police had acted unlawfully and in a "Draconian" manner]

9. In addition, when a serving police officer (detective) in Dorset was recently convicted of very serious drug offences and (with others) was sentenced to a substantial prison term, Mr. Coulter suggests that the police in Dorset demonstrated once again their lack of honesty and their lack of integrity when they censored their web site at http://www.dorset.police.uk by failing to mention anything about their corrupt detective at all.

10. Mr. Coulter makes the comments in paragraphs 6 and 9 above, in particular, to show that it is vital in the public interest that there is a criticism web site of the police in Dorset and that dorsetpolice.com and dorsetpolice.net are not transferred to the Complainant in view of the Complainant's proven bad-faith and poor behaviour and the short-comings in their complaint as pointed out.

Conclusion

In conclusion, we reiterate our position that:

1) The additional submission of Complainant should not be accepted.

2) The second submission of Complainant does not refute the points made in the Response of Respondent and does not prove the three elements that are required to be proven to justify the transfer of the domain name in question.

We believe that the Response document provides substantial justification, substantiation and authority to show that the Complainant has not proven the three elements that must be proven in order to justify the transfer the valuable property of Respondent to Complainant. The second submission of Complainant does not provide any additional proof that is adequate to prove the three elements.

Accordingly, we respectfully request that the Complainant's request for the transfer of the domain names be denied.

Respectfully submitted,

Stephen H. Sturgeon, Esquire
Counsel for Respondent
September 30, 2001