A software company in the US registered the web address in 1995
but has since gone into receivership. Topdog Software Inc (TSI) had
registered the domain, but it is now controlled by Brandyn Briley,
the receiver appointed by a Georgia court to administer the assets
of the now-defunct company.
TSI had developed a search engine submitter program which it
called TopDog, but the company was dissolved in 2001 and a receiver
appointed to dispose of its assets. They included the domain name
topdog.com.
HMV took its case before the arbitration and mediation centre of
the World Intellectual Property Centre (WIPO). It argued that
Briley has no rights in the disputed name and that because it is
identical to the trade marks held by HMV it should pass to it.
Because the partnership behind TSI had dissolved, argued HMV, and
because the domain did not lead to an actual website, the receiver
has no legitimate rights or interests in the domain.
HMV also argued that the receiver owns the domain name purely
for the purpose of selling it at a profit, and that its
registration is therefore in bad faith.
Briley argued that she had legitimate interests in the domain as
the fiduciary for TSI. She said that selling the domain name at the
best price is part of her duty to maximise the value of the assets
of the company in receivership, and that this is one of the roles
of a receiver.
WIPO panellist Sir Ian Barker agreed with Briley. "At the time
of requisition, the Respondent had a right and legitimate interest
in the disputed domain name," wrote Barker in his judgment. "She
was acting as the agent of a Court at the Court’s direction in
procuring registration of the name to herself and preserving the
asset for whomsoever was held by the Court to be the owner."
Barker ruled that Briley did not act in bad faith. "It is
difficult to see that a Court-appointed officer, purporting to act
in accordance with the duties imposed on her by a Court to realize
a corporation’s assets, could be acting in bad faith, with the
primary intention of disrupting the business of the Complainants in
any of the ways set out in the [WIPO] Policy," he wrote.
The WIPO panellist also rejected the idea that Briley should be
stopped from selling the domain at the highest price. "Nor does the
Panel see anything sinister in the Respondent selling assets of TSI
where she is be to paid her professional fees for the receivership
out of the proceeds," wrote Barker. "It is a fairly basic tenet of
insolvency law that the reasonable costs of a liquidation are a
first charge on the assets of the defunct corporation."
Barker ruled against HMV.
