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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Wavecrest Communications Plc v WaveCrest Computer Solutions Ltd [2002] DRS 333 (11 July 2002) URL: http://www.bailii.org/uk/cases/DRS/2002/333.html Cite as: [2002] DRS 333 |
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Nominet UK Dispute Resolution Service
DRS 00333
Wavecrest Communications Plc v WaveCrest COmputer Soluitions
Decision of Independent Expert
Complainant: | Wavecrest Communications Plc |
Country: | GB |
Respondent: | Computer Independent Associates Ltd (formerly WaveCrest Computer Solutions Ltd) |
Country: | GB |
wavecrestcom.co.uk ("the Domain Name")
The complaint was lodged with Nominet on April 24, 2002. Nominet validated the Complaint and notified the Respondent on May 2, 2002 and informed the Respondent that it had until May 24, 2002 within which to lodge a Response. On May 8, 2002 the Respondent filed a response. On May 8, 2002 Nominet forwarded a copy of the response to and notified the Complainant that it had until May 17, 2002 to file a reply. On May 16, 2002 the Complainant filed a reply which was copied to the Respondent on May 17, 2002.
On June 7, 2002 Nominet informed the Complainant and the Respondent that it had not been possible to achieve a resolution of the dispute by Informal Mediation..
On June 24, 2002 the Complainant paid Nominet the appropriate fee for a decision of an Expert pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service Policy ("the Policy").
On June 24, 2002 Andrew Goodman, the undersigned, ("the Expert") confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as expert in this case and further confirmed that he knew of no matters which ought to be drawn to the attention of the parties which might appear to call into question his independence and/or impartiality.
On June 26, 2002 Andrew Goodman was appointed as the Expert.
There are, so far as I am aware, no live procedural issues raised by either party which have a bearing upon this decision.
On January 18, 2002 the Domain Name was registered by Easyspace for Mr Lee Edwards and Mr Carl Warburton of 83, Layland Comple, Wellingborough, NN8 1RT who I understand are the directors of the Respondent company which, according to the Companies Register I have seen, was not registered until February, 12 2002 as WaveCrest Computer Solutions Ltd. It changed its name to Computer Independent Associates Ltd on February 20, 2002. As at the date of the Complaint the Domain Name operated to host a website which bore a homepage with the information "Closing Down Sale wavecrestcom Company for Sale" (sic) in large type with a clipart picture of a burglar and the words "Hey you stop, pay me my salary and expenses! Don't you think a year is a long time to wait already!!!" (sic). . The page also refers to "WaveCrest Computer Solutions Limited " although, as I have said, that company did not then exist.
At the date of this decision the site operates as the home site of "Wavecrest Computer Solutions." So far as I am aware the Respondent company trading as Wavecrest Computer Solutions has no obvious connection with the Complainant or its Domain Name, wavecrestcom.com which was registered in October, 2001
The substance of the Complaint may be set out shortly as follows:
It is said by the Complainant (i) The Domain Name in dispute is identical to similar to a name or mark in which the Complainant has rights; (ii) in the hands of the Respondent it is an Abusive Registration; (iii) the Respondent has since its registration used the Domain Name in an abusive way, namely to attack the business of the Complainant by posting a message that the Complainant was closing down, to the extent of linking the site to the government Insolvency Service website, and to indicate that the site could be purchased for £7,500. In support of its complaint the Complainant has printed off and appended what it says are accurate copies of all messages and modifications appearing on the site between January 22nd 2002 and April 25th 2002.
The Complainant requests that the Domain Name is transferred.
Respondent's Response:The Response rejects the Complaint and the evidence supporting it and contends
By its Response to the Reply the Claimant joins issue with the evidence of the Respondent and makes what I regard as an important point, namely that Mr Edwards of the Respondent is a former employee of European Digital Communications Plc, a company whose business was purchased by the Complainant some time after the termination of Mr Edwards' employment, and that Mr Edwards claims that monies are due to him arising from his termination. This throws light upon the message shown on the site on April 25th 2002.
For the purpose of this definition "Rights" includes but is not limited to rights enforceable under English law. However a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant's business.
(i) on January 22nd 2002 the website for the Domain Name displayed a message addressed to "Dear Lord P Whoobeck, the muggle of wavecrest" which stated "To Buy This Site please make your cheque payable to me £7,500. Plus £900 plus plus plus Wavecrest comes crashing down."
(ii) I accept that at 16.09 hrs on the afternoon of that day as a result of a telephone complaint made by Mr Anderson of the Complainant to the Respondent, the existence of which telephone call is support by telephone billing records, the site was modified by the Respondent to read "The wave crest comes crashing down !!!" (sic)
(iii) on January 23rd, 2002 the site was showing the figure of £7,500 with the phrase "No childish amount" and the amount "£950" with the phrase "Grown up money". I consider it reasonable, in view of the previous day's display, to infer that this was the proposed sale price of the site. Only later that day, at 16.27 hrs, did the site first display any indication of a service or product in keeping with the business of computer consultants or engineers.
(iv) on January 25th 2002 the site directed the reader to Callwave, an internet call waiting service.
(v) on April 2nd 2002 the site directed the reader to the government's Insolvency Service website.
(vi) I have referred above to the display on the site as at the date of the Complaint. I reject as not credible the Respondent's implicit but not express assertion that the Complainant downloaded the Domain Name web pages, tampered with them , and then produced the resulting evidence in order dishonestly to discredit the Respondent.
In light of the foregoing findings, namely that the Complainant has rights in respect of a name or mark which is identical to the Domain Name and that the Domain Name in the hands of the Respondent is an Abusive Registration, I direct that the Domain Name, wavecrestcom.co.uk, be transferred to the Complainant.
Andrew Goodman
Date: 11 July 2002