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Nominet UK Dispute Resolution Service |
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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Advanced Hair Studios PTY Ltd -v- YourWWW [2002] DRS 503 (27 October 2002) URL: http://www.bailii.org/uk/cases/DRS/2002/503.html Cite as: [2002] DRS 503 |
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Nominet UK Dispute Resolution Service
DRS00503
Advanced Hair Studios Pty Limited -v- YourWWW
Decision of Independent Expert
Parties:
| Comlainant: | Advanced Hair Studios Pty Limited |
| Country: | GB |
| Resondent: | YourWWW [Domain Names Direct] |
| Country: | GB |
Advancedhairstudio.co.uk ("the Domain Name")
The complaint was entered on to the Nominet system on 18th July 2002. Nominet validated the complaint on 30th August 2002 and on the same day despatched a copy of the complaint to the Respondent by post to the address recorded in the register entry for the Registrant of the Domain Name. The register entry records no email address for the Respondent. Accordingly, the complaint was also sent by email to the address postmaster@advancedhairstudio.co.uk on 30th August 2002. The Respondent was informed that he had 15 days within which to lodge a Response. The email, which was redirected to john@yourwww.co.uk, was returned on 30th August 2002 marked "No such user here".
The postal copy of the Complaint, addressed to "FAO Mr John Scott-Davies, YourWWW, 70 Brunswick Street, Stockton-on-Tees, TS18 1DW" was returned by the Post Office marked "addressee has gone away".
The Respondent failed to respond and was informed by a letter dated 23rd September 2002 and an email of the same date (which e-mail was again returned) that if the Complainant paid the requisite fees by 7th October 2002 the matter would be referred to an Expert for a decision under the Dispute Resolution Service. On 7th October 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").
In the absence of a response from the Respondent, the dispute could not be resolved by mediation and was referred for a decision by an Independent Expert following payment by the Complainant of the required fee for a decision of an Expert pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service Policy ("the Policy").
David Flint, 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.
The Respondent has not submitted any Response to Nominet in compliance with paragraph 5a of the Procedure for the conduct of proceedings under the Dispute Resolution Service (the "Procedure").
Paragraph 15b of the Procedure provides, inter alia, that "If in the absence of exceptional circumstances, a Party does not comply with any time period laid down in this Policy or the Procedure, the Expert will proceed to a Decision on the complaint."
There is no evidence before the Expert to indicate the presence of exceptional circumstances. Nominet has attempted to communicate the complaint to the Respondent by e-mail and post. Although the hard copy postal copy has been returned marked "not known here" the efforts made by Nominet are in accordance with the Procedure and accordingly, the Expert will now proceed to a Decision on the Complaint notwithstanding the absence of a Response.
Paragraph 15c of the DRS Procedure provides that "If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure ... , the Expert will draw such inferences from the Party's non-compliance as he or she considers appropriate." I am not aware of any exceptional circumstances in this case and so will draw inferences as appropriate.
Both the Complaint and the postal notification thereof by Nominet were addressed to "YourWWW". However, according to the nic.uk WHOIS report, the Registrant was Domain Names Direct.
YourWWW appears to be a TAG for Domain Names Direct and not the registrant of the Domain Name.
In these circumstances, I am of the Opinion that in a formal sense no valid complaint has been made under the Policy.
However, I am conscious that the Policy is designed to be interpreted and applied flexibly, (although I do not consider that this should excuse failure by a complainant to carry out even the most cursory of checks), and have therefore also considered the Complaint in this light.
Complainant
"The domain advancedhairstudio.co.uk was registered on 29-May-1999 and was last updated 23-Jan-2002. The domain is obviously exactly our company trading name. There is no website at the address www.advancedhairstudio.co.uk, the website at www.yourwww.com returns a blank page and www.yourwww.co.uk returns a standard cobalt installation webpage. I believe from this information that the domain is being squatted. Because the domain directly reflects our trading name in the UK it is an obvious name to own and also run our website on."
Respondent
No response was made
Complainant:
The substance of the Complaint is short and is as follows: -
The Complainant contends that it has rights in the name Advanced Hair Studio. The basis for the claim to rights in this name is the fact of incorporation of the company Advanced Hair Studios Pty Limited and use of "Advanced Hair Studio" as a trade name.
No supporting evidence is provided for the contention that the registration is abusive, other than the fact that the domain does not at present point to an active website.
The Expert notes that in cases, such as this, where the Complainant provides so little information, it is very difficult for the Policy to be implemented successfully. The Expert would encourage Complainants to set out as comprehensively as possible, within the terms of the Procedure for the Conduct of Proceedings under the Dispute Resolution Policy, as much information as they can and, in particular, to indicate clearly the rights on which they are relying and what activities or conduct of the Respondent are considered to be indicative of an abusive registration. A complaint that is short on information may lead to a conclusion which is unsatisfactory for all interested parties.
Respondent:
No response
Discussion and Findings:
General
To succeed in this Complaint the Complainant has to prove to the Expert pursuant to paragraph 2 of the Policy on the balance of probabilities, first, that it has rights (as defined in paragraph 1 of the Policy) in respect of a name or mark identical or similar to the Domain Names and, secondly, that the Domain Name, in the hands of the Respondent, is an Abusive Registration (as defined in paragraph 1 of the Policy).
The complaint refers to no documentary evidence to support any of the Complainant's submissions. The complaint is, however, the subject of a declaration signed on behalf of the Complainant stating that the information in the complaint is true to the best of the Complainant's knowledge. Accordingly, I will treat the complaint itself as the Complainant's evidence. That does not mean that the submissions made in the complaint are to be treated as proof, merely that those statements can be weighed to assess the Complainant's case.
Complainant's Rights
The Complainant relies on two matters to establish its Rights in the name Advanced Hair Studio. Firstly, its own incorporation as Advanced Hair Studios Pty Limited. Secondly, the claim that Advanced Hair Studio is its trading name. Nothing is said in the complaint as to when the Complainant began trading under the name Advanced Hair Studio, and, in particular, whether it traded under that name before incorporation or before registration of the Domain Name by the Respondent. No details have been given as to the extent of the Complainant's use of the Advanced Hair Studio name and the extent of the Complainant's reputation and goodwill in that name. The company appears to have been registered in October 1984, although it is currently shown as being some 9 months overdue in filing its accounts with the UK Registrar of Companies. The Complainant does not rely on any registered trade mark to establish its Rights.
The Complainant's case that it had Rights at the relevant time is not clearly made out. The incorporation of a company under a particular name does not of itself give rise to the right to prevent others using that name - the most that can be achieved by that registration alone is that it will block anybody else attempting to register exactly the same name with the relevant Companies House.
Use of the name in the course of business, which is what the Complainant appears to allege, may be sufficient to establish rights in passing off. Whilst the Complainant alleges that the name Advanced Hair Studio is its trading name, no detail is supplied in support of this claim. Although the definition of Rights in the Dispute Resolution Service Policy is "not restricted to rights enforceable under English law", the Complainant has not asserted a claim to any other type of rights in the name Advanced Hair Studio.
Despite the lack of supporting information as to the extent of use of the Advanced Hair Studio name by the Complainant, I find on balance that the Complainant does have Rights in the name Advanced Hair Studio. I base this on the Complainant's statements verified by the signed declaration in its complaint that Advanced Hair Studio is its trading name and that use of a trading name can be sufficient, even at low levels, to establish a case of passing off. The Complainant's incorporation under the same name counts as some support to this claim.
Abusive Registration
This leaves the second limb. Is the Domain Name, in the hands of the Respondent, an Abusive Registration? Paragraph 1 of the Policy defines "Abusive Registration" as:-
"a Domain Name which either:
i. was registered or otherwise acquired in a manner, which at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant's Rights; OR
ii. has been used in a manner, which took unfair advantage of or was unfairly detrimental to the Complainant's Rights."
A non-exhaustive list of factors, which may be evidence that the Domain Name is an Abusive Registration is set out in paragraph 3a of the Policy. There being no suggestion that the Respondent has engaged in a pattern of making Abusive Registrations the only potentially relevant 'factors' in paragraph 3 are to be found in subparagraphs i, ii, and iv which read as follows:
i "Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name:
A. primarily for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly associated with acquiring or using the Domain Name; B. as a blocking registration against a name or mark in which the Complainant has Rights; or
C. primarily for the purpose of unfairly disrupting the business of the Complainant;"
ii "Circumstances indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant;"
iii ...
iv It is independently verified that the Respondent has given false contact details to us.
The Expert interprets "as" in sub-paragraph i. B as being synonymous with "for the purpose of". Were it to be interpreted otherwise all domain name registrations would inevitably constitute "blocking registrations" for any later arrival wishing to use the name in question.
There are no circumstances or evidence in this case to suggest that the Domain Name was obtained as a blocking registration. The fact that the Domain Name does not appear to have been used does not indicate that at the time it was acquired it was obtained as a blocking registration (or that the Domain Name is an Abusive Registration) - Policy, paragraph 3(b).
Although the address to which Nominet had sent the Complaint was not successful, the domain name record discloses other addresses which were not attempted. In these circumstances, I am not satisfied that the test in sub-paragraph iv has been met.
Accordingly, the Expert finds that the Domain Name is not an Abusive Registration within the definition of that term in paragraph 1 of the Policy on the basis that it was not registered in a manner which, at the time when the registration took place, took unfair advantage of the Complainant's rights.
In light of the foregoing findings, namely that: -
1. The Respondent in these Proceedings is not the person in whose name or on whose behalf a Domain Name is registered; and
2. the Domain Name is not an Abusive Registration within the definition of that term in paragraph 1 of the Policy on the basis that it was not registered in a manner which, at the time when the registration took place, took unfair advantage of the Complainant's rights,
the Expert refuses the request for transfer of the name.
David Flint
Date: 27 October 2002
