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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> DaimlerChrysler UK Ltd -v- Rendez-Vous Point [2003] DRS 1114 (8 September 2003) URL: http://www.bailii.org/uk/cases/DRS/2003/1114.html Cite as: [2003] DRS 1114 |
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Nominet UK Dispute Resolution Service
DRS 01114
DaimlerChrysler UK Ltd -v- Rendez-Vous Point
Decision of Independent Expert
1. Parties:
Complainant: DaimlerChrysler UK Ltd
Country: GB
Respondent: Rendez-Vous Point
Country: GB
2. Domain Name:
dodge.co.uk ("the Domain Name").
3. Procedural Background:
The Complaint was lodged with Nominet on 16 July 2003. Nominet validated the Complaint and notified the Respondent of the Complaint on 25 July 2003 and informed the Respondent that he had 15 days within which to lodge a Response. The Respondent failed to respond. Mediation not being possible in those circumstances, Nominet so informed the Complainant and on 29 August 2003 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”).
Andrew Murray, the undersigned, (“the Expert”) has 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 5 September 2003, Nominet invited the undersigned, the Expert, to provide a decision on this case.
4. Outstanding Formal/Procedural Issues (if any):
The Respondent has not submitted a Response to Nominet in time (or at all) in compliance with paragraph 5a of the Procedure for the conduct of proceedings under the Dispute Resolution Service (“the Procedure”).
The Expert has seen copy communications from Nominet to the Respondent and has no reason to doubt that the Respondent has been properly notified of the complaint in accordance with paragraph 2 of 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; accordingly, the Expert will now proceed to a Decision on the Complaint and notwithstanding the absence of a Response.
The lack of a response does not entitle the Complainant to a default judgement. The Complainant must still prove its case to the required degree. The Expert will evaluate the Complainant’s evidence on its own merits and will draw reasonable inferences from it in accordance with paragraph 12b of the Procedure.
Paragraph 15c of the 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.”
Generally, the absence of a Response from the Respondent does not, in the Expert’s view, entitle an expert to accept as fact all uncontradicted assertions of the Complainant, irrespective of their merit. In this case it seems to the Expert that the probable facts speak for themselves and that it is not necessary to draw any special inferences. The Expert finds that the probable facts asserted by the Complainant and set out in the next following section are indeed facts.
5. The Facts
The facts in this case are somewhat sketchy. The only documentary evidence provided to the Expert being the Complaint form, which provided little more than the minimum detail required to comply with paragraph 3 of the Procedure.
What can be stated is that the Complainant is a UK company having its registered office at Delaware Drive, Tongwell, Milton Keynes, MK15 8BA. The Complainant is a private limited company and is a wholly owned subsidiary of DaimlerChrysler AG, a German registered company having its head office in Stuttgart. The Complainant is a manufacturer/distributor of motor vehicles and has been known by this name since November 1999, having previously traded under the names Mercedez-Benz (United Kingdom) Ltd. and Mercedes-Benz UK 1989 Ltd. (Registration no. 02448457).
The Domain Name was registered on 30 November 1997 by the Respondent. It is due for renewal on 30 November 2003. The domain name is not currently in use and the address www.dodge.co.uk resolves to a simple error message stating that “the page is currently unavailable.”
The Complainant contends to have rights in relation to a name or mark identical or similar to the Domain Name, but no evidence of such rights have been supplied to the Expert.
6. The Parties’ Contentions
Complainant:
The Complainant contends that:
1. The Domain Name is identical or similar to a name or mark in which [they] have rights.
2. They have attempted to purchase the Domain Name and despite several attempts to contact the owner of the Domain Name, they have been unable to obtain any response from the registrant or agent who registered the Domain Name. As such the Domain Name in the hands of the Respondent is an Abusive Registration.
Respondent:
The Respondent has not responded
7. Discussion and Findings
General
Under paragraph 2 of the Policy the Complainant has to establish 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 Name and that the Domain Name, in the hands of the Respondent, is an Abusive Registration as defined in paragraph 1 of the Policy.
Complainant's Rights
The Complainant states that: “The Domain Name is identical or similar to a name or mark in which I have rights.” According to paragraph 2(b) of the Policy, “a Complainant is required to prove to the Expert that [such rights] are present on the balance of probabilities.” Rights are defined in paragraph 1 of the Policy as “include[ing], but not limited to rights enforceable under English law.” Thus to establish rights the Complainant is required, under paragraph 2(b), to demonstrate on the balance of probabilities that they have an enforceable interest in a name or mark similar or identical to the Domain Name. The Complainant has failed to provide to the Expert any evidence of such rights. The Complainant has instead chosen to rely upon the bald assertion that they “have rights”. This cannot discharge the burden of proof placed upon the Complainant by paragraph 2(b) and therefore the Expert finds that the Complainant has failed to establish that they have such rights. As a result this claim fails.
Abusive Registration
Although the claim has failed at the first hurdle, that of demonstrating the Complainant has rights in relation to an name identical or similar to the Domain Name, I will examine the second limb of the policy: Abusive Registration. To be an Abusive Registration the Domain Name must be one which "...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 has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant's Rights” (Paragraph 1, of the Procedure.)
Paragraph 3(a) of the Policy contains a non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration. These are as follows:
“Evidence of Abusive Registration
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. In combination with other circumstances indicating that the Domain Name in dispute is an Abusive Registration, the Complainant can demonstrate that the Respondent is engaged in a pattern of making Abusive Registrations; or
iv. It is independently verified that the Respondent has given false contact details to us.”
Again, according to paragraph 2(b) of the Policy, the Complainant is required to prove, on the balance of probabilities, that the Domain Name, in the hands of the Respondent, is an Abusive Registration. In this case, the Complainant has based their claim upon the fact that “[They] are looking to obtain the rights to usage of this domain name and have been trying to contact the owner to purchase the domain. [They] have not been able to get any response back from the registrant or agent who registered this for the customer.” The only conceivable heading which could apply to this claim is paragraph 3(a)(i)(B), that the Domain Name is being used as a blocking registration against a name or mark in which the Complainant has rights. Again the Complainant fails to demonstrate this claim on the balance of probabilities. No evidence is provided of any such attempts to contact the Respondent and there is no evidence as to any “blocking” by the Respondent. Therefore the claim of an Abusive Registration also fails for lack of evidence.
Abuse of Proceedings
Under paragraph 16(d) of the Procedure, it is incumbent on me to determine whether the Complainant has brought the complaint in bad faith. To date only one finding of bad faith has been found: the decision in Cardpoint Plc -v- Riga Industries (DRS 0538). In that decision the Expert found three factors to be of particular relevance to his finding. These were:
1. That nowhere in the Complaint did the Complainant set out any grounds why it considered the registration in the hands of the Respondent to be an Abusive Registration. In particular he noted that, “The Complainant cites none of the potential grounds set out in paragraph 3 of the Policy, nor any other ground, contrary to paragraph 3(v) of the Procedure which specifically requires it to do so. The Complainant merely asserts that the Domain Name is "rightly ours" given its operations in the UK and the fact of its trade mark application.”
2. At the time the Complainant commenced trading as Cardpoint, the Domain Name had already been on the register in the Respondent's name for one or possibly two years. This information was therefore available to the Complainant well before it commenced trading under the name in question.
3. Thirdly, the Complainant submitted that the Complaint was brought following the Respondent's failure to reply to its approaches made "in an attempt to resolve the matter".
In applying the three factors set out by the Expert in Cardpoint Plc -v- Riga Industries, similarities between that complaint and the current complaint are clear. In the current complaint, the Complainant failed to set out any grounds detailing why it considered the registration in the hands of the Respondent to be an Abusive Registration. In addition the complaint was brought after the Complainant attempted to “contact the owner to purchase the domain and were unable to get any response back from the registrant or agent who registered this for the customer.” Thus two of the three factors deemed to be of particular relevance in Cardpoint Plc -v- Riga Industries are found in this case. I therefore find that as with that case, “the Complainant pursued this Complaint out of frustration at the Respondent's refusal to negotiate terms for a transfer of the Domain Name rather than out of any genuine belief that the registration was an Abusive Registration under the Policy. There was no obligation upon the Respondent to negotiate terms for a transfer, and to invoke the Policy in such circumstances amounts to an abuse of process.
On this basis I am entering a finding that the Complainant is in bad faith in terms of paragraph 16(d) of the Procedure.
8. Decision
In light of the foregoing findings, namely that the Complainant has failed to demonstrate rights in respect of a name or mark which is identical to the Domain Name and that the Complainant has failed to establish that the Domain Name, in the hands of the Respondent, is an Abusive Registration, the Expert directs that the Complainant's request for a transfer of the Domain Name dodge.co.uk be refused.
Further the Expert records under paragraph 16(d) of the Procedure that the Complainant is in bad faith.
Andrew D. Murray
Date: 8 September 2003