Cardiff Exhausts Ltd (t/a Longlife) -v- Another.com Ltd [2004] DRS 1863 (3 September 2004)

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Cardiff Exhausts Ltd (t/a Longlife) -v- Another.com Ltd (formerly D C Tech Ltd)

3.1 The Complaint was received in full (including annexes) by Nominet on 2 July 2004. Nominet validated the Complaint and sent a copy to the Respondent on 7 July 2004, informing the Respondent that it had until 29 July 2004 to lodge a Response.

3.2 Since no Response was received by the deadline (or at all), the dispute did not proceed to Informal Mediation. On 17 August 2004 the Complainant paid Nominet the required fee to obtain a decision of an Expert pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service (“DRS”) Policy ("the Policy").

3.3 On 17 August 2004 Nominet invited me, Anna Carboni, to provide a decision on this case and, following confirmation to Nominet that I knew of no reason why I could not properly accept the invitation to act in this case and of no matters which ought to be drawn to the attention of the parties which might appear to call into question my independence and/or impartiality, Nominet duly appointed me as Expert.

4.1 Since the Respondent has not submitted a Response, I have checked the Complaint file to determine whether there are any exceptional circumstances which should lead to my taking any action other than proceeding to a decision, pursuant to paragraph 15(b) of the DRS Procedure. In particular, I have looked at the methods used to notify the Respondent of the Complaint.

4.2 The details in Nominet’s records for the registrant of the Domain Name are inter alia as follows:

The details given for all three of the “Admin Contact”, “Billing Contact” and “Tech Contact” are:

Name:   Stefan Kerner
Address: Unit 6
  32-34 Gordon House Road
  London NW5 1LP
Telephone: 0171 428 9980
Fax:  0171 428 9981
Email:  stefan@designercity.com

Similar details are found in the WHOIS search for the Domain Name, though this additionally lists Another.com Ltd as the “Registrant’s Agent”

4.3 From the Complaint file, it appears that Nominet attempted to notify the Respondent of the Complaint by several different means:

4.3.2 by fax to the fax number 0207 428 9981 (i.e. as per the number in the database, but with the London code updated appropriately), marked “FOR THE PERSONAL ATTENTION OF STEFAN KERNER”;

4.3.5 by e-mail to steve@bowrick.com, being an e-mail address given for a representative of the Respondent by the Complainant in the Complaint.

These are almost all of the various means of appropriate communication of the Complaint, which are provided for in paragraph 2(a) of the DRS Procedure.

4.4 The file reveals that a delivery failure report was received by Nominet to the effect that the notification sent by e-mail had not been received by any of the three addressees. The file also contains a fax report showing that no pages were delivered by fax. However, there is nothing on the file to suggest that the postal copy was not delivered. Under paragraph 2(e)(ii) of the DRS Procedure, the Complaint is deemed to have been received on the second working day after posting, unless Nominet or I decide otherwise.

4.5 Despite the apparent delivery of the postal copy of the Complaint, it is possible that the Respondent has not had actual notice of the Complaint. It transpires, from checks that have been made at Companies House following my appointment, that the Respondent changed its name from D C Tech Limited to Another.com Limited on 19 July 1999, but did not record this change with Nominet. Furthermore, Mr Kerner resigned as company secretary and was replaced by Mr Stephen Bowbrick on 28 July 1999. No change of contact details was notified to Nominet, which may or may not have been intentional. The address in Nominet’s records, to which the Complaint was sent, is different from any of the Respondent’s registered office and the home addresses given in the Companies House records for either Mr Kerner or Mr Bowbrick. Furthermore, given the spelling of Mr Bowbrick’s name (with a ‘b’ in the middle), it is likely that the Complainant made a typographical error when he gave his e-mail address as steve@bowrick.com.

4.6 I considered whether I should direct that the entire procedure begin again, by using different e-mail and postal addresses for the Respondent. However, I decided that I should not. Nominet quite correctly used the details that had been notified to it by the Respondent upon registration of the Domain Name. Pursuant to the registration contract which the Respondent must have entered into with Nominet, the Respondent agreed to inform Nominet promptly of any change in its registered details and those of any agent (clause 2.3 of the standard form contract) and warranted that the details submitted were correct and that future changes would be submitted in a timely manner (clause 5.2). In those circumstances, it is right that Nominet should take the contact details at face value. To decide otherwise would waste all of the Complainant’s, Nominet’s and my time, in what is intended to be a streamlined procedure, by giving the Respondent the benefit of a doubt as to whether it has received a document, when attempts have been made to send it to all of the contact points which the Respondent itself gave to Nominet.

4.7 Therefore I shall continue to deal with the substance of the case. However, in view of the facts set out above, I shall direct that my decision be sent to Mr Bowbrick, using the e-mail address steve@bowbrick.com and the postal address given in the company search, as well as to Mr Kerner at the address in Nominet’s own records.

5.1 The Complainant is a company called Cardiff Exhausts Ltd. The Complaint gives no information about the Complainant’s business or location, though I infer from its name and address that the company deals in vehicle exhausts and operates near Cardiff. It can also be inferred from the front sheet of the Complaint that the Complainant trades under the name “Longlife”, but no details are given about this.

5.2 The Respondent is named by the Complainant as D C Tech Ltd. As explained in section 4, this is the name given in Nominet’s records for the registrant of the Domain Name. No details are given of the Respondent’s business.

5.4 At some point prior to August 2003, the Complainant corresponded with the Respondent and negotiated the sale to it of the Domain Name, dealing with an individual named Steve Bowbrick. It is not clear whether the Complainant or the Respondent initiated these negotiations. However, the end result was that the Complainant paid the Respondent £1,000 + VAT for the Domain Name, against an invoice for this amount. The Domain Name was not transferred and the Respondent has subsequently failed to respond to phone calls and e-mails from the Complainant.

5.5 It is apparent from the Complaint that the Complainant believed that it was dealing with an agent for the Respondent in the negotiations. That is because the name of the registrant was apparently D C Tech Ltd, with a contact person called Mr Kerner, whereas the negotiations were conducted by Mr Bowbrick of Another.com, which is recorded as an agent for D C Tech Ltd. In fact, the invoice for £1,000 + VAT is on letterhead entitled “another.com” and bears a company number 03661600. Company search records show that the full name of this company is Another.com Limited and that it was formerly called D C Tech Limited. For this reason, I have identified the Respondent in the title of this decision as “Another.com Limited (formerly D C Tech Limited)”.

5.6 The Domain Name resolves to a website at http://another.com/, which welcomes users to “another.com’s new email system”. A username and password is required to go any further.

6.1 The Complaint is extremely brief. The Complainant states that the Domain Name is identical or similar to a name in which it has Rights and that, in the hands of the Respondent, it is an Abusive Registration. The reasons given are as follows:

6.1.1 The Complainant agreed to purchase the Domain Name for £1,000 + VAT by negotiating with Steve Bowbrick, who is said by the Complainant to be a director of “another.com.ltd”, acting as agent for the Respondent.

6.1.2 The Complainant paid the agreed sum against an invoice issued by Another.com. The invoice was dated 1 August 2003 and the Complainant made payment by cheque dated 2 August 2003. The Complainant has submitted documentation to establish that the cheque was presented and cleared by 19 September 2003.

6.1.3 Notwithstanding payment, and in breach of the agreement, the Domain Name was not transferred.

6.2 The Complainant also asserts, contrary to my findings of fact that I have already set out in Section 5, that “D C Tech Ltd are a holding company that doesn’t actually exist” and that Another.com “were acting on behalf of a non-existant (sic.) company”.

6.3 The Complainant states its belief that Another.com defrauded it. Having established that Another.com is in fact the Respondent, I take this as an allegation not simply against an agent of the Respondent, but against the Respondent itself.

7.1 Paragraph 2 of the Policy provides that, to be successful, the Complainant must prove on the balance of probabilities that:
i it has Rights in respect of a name or mark which is identical or similar to the Domain Name; and

ii the Domain Name, in the hands of the Respondent, is an Abusive Registration (as defined in paragraph 1 of the Policy).

7.2 Under paragraph 1 of the Policy, “Rights includes, but is not limited to, rights enforceable under English law”. Whilst such rights are in many cases rights in trade marks acquired through registration or use, they may also include contractual rights.

7.3 Whilst the Complainant uses the designation “T/A Longlife” after its corporate name on the front of the Complaint, no details are given about any trade mark registrations or the use of “Longlife” by the Complainant as a trade name. Furthermore, many other traders use, or might wish to use, the term “Longlife” to indicate longevity of their goods. Therefore, I am unable to find that the Complainant has any trade mark or passing off rights in the name “Longlife” on the basis of the information in the Complaint file.

7.4 I therefore turn to the contractual argument. The Complainant has exhibited the invoice dated 1 August 2003 from the Respondent to the Complainant, which displays the Domain Name on its face and states “Domain transferred on receipt of cleared funds”. The Complainant has also asserted and produced documentation to establish that it paid the amount invoiced to the Respondent. Although the Complainant was under the mistaken belief that he had negotiated the sale and purchase of the Domain Name with a director of an agent for the Respondent, rather than (as it transpires) the company secretary of the Respondent itself, that misapprehension does not remove the fact that Mr Bowbrick could legitimately be assumed by the Complainant to have proper authority to bind the Respondent to sell the Domain Name.

7.5 I have therefore concluded that the Complainant has a contractual entitlement to the Domain Name as against the Respondent and accordingly has relevant Rights in the Domain Name.

"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."

7.7 I must take into account all relevant facts and circumstances which point to or away from the Domain Name being an Abusive Registration.

7.8 This case does not fit neatly into any of the factors listed in paragraphs 3 and 4 the Policy as being evidence that a domain name is or is not an Abusive Registration.

7.9 There is no evidence in this case as to the Respondent’s aims, intentions or acts at the time of registering the Domain Name. Nor is the explanation of the negotiation to sell the Domain Name to the Complainant sufficient to justify a finding of abuse. The use by the Respondent of the Domain Name to lead internet users to its “another.com” website does not in itself help with the decision either.

7.10 However, I find on the balance of probabilities that, from the time that the Respondent received the cleared funds from the Complainant, and continued to hold onto and use the Domain Name, it did so in breach of a contract to transfer it to the Complainant. This can fairly be said to be use of the Domain Name in a manner which is unfairly detrimental to the Complainant’s Rights. Accordingly, I conclude that the Domain Name is an Abusive Registration.

8.1 I find that the Complainant has Rights in respect of a name which is identical to the Domain Name and that the Domain Name, in the hands of the Respondent, is an Abusive Registration. I therefore direct that the Domain Name longlife.co.uk should be transferred to the Complainant.

8.2 I further direct that this decision be communicated to the Respondent by sending it by post to the registered office of the Respondent and to the address given in the Respondent’s records at Companies House for Mr Stephen Bowbrick, the Company Secretary of the Respondent, and by e-mail to steve@bowbrick.com, as well as by post to the name and address used by Nominet for communicating documents in this Complaint to date.

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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Cardiff Exhausts Ltd (t/a Longlife) -v- Another.com Ltd [2004] DRS 1863 (3 September 2004) URL: http://www.bailii.org/uk/cases/DRS/2004/1863.html Cite as: [2004] DRS 1863