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Nominet UK Dispute Resolution Service |
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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> PooleIT Ltd v Lock [2005] DRS 02513 (06 June 2005) URL: http://www.bailii.org/uk/cases/DRS/2005/02513.html Cite as: [2005] DRS 02513, [2005] DRS 2513 |
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PooleIT Ltd v Lock [2005] DRS 02513 (06 June 2005)
| Complainant: | Poole IT Ltd |
| Country: | GB |
| Respondent: | Darren Lock |
| Country: | GB |
pooleit.co.uk ("the Domain Name")
A brief chronology is as follows:
| 5 April 2005: | Complaint lodged with Nominet electronically |
| 5 April 2005: | Hardcopy complaint received by Nominet |
| 7 April 2005: | Nominet forwarded complaint to Respondent |
| 11 April 2005: | Electronic response received by Nominet |
| 12 April 2005: | Nominet forwarded response to Complainant |
| 17 May 2005: | Fee received from Complainant |
On 18 May 2005 I, Adam Taylor, the undersigned, confirmed to Nominet that I knew of no reason why I could not properly accept the invitation to act as expert in this case and further confirmed that I knew of no matters that ought to be drawn to the attention of the parties which might appear to call into question my independence and/or impartiality.
The response was filed in electronic form on 6 April 2005. This document was not also filed in hard copy form as required by paragraph 5c of Nominet's DRS Procedure ("the Procedure"). The response therefore also breached paragraph 5c(v) of the Procedure which requires signature by the Respondent or its authorised representative. The response indicated that annexes were not being submitted.
The following matters occurred on 12 April 2005: Nominet formally notified the parties of the filing of a response. The Respondent emailed Nominet saying that no signed hard copy had been submitted, the electronic response should not be processed and he was submitting a formal response. Nominet replied that a formal response had been made and the signed hard copy could be added to the file when received. The Respondent responded that, as no hard copy had been received in accordance with paragraph 5c, a response had not been submitted. He said he assumed the purpose of the rule was to prevent fraudulent filing of responses by complainants or others and that he had that day responded and would forward a signed hard copy.
The Respondent did file a further short submission electronically on 12 April 2005 but Nominet did not receive a signed hard copy of that document.
Paragraph 15c of the Procedure states that if, in the absence of exceptional circumstances, a party does not comply with the procedure, the expert will draw such inferences from the party's non compliance as he or she considers appropriate. No exceptional circumstances have been brought to my attention and so I draw the following inferences from the Respondent's defaults.
I agree with Nominet's decision to treat the 6 April submission as the response, albeit that no signed hard copy was filed. The Respondent clearly intended at that point that the contents of this document would comprise its complete response. While the Respondent suggests that purpose of the signed hard copy requirement in paragraph 5c is to prevent fraudulent filing of responses by persons other than the Respondent, he does not suggest that that in fact happened here. Nor has the Complainant been prejudiced by the Respondent's failure to file a signed hard copy.
In my view the Respondent should not be allowed disown his 6 April electronic response by relying on his own failure to file a signed hard copy and thereby obtain a second bite of the cherry. I will treat the 12 April submission as a non standard one.
Paragraph 13a of the Procedure states that the expert is not obliged to consider any statements from parties which have not been received in accordance with Nominet's DRS Policy ("the Policy) or the Procedure. Paragraph 13b requires that non standard submissions should contain, as a separate first paragraph, a brief explanation of why there is an exceptional need for the non-standard submission to be passed to the expert so that the expert can decide whether ask for the remainder of the document.
The 12 April submission did not contain such explanation of exceptional circumstances nor have such circumstances been otherwise indicated to me. Accordingly I will not consider that submission.
The Respondent registered the Domain Name on 10 September 2004.
According to a website screenshot provided by Nominet, as of 6 April 2005 the Domain Name pointed to the website of an IT company called Tower Network Ltd.
Complaint:
The complaint is extremely brief and is reproduced here in full:
"An ex employee of pooleit ltd has registered an address using our company's registered name so as to cause offence and damage our business. The person has no requirement for this name other than to be abusive, and has pointed the dns of pooleit.co.uk to a direct competitor in our line of work and is also using the email address to solicit our customer base. We have received numerous oral complaints from our customers to this effect."
Response:
Reply:
The Complainant did not file a reply.
General
To succeed, the Complainant has to prove in accordance with 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 Name and, second, 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, which is unrepresented, has provided no information or evidence about the nature, extent or length of its trading activity.
However, a Companies House printout supplied by Nominet shows that the Complainant was incorporated on 1 April 2003.
The Complainant's own website was under construction when I checked but a Google search against "PooleIT" (the Complainant uses the name as a single word) generated a number of results indicating that a business of that name had achieved a reasonably firm existence in the Dorset area.
The Respondent's purposes in registering and using the Domain Name explained below, including use to divert business to a competitor of the Complainant, presuppose that the Respondent believed that the Complainant had become recognised and known by its name "PooleIT".
Taking the above matters together, and given that the threshold for establishing rights under the DRS is low, I conclude that the Complainant has established common law rights in respect of a name or mark identical to the Domain Name.
Abusive Registration
Is the Domain Name an abusive registration in the hands of the Respondent? 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."
The background facts here are rather opaque as both parties' submissions are minimal and neither has produced any supporting documents. But despite this, and although the parties disagree whether the Respondent was formerly employed by the Complainant, it is clear to me that there has been some sort of prior relationship / dispute between the parties before the Respondent registered the Domain Name and that the Respondent was aware of the Complainant at the time of registration.
The Respondent does not deny the Complainant's assertions that he registered the Domain Name "to cause offence and damage our business" and that the Respondent had no requirement for the name other than to be abusive. The Respondent merely responds that the Domain Name has been purchased and is available to sell to the Complainant but that the Complainant has not accepted the offer. (I draw no particular conclusion from the fact of the alleged offer itself as neither party has provided any details of it.) The Respondent has offered no genuine reason for registering the Domain.
Furthermore, the Respondent has admitted that he pointed the Domain Name to the website of a competitor of the Complainant. He says that this was prompted by the Complainant's own registration of an "abusive and slanderous" domain name and would be corrected when the offending domain was deleted. That explanation does not in my view prevent such use of the Domain Name being unfairly detrimental to the Complainant's rights.
The Domain Name has, on the balance of probabilities, been acquired and used in a manner that took unfair advantage of or was unfairly detrimental to the Complainant's rights.
The domain name pooleit.co.uk should be transferred to the Complainant.
