Coleman v Estate Lettings  [2005] DRS 02601 (14 June 2005)

Nominet UK Dispute Resolution Service
DRS 02601
Gill Coleman -v- Estate Lettings
Decision of Independent Expert
1.	Parties: 
Complainant:	Gill Coleman	

Country:	GB	
	
Respondent:	Estate Lettings	

Country:	GB	

2.	Disputed Domain Name: 

gillcoleman.co.uk (the “Domain Name”)

3.	Procedural Background: 

	The Complaint in this case was lodged with Nominet UK ("Nominet") on 27 April 2005.  Nominet validated the Complaint on 28 April 2005 and notified the Respondent, giving them 15 working days within which to lodge a response. As of 24 May 2005 no response was received.  On 2 June 2005, the Complainant paid to Nominet the appropriate fee for a Decision by an Expert pursuant to paragraph 7 of the Nominet Dispute Resolution Service Policy (the “Policy”). 

	The undersigned, Andrew Murray (the “Expert”), was formally appointed on 7 June 2005.  The Expert has formally confirmed to Nominet that he knows of no reason why he cannot properly accept the invitation to act as an expert in this case and further confirmed that he knows 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.  

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 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

	Through her registered company, Gill Coleman Quality Lettings Ltd, the Complainant trades as a sales and lettings (estate) agency in the town of Telford, Shropshire. The Complainant’s company was first registered with Companies House on 11 May 1999 as Coleman Estates Property Development Lettings & Management Ltd and changed its name to its current form on 20 September 1999. The trading name of said company is, and has been since at least early 2003, “Gill Coleman Sales & Lettings”, this being the name of the Complainant since 1972.

	The Complainant has traded at its current location under the name “Gill Coleman” since at least early 2003, and has since 3 March 2003 operated from a website at the address www.colemanestates.co.uk.  
	
6.      The Parties' Contentions 

Complainant

The Complainant submits that the Domain Name in dispute is identical or similar to a name or mark in which it has rights and that the Domain Name in the hands of the Respondent is an Abusive Registration.

The Complainant states that she has prior rights in the name “Gill Coleman”, which has been her personal name since her marriage in 1972, and has been the trading name of the Complainant’s company, Gill Coleman Quality Lettings Ltd, since at least early 2003. 
  
The Complainant contends that the Respondent’s registration is of an abusive nature as it was solely registered to enable potential customers searching for a Telford lettings agent to be automatically diverted to the Respondent’s website when entering gillcoleman.co.uk, therefore disrupting the Complainant’s business. 

Respondent’s Response

No response was received from the Respondent.

7. 	Discussion and Findings: 

General

According to paragraph 2 of the Policy, in order to succeed in this complaint, the Complainant has to prove to the Expert that, on the balance of probabilities: 

i.	the Complainant has Rights (as defined in paragraph 1 of the Policy) in respect of name or mark which is identical or similar to the disputed domain name; and

ii.	the disputed domain name is an Abusive Registration (as defined in paragraph 1 of the Policy).

These matters must be proven by the Complainant, notwithstanding the failure by the Respondent to respond.  The effect of the Respondent’s default is rather that, under paragraph 15(c) of the Procedure (there being no exceptional circumstances in this case) the Expert is required to draw such inferences from the Respondent’s non-compliance as he considers appropriate.

Complainant's Rights

The Complainant appears to be the principal of a well established local sales and lettings agency. The agency appear to have been trading under the name “Gill Coleman” since at least early 2003. All of the information before the Expert in respect of the Complainant supports this view. The Expert considers it reasonable to infer that the Complainant has goodwill in the name. 

The Domain Name ‘gillcoleman.co.uk’ comprises the words “Gill Coleman” joined together and the suffix ‘.co.uk’.  In assessing whether or not a name or mark is identical or similar to a domain name, it is appropriate to discount the domain suffix, which is of no relevant significance and wholly generic.  The remainder ‘gillcoleman’ is clearly a replication of the Complainant’s personal and trading names. The Expert, therefore, finds that the Complainant has rights in respect of a name or mark, which is sufficiently similar to the Domain Name.

Consequently, the Expert finds that, for purposes of the Policy, the Complainant has rights in respect of a name or mark, which is identical or similar to the Domain Name.

Abusive Registration

Paragraph 1 of the Policy defines “Abusive Registration” as:-

“a Domain Name which either:

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.”

Under paragraph 3a of the Policy is listed a non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration. The Complainant has indicated that it wishes to rely on the paragraph 3a(i)(C) which requires:

“Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily for the purpose of unfairly disrupting the business of the Complainant.”  

The evidence presented in support of this contention is, in the first instance not particularly strong. A visit by the Expert to the Domain Name on 13 July 2005 found that the Domain Name was being used to forward visitors to the Ask Jeeves search engine (www.ask.co.uk). An earlier image of the site gathered by Nominet reveal simply a blank page with a button marked “Enter” and the caption “Over 18s only”. The Expert is unable to ascertain what if any content was available behind this page, as this was not recorded at the time. A search of the Internet Archive’s “Wayback Machine” proves equally inconclusive with no entries being recorded. It appears therefore that the Complainant fails to demonstrate their claim that the Domain Name was being used to divert potential customers to the Respondent’s website. 

As this expert has noted elsewhere “It is for the Complainant to prove on the balance of probabilities that the Domain Name, in the hands of the Respondent, is an Abusive Registration, that is that the Respondent is taking unfair advantage of, or is unfairly detrimental to the Complainant’s rights.” (Viking Office Products, Inc. v Wenda Sparey, DRS 02201, Decision of Appeal Panel, 25 May 2005). On the basis of the prima facia evidence supplied it would appear that the Complainant has failed to demonstrate that the use of the Domain Name is abusive as there is no direct evidence of the Domain Name being used in the fashion described by the Complainant. The Expert is though directed to examine the use being made of additional domain names held by the Respondent. These names were registered on behalf of Telford Mobiles Ltd., who are the current registrants of the estatelettings.co.uk domain name used by the Respondent and who may therefore be assumed to be linked with the Respondent. These domain names include dixonfenwick.co.uk and clarkhaynes.co.uk, both variants of the domain names of local Telford estate agencies Dixon Fenwick (which uses the dixon-fenwick.co.uk domain name) and Clark Haynes (which trades from the clark-haynes.co.uk domain name). When the Expert viewed the pages available at each of these domain names on 13 June 2005 he found that he was forwarded to the Respondent’s website. From this it is, in the Expert’s opinion, fair to assume that a pattern of behavior has been established. Although the Domain Name no longer directs visitors to the Respondent’s website it is reasonable to assume that the Domain Name, like the others held by the Respondent, did so until such time as the notification of the Complaint was received from Nominet. It would then be a simple matter to construct a blank holding page before redirecting to Ask, both these actions being carried out to mask the Respondent’s earlier activity. By referring to these other domain names, which the Respondent is using in exactly the manner described by the Complainant in the Complaint, a pattern of abusive behavior emerges. This suggests that the Respondent’s prior activities with regard to the Domain Name may be fairly be assumed to be of a similar fashion to the use that is currently being made of the dixonfenwick.co.uk and clarkhaynes.co.uk domain names and that such actions are therefore abusive in terms of paragraph 3a(i)(C) of the Policy.

The Expert therefore finds that the registration is an abusive registration under paragraph 3a(i)(C).

Having found the Complainant to have made out a prima facia case under the Policy the burden under paragraph 4 now shifts to the Respondent to demonstrate their use is not an Abusive Registration. The Expert having found the Respondent has a case to answer, the Respondent must make that answer. Here the Respondent has failed to answer and therefore cannot rebut the presumption of Abusive Registration. 

Accordingly, the Expert finds that the Domain Name is an Abusive Registration as defined by paragraph 1 of the Policy on the basis that it is being used in a manner which takes unfair advantage of the Complainant's rights.

8.	  	Decision:

In light of the foregoing findings, namely that the Complainant has rights in respect of a name which is similar to the Domain Name and that the Domain Name, in the hands of the Respondent, is an Abusive Registration, the Expert directs that the Domain Name, gillcoleman.co.uk, be transferred to the Complainant.

Andrew Murray								Date: 14 June 2005