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Nominet UK Dispute Resolution Service |
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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Chris Dellar Ltd v Hunt [2005] DRS 03278 (09 May 2005) URL: http://www.bailii.org/uk/cases/DRS/2005/03278.html Cite as: [2005] DRS 3278, [2005] DRS 03278 |
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| Complainant: | Chris Dellar Ltd. |
| Country: | United Kingdom |
| Respondent: | Jonathan Hunt Ltd. |
| Country: | United Kingdom |
and (the "Domain Names").
The Complaint in this case was lodged with Nominet UK ("Nominet") on 14 March 2005.
Nominet validated the Complaint on 16 March 2005 and notified it to the Respondent, giving the Respondent 15 working days within which to lodge a Response. The Respondent failed to respond on or before 8 April 2005, and on 12 April 2005 Nominet wrote to the Respondent indicating that the dispute will be referred to an independent expert (once the Complainant paid the appropriate fees).
On 15 April 2005, the Complainant paid to Nominet the fee for a Decision by an Expert pursuant to paragraph 6 of the Nominet Dispute Resolution Service Policy ("the Policy").
On 22 April 2005, the undersigned, Christopher Gibson ("the Expert"), was selected as the Expert in this case and he confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as an 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 file was transmitted to the Expert pursuant to paragraph 11 of the DRS Procedure.
There are no such issues in this case.
The Complainant is Chris Dellar Ltd, a real estate agency registered on 10 November 2004 with Companies House as a private limited company in the United Kingdom.
The Domain Names were registered on 17 January 2005 in the name of the Respondent, Jonathan Hunt Ltd., and continue to be held by the Respondent. The Respondent is a real estate agency registered on 9 May 2003 with Companies House as a private limited company in the United Kingdom.
Complainant
The Complainant asserts that the Domain Names in dispute are identical or similar to a name or mark in which the Complainant has Rights. The Complainant further asserts that the Domain Names in the hands of the Respondent are Abusive Registrations.
Christopher Dellar, on behalf of the Complainant, states that he was a manager of the Respondent, the Jonathan Hunt Estate Agency, until he was made redundant in November 2004. Because he was out of work, he decided to form his own estate agency and during January 2005 he advertised for staff. Complainant alleges that shortly after the first advertisement appeared in the local paper, his former employer registered the disputed Domain Names in an effort to curtail the Complainant's new business.
Mr. Dellar states that he has taken legal advice and feels that the Respondent has no good reason to retain the Domain Names, and that the only reason Respondent has registered them is to stop the Complainant from using them in connection with his new business, which is in direct competition with the Respondent's business.
The Complainant seeks the transfer of the Domain Names.
Respondent
The Respondent did not file a Response.
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(s) constitutes Abusive Registrations (as defined in paragraph 1 of the Policy).
Complainant's Rights
The Complainant is doing business as Chris Dellar Ltd. The Expert finds that this name is clearly identical or similar to the disputed Domain Names,
The term "Rights" is defined by the Policy to include, but not be limited to, rights enforceable under English law, but the term does not extend to a name or term which is wholly descriptive of the Complainant's business.
In T.C. Hayes Limited –v– Jason Green (DRS 01180), the Expert noted a "dilemma commonly faced by Experts dealing with Complaints under the Policy," and which arises in the instant case:
"Despite the clear requirement of [the Policy], the Complainant has not in fact put forward any specific evidence to prove the existence of "Rights" as defined in the Policy and in the Procedure. There is no suggestion that the Complainant claims to own any registered trade marks in respect of the name [of the Complainant]. The Complainant's representative has done little more in effect than tick the box on the online Complaint Form confirming that the Domain Name in dispute is identical or similar to a name or mark in which the Complainant has Rights."
The Expert in T.C. Hayes reviewed the several options that could be considered in response to this dilemma:
"first, to take a very strict approach and simply dismiss the Complaint on the ground that the Complainant has failed at the first hurdle: or, second, I could go to the time consuming lengths of invoking my right under Clause 13 of the Procedure to request further statements or documents from the Complainant to give it the opportunity to improve its case. In my view, this second option should not be exercised lightly, particularly since to do so raises other issues as to whether further attempts should be made to serve the Respondent with any additional material provided, give him a further opportunity to respond and effectively re-open the submissions procedure. In this case I decline to adopt that course."
The Expert also raised and then followed a third option: to consider the documents in fact available and to assess whether, on balance, these do point to the existence of sufficient Rights on the part of the Complainant. Quoting the Appeal Panel decision in Seiko UK Limited v Designer Time/Wanderweb (DRS 00248), the Expert in T.C. Hayes observed that "[t]he requirement to demonstrate 'rights' is not a particularly high threshold test." The Expert turned to review the records that had been sent by Nominet, including a print-out from Companies House of details concerning the Complainant in that case.
Similarly, in this case, Nominet has sent Companies House records for both the Complainant and Respondent. These records show that both parties appear to be located in the same town, Ware in Hertfordshire, which is relevant in this case, as discussed below. The Companies House records indicate that the Complainant was incorporated in November 2004, and that Christopher Dellar is listed as sole Director and Lorraine Dellar as company Secretary for the Complainant. I can therefore confirm that Mr. Christopher Dellar established a real estate agency business in his own name, Chris Dellar Ltd., as alleged, and has carried on that business from November 2004, starting after he was made redundant by the Respondent.
Complainants should be encouraged to be more rigorous as to the quality of the complaints they file. Nevertheless, in the absence of any evidence to the contrary, I can assume that the Complainant here has begun to develop some reputation and goodwill, which over time will have given rise to common law rights that may well entitle it to restrain others from passing off their business as that of the Complainant by using the name Chris Dellar.
In addition, as noted above, the Policy defines "Rights" to include, but not be limited to, rights enforceable under English law. Thus, "Rights" can encompass some form of entitlement to a name that may yet be short of an enforceable claim under English law. In this case, Mr. Christopher Dellar has clearly established a business in his own name, and this too must be considered, whether or not the rights in his own name would be enforceable by the Complainant under English law. The name Chris Dellar is indeed distinctive and is not "wholly descriptive of the Complainant's business." In all the circumstances I do find on balance that the Complainant does have sufficient Rights in the name Chris Dellar to bring this Complaint under the Policy.
Consequently, the Expert finds that, for purposes of the Policy, the Complainant has Rights in respect of the name Chris Dellar, which is identical or similar to the Domain Names in dispute.
Abusive Registration
Under the second factor above, the Complainant must prove on the balance of probabilities that the disputed domain name, in the hands of the Respondent, is an Abusive Registration. An "Abusive Registration" is defined in paragraph 1 of the Policy 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 3(a) of the Policy.
3(a)(i)(B) and (C): Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name "as a blocking registration against a name or mark in which the Complainant has rights" or "primarily for the purpose of unfairly disrupting the business of the Complainant."
Based on the slim record in this case, including the records concerning both parties from Companies House, the timing of the registration of the disputed Domain Names (shown in documents provided by Nominet), as well as the lack of any contradiction by the Respondent, the Expert finds that it is more likely than not that the Respondent, Jonathan Hunt Ltd., being located in the same town as the Complainant and having had a former association with Mr Christopher Dellar, registered the Domain Names as some form of obstruction or retaliation against the Complainant, several months after the Complainant had commenced its own operations as an real estate agent in the same local community.
Consequently, the Expert finds that, on the balance of probability, the registration of the Domain Names were blocking registrations primarily for the purpose of disrupting the business of the Complainant, and accepts that the Domain Names have "been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant's Rights."
The Expert therefore concludes that it has been established, on the balance of the probabilities, that the Domain Names in the hands of this Respondent must be considered Abusive Registrations.
The Expert finds that the Complainant has Rights in respect of a name or mark which is similar to the Domain Names and that the disputed Domain Names, in the hands of the Respondent, are Abusive Registrations. The Expert therefore directs that the disputed Domain Names,
| Christopher Gibson | 9 May 2005 |
