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Nominet UK Dispute Resolution Service |
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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Harry Corry Ltd v Morrison [2005] DRS 03028 (26 November 2005) URL: http://www.bailii.org/uk/cases/DRS/2005/3028.html Cite as: [2005] DRS 03028, [2005] DRS 3028 |
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Nominet UK Dispute Resolution Service
DRS 03028
Harry Corry Ltd v Robert Morrison
Decision of Independent Expert
Complainant: Harry Corry Ltd
Country: GB
Respondent: Robert Morrison
Country: Malta
harrycorry.co.uk
("the domain name")
Nominet received hard copy of the complaint dated 6 October 2005 in full on 11 October. On the same day, it sent the Respondent notice of the complaint, informing him that he had 15 working days to respond. No response was received. Informal mediation not being possible, on 4 November Nominet gave both parties notice that its file would be closed unless it received the appropriate fees for the matter to be referred for an expert decision. The fees were received on 11 November.
On 22 November I, Mark de Brunner, agreed to serve as an Expert under Nominet's Dispute Resolution Policy and Procedure. I confirmed that I am independent of each of the parties, and that there are no facts or circumstances that might call into question my independence.
There are email delivery failure reports on file, generated in connection with Nominet's attempts to notify the Respondent of the complaint and, subsequently, of the fact that the case would be referred to an expert if the appropriate fees were paid. I need to decide what to make of those delivery failure reports.
My starting point is that those registering domain names with Nominet agree to keep Nominet up to date with their contact details. The Dispute Resolution Service Procedure then says that Nominet will send a complaint using, at their discretion, any of a range of means – including
- email to the Respondent at the contact details shown as the registrant or other contacts in the domain name register database entry for the domain name in dispute
- email to postmaster@
In the event, Nominet sent the complaint and subsequent correspondence to both [email protected] and [email protected] (an email address for the Respondent held on Nominet's records). The delivery failure reports relate to the first of these email addresses.
Given that
- it is the Respondent's obligation to keep his contact details with Nominet up to date; and that, in any event,
- there are no delivery failure reports for the second address
I am satisfied that Nominet did what it could to notify the Respondent of the complaint and of how that complaint was being handled. I therefore propose to proceed on the basis that the Respondent has been properly notified of proceedings under the Dispute Resolution Service.
I accept the following as facts.
The Complainant sells curtains, bedding and other soft furnishings – as well as related goods – in 36 stores across Northern Ireland and Scotland. The business was incorporated ('Harry Corry Limited') in Northern Ireland in 1977 and the company has been trading since then, spending a considerable amount promoting its name. By way of example, there is an invoice in support of the complaint, showing that the Complainant paid £70,000 to Ulster TV in September 2004 to sponsor the Kelly Show. The Complainant has registered the domain name harrycorry.com.
The domain name at issue was registered on 9 June 2004. It resolves to a webpage headed 'harrycorry.uk.co' with the subtitle 'What you need, when you need it'. The page contains links to other businesses – in the main, these appear to be suppliers of soft furnishings, though there are also businesses offering other goods and services.
Complainant
The Complainant says it has rights in the name Harry Corry and that the domain name is an abusive registration because
- it makes use of the Harry Corry brand to attract custom and divert business to rival suppliers
- it is being used in a way that confuses customers into believing that rival suppliers are connected with or endorsed by the Complainant
Respondent
There has been no reply.
General
To succeed in this complaint the Complainant must prove, on the balance of probabilities, that
- it has rights in respect of a name or mark which is identical or similar to the domain name; and
- the domain name, in the hands of the Respondent, is an abusive registration.
The DRS Procedure says that, in the absence of exceptional circumstances
- if a party does not comply with any time period laid down in the DRS Policy or Procedure, the expert will proceed to a decision on the complaint; and that
- if a party does not comply with any provision in the Policy or Procedure, the expert will draw such inferences as he considers appropriate.
I am not aware of any exceptional circumstances here and so propose to proceed to a decision. The approach to be adopted where there is no reply is well established: if the Complainant can make out a prima facie case, that case demands an answer. In the absence of an answer, the complaint will ordinarily succeed. So the question becomes whether the Complainant has made out a prima facie case.
Complainant's Rights
The Complainant has been trading for many years under the name Harry Corry Limited and has spent a considerable amount promoting its brand. It has clearly built up goodwill and therefore rights in the name Harry Corry.
Ignoring the 'co' and 'uk' suffixes (as generic features of the domain name registry itself) I conclude that the Complainant has rights in a name that is identical to the domain name.
Abusive Registration
The Dispute Resolution Service rules define an 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.
The Policy contains a non-exhaustive list of factors that may be evidence that the domain name is an abusive registration. These factors include circumstances indicating that the Respondent
- registered the domain name primarily for the purpose of unfairly disrupting the business of the Complainant
- 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
These are squarely the claims of the Complainant. No direct evidence is offered either of the Respondent's motive in registering the domain name or of people having been confused into believing that the domain name is connected to the Complainant. But the web page at the domain name looks designed to pick up traffic intended for the Complainant and deliver it elsewhere. It therefore appears unarguable that the Respondent's use of the domain name puts the Complainant's goodwill at risk – either because the Complainant loses custom or because people diverted to other suppliers believe, wrongly, that they are dealing with the Complainant.
The underlying question remains whether the domain name was registered or has been used in a manner which takes unfair advantage of or is unfairly detrimental to the Complainant's rights. It seems clear that putting the Complainant's goodwill at such risk can only involve taking unfair advantage of or being unfairly detrimental to its rights.
At the very least, the Complainant has established a prima facie case that the domain name is an abusive registration. In the absence of an answer to that case, the complaint succeeds.
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.
In the light of that, I direct that the domain name be transferred to the Complainant.
Mark de Brunner
26 November 2005
