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	Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Page the Packers v www.wight-holiday-hotels.co.uk [2006] DRS 3273 (21 February 2006) URL: http://www.bailii.org/uk/cases/DRS/2006/3273.html Cite as: [2006] DRS 3273

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Nominet Dispute Resolution Service

DRS 03273

Page the Packers –v- www.wight-holiday-hotels.co.uk

Domain Name

DECISION OF INDEPENDENT EXPERT

1. The Parties

The Complainant

The complainant in this case is named as Page the Packers, UK

The Respondent

The Respondent is www.wight-holiday-hotels.co.uk., UK

2. The Domain Name

The domain name in dispute is ('the Domain Name').

3. Procedural Background

This Complaint falls to be determined under the Nominet UK Dispute Resolution Service Procedure ('the Procedure') and the Nominet UK Dispute Resolution Service Policy ('the Policy').

The Complaint entered Nominet's system on 6th January 2006 and was validated on 12th January 2006. Nominet wrote to the Respondent allowing 15 working days, ie until 7th February 2006, for a Response. No Response having been received and the Complainant having paid the relevant fee, the Complaint was referred to me on 20th February 2006 for a Decision. On that date, I confirmed that I was not aware of any reason why I could not act as Independent Expert in this case nor of any matters which ought to be drawn to the attention of the parties which might appear to call my independence or impartiality into question.

4. Outstanding Formal/Procedural Issues

Neither the Complainant nor the Respondent in this case appears to be a legal entity.

The Complainant is named as Page the Packers, which appears to be a trading name of Mr Ken Page, who is identified as the Complainant's contact. However, as the Complainant is not legally represented it would be wrong to take an unduly technical approach to the Complaint. In the circumstances, I intend to treat Mr Ken Page t/a Page the Packers as the Complainant in this matter. All further references to the Complainant in this Decision should be construed accordingly.

The Respondent is www.wight-holiday-hotels.co.uk, which is of course a URL and not a legal entity. It is not entirely clear how something that is not a legal entity is capable of being registered by Nominet as a registrant, but given that a WHOIS confirms that the registrant is indeed as stated, I see no reason not to proceed accordingly.

No Response has been filed by the Respondent in this matter.

Having reviewed the file, I am satisfied that Nominet took all appropriate steps under paragraph 2(a) of the Procedure to bring the Complaint to the attention of the Respondent. In particular, Nominet wrote to the Respondent at the postal address provided by it and emailed the Respondent at both the email address provided by it and at [email protected].

Paragraph 15(b) of the Procedure provides:

'If, in the absence of exceptional circumstances, a Party does not comply with any time period laid down by the Policy or this Procedure, the Expert will proceed to a Decision on the complaint.'

I am aware of no such exceptional circumstances in this case.

5. The Facts

The Complainant trades as a removals and storage business in the Isle of Wight.

The Complainant states that he has traded under the name Page the Packers since 1986 and has spent over £10,000 on advertising since that time. Copies of the Complainant's advertising and publicity materials are exhibited.

The Complainant further states that the address of the Respondent is also the address of Mr Ken Bloomfield, who operates a rival removal and storage company to that of the Complainant in the same vicinity.

In the absence of a Response, the above assertions are not disputed and I therefore accept them as facts.

The Domain Name was registered by the Respondent on 26th September 2003. It does not appear to resolve to any active website.

6. The Parties' Contentions

The Complainant

The Complainant contends that he has Rights in a name that is identical or similar to the Domain Name by virtue of his having traded and advertised as Page the Packers since 1986.

He further contends that the Domain Name is an abusive registration in the hands of the Respondent because, in the circumstances set out above, the Respondent registered it primarily to prevent the Complainant from registering it despite his Rights.

The Complainant refers to another Complaint, in case DRS 03975. However, no Decision has been published in that case and I am not therefore in a position to take account of the proceedings in it.

The Respondent

As stated above, no Response has been filed in this case.

7. Discussion and Findings

Under paragraph 2 of the Policy:

'(a) A Respondent must submit to proceedings under the Dispute Resolution Service if a Complainant asserts to [Nominet], according to the Procedure, that:

 

(i) the Complainant 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.

(b) The Complainant is required to prove to the Expert that both elements are present on the balance of probabilities.'

Under paragraph 1 of the Policy the term 'Rights':

'includes, but is not limited to, rights enforceable under English law. However, a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant's business'.

The term 'Abusive Registration' is defined in paragraph 1 of the Policy as referring to 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.'

Paragraph 3 of the Policy sets out a non-exhaustive list of factors that may be evidence that a Domain Name is an Abusive Registration. Paragraph 4 sets out a non-exhaustive list of factors that may be evidence that it is not. However, all these factors are merely indicative of, and subject to, the overriding test of an Abusive Registration as set out above.

Rights

With regard to paragraph 2(a)(i), I find that the Complainant has Rights in the name Page the Packers. The name is distinctive in nature and the Complainant has used it in business since 1986. I accept that he has acquired unregistered trade mark rights in the name which would enable him to prevent others from using the name to pass off their services as his.

The Domain Name (ignoring the formal suffix and the spacing) is identical to the Complainant's name Page the Packers. Accordingly the Complainant has Rights in respect of a name or mark which is identical to the Domain Name. The first limb of the test under paragraph 2 is therefore satisfied.

Abusive Registration

Under paragraph 3(a) of the Policy, the factors which may be evidence that a registration is an Abusive Registration include:

'(i) Circumstances indicating that the Respondent has registered or otherwise acquired the domain name…

B as a blocking registration against a name or mark in which the Complainant has Rights'.

In this case, there is no evidence of any use by the Complainant of the Domain Name and there is no allegation that the Respondent has sought to sell it to the Complainant for a sum in excess of its documented out-of-pocket costs. It is accordingly a purely 'passive holding'. Nevertheless, in the absence of any Response and on the facts of the case, I am of the view that the Respondent can have had no legitimate purpose in registering the Domain Name and that it is, as the Complainant alleges, a blocking registration against a business competitor.

I conclude that the Domain Name was registered and/or has been used by the Respondent in a manner which took unfair advantage of, or was unfairly detrimental to, the Complainant's rights and is therefore an Abusive Registration in the hands of the Respondent. The second limb of the test set out in paragraph 2 of the Policy is satisfied accordingly.

8. Decision

The Complainant has established on the balance of probabilities that he has Rights in a name or mark that is identical to the Domain Name. He has also established on the balance of probabilities that the Domain Name, in the hands of the Respondent, is an Abusive Registration. Accordingly, the Complaint succeeds and I direct that the Domain Name be transferred to the Complainant.

Signed………………………………………….……………………………...…

Steven A. Maier

21st February 2006