Nominet UK Dispute Resolution Service

DRS 003327

Blogwire Hungary Szellemi Alkotast Corp v Zurna Networks

Decision of Independent Expert

1.	Parties: 

Complainant:	Blogwire Hungary Szellemi Alkotast Corp 
Country:		Hungary  

Respondent:	Zurna Networks
Country:		Turkey

2.	Domain Name:

gizmodo.co.uk (“the Domain Name”)

3.	Procedural Background:

The Complaint was lodged with Nominet on January 25, 2006.  Nominet validated the Complaint and notified the Respondent of the Complaint on February 8, 2006 and informed the Respondent that he had 15 days within which to lodge a Response. The Respondent did not reply.  On March 7, 2006 the Complainant paid Nominet the appropriate fee for a decision of an Expert pursuant to paragraph 7 of the Nominet UK Dispute Resolution Service Policy (“the Policy”).

Dawn Osborne, the undersigned, (“the Expert”) confirmed to Nominet that she knew of no reason why she could not properly accept the invitation to act as expert in this case and further confirmed that she knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question her independence and/or impartiality.

4.	The Facts:

The Complainant has operated a web magazine at gizmodo.com since 2002 and licences VNU to operate a web site with the Complainant’s content at gizmodo.co.uk. 

On November 13, 2004 the Respondent registered the Domain Name.

5.	The Parties’ Contentions:

Complainant:

The substance of the Complaint is as follows:

The Complainant has operated a web magazine at gizmodo.com since 2002 and licences VNU to operate a web site with the Complainant’s content at gizmodo.co.uk. VNU advertise the Gizmodo web sites in its UK publications. The Gizmodo branded websites received over 9.7 million page views globally and over 260,000 of those in the United Kingdom in December 2005. The Complainant has an application for a Community Trade Mark for the GIZMODO mark. 

In negotiations for transfer of the domain name the Respondent asked for a cash payment of USD$30,000 for transfer of the name. 

The Respondent directs traffic to the Domain Name to a web site Closo.com “an online marketplace”.    

Respondent:

The Respondent has not responded and is in default. 

6.	Discussion and Findings:

General

To succeed in this Complaint the Complainant has to prove to the Expert pursuant to 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, secondly, 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

In this case the first limb of that task is straightforward. The Complainant is the proprietor of goodwill in the unregistered trade mark GIZMODO in the UK. The Domain Name consists of the name or mark GIZMODO 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 Expert finds that the Complainant has rights in respect of a name or mark, which is identical to the Domain Name.

Abusive Registration

This leaves the second limb. Are the Domain Names, in the hands of the Respondent, Abusive Registrations? 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.”

A non-exhaustive list of factors, which may be evidence that the Domain Name is an Abusive Registration is set out in paragraph 3a of the Policy. There being no suggestion that the Respondent has engaged in a pattern of making Abusive Registrations, that the Respondent has given to Nominet false contact details or has any kind of relationship with the Complainant the only potentially relevant ‘factors’ in paragraph 3 are to be found in subparagraphs i and ii, which read as follows:

i	“Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily:

A.	for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly associated with acquiring or using the Domain Name;
B.	as a blocking registration against a name or mark in which the Complainant has Rights; or
C.	for the purpose of unfairly disrupting the business of the Complainant;”
ii	“Circumstances indicating that the Respondent 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.”    

The Expert is of the opinion that the Respondent’s conduct and use of the Domain Name is indicative of relevant abusive conduct. 

There is no obvious reason why the Respondent might be said to have been justified in registering the invented word Gizmodo as a .co.uk domain name two years after the Respondent launched a web site at gizmodo.com. The Respondent has not submitted a Response in support of its position. Further, the Complainant has produced correspondence which clearly shows that the Respondent requested $US 30,000 for transfer of the Domain Name. It is difficult to see what value the domain name has except in the light of the promotion of the GIZMODO brand by the Complainant. It certainly appears from the facts before the Expert that the circumstances of this case indicate that the Respondent has registered or otherwise acquired the Domain Name primarily for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly associated with acquiring or using the Domain Name. As this is so clear it is not necessary to consider the other possible relevant factors in Paragraph 3. 

Accordingly, the Expert finds that the Domain Name is an Abusive Registration within the definition of that term in paragraph 1 of the Policy as it has been used in a manner which took unfair advantage of the Complainant’s Rights as specified in Paragraph 3 (a)(i)(A) of the Policy as set out above.

7.	Decision:

In light of the foregoing findings, namely that the Complainant has rights in respect of a name or mark 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 gizmodo.co.uk be transferred to the Complainant.

______________________                                        ____March 23, 2006_____________                                      
         Dawn Osborne                                                                                       Date