Nominet UK Dispute Resolution Service

DRS Number 03596

Parties Keedo UK Limited v Paul Almond

Decision of Independent Expert

	1. Parties 

Complainant: Keedo UK Limited 
Country: UK    

Respondent: Paul Almond  
                         UK 

 
	2. Domain Name 

Keedo.co.uk 
 
This domain name is referred to below as the "Domain Name". 
 
	3. Procedural Background 

The Complaint was lodged with Nominet on 13 April 2006. Nominet validated the Complaint and notified the Respondent on the same date. The Respondent filed a Response in time on 10 May 2006. A Reply was filed by the Complainant in time on 15 May 2006. On 30 May 2006 Nominet informed the Complainant that it had not been possible to achieve a resolution to the Complaint by informal mediation and on 5 June 2006 the Complainant paid Nominet the appropriate fee for a decision of an Expert pursuant to paragraph 7 of the Nominet Dispute Resolution Service Policy (the Policy). 
 
Sallie Spilsbury, the undersigned (“the Expert”) has 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 impartiality. 
 
	4. Outstanding Formal/Procedural Issues  

On 15 June 2006 the Respondent sought permission to submit a non-standard submission in accordance with clause 13b of the Nominet Dispute Resolution Procedure (the Procedure). Under the Procedure the Respondent is firstly obliged to give a brief explanation of why there is an exceptional need for the non-standard submission. The explanation is passed to the Expert who has the discretion whether or not to receive the substance of the statement. The Respondent indicated that he would like to submit a further statement because the hard copy of the Complaint had been forwarded to him at an incorrect address, namely the address that the Complainant had provided rather than the (correct) address on the Nominet register. This administrative error meant that the Respondent had had only 1 day in which to prepare his Response (the Respondent had made the same point in a contemporaneous email to Nominet dated 7 May 2006). In an email to the Respondent dated 23 May 2006 Nominet confirmed that the Complaint had been sent to the incorrect postal address and invited the Respondent to make a non-standard submission for consideration by the Expert. 
 
Having considered the Respondent’s explanation the Expert exercised her discretion to accept the non-standard submission. Although the Respondent had seemingly received an electronic version of the Complaint which appears to have been sent to the correct email address, the 23 May 2006 email from Nominet to the Respondent suggests that the email would not have contained the annexes to the Complaint. In these circumstances it would be inequitable to deny the Respondent the opportunity to make an additional non-standard submission. 
 
Having decided to accept the non-standard submission the Expert allowed the Complainant to submit a non-standard submission in reply. The Complainant submitted this promptly on 22 June 2006. 
 
	5. The Facts 

The Complainant 
 
The Complainant was incorporated on 27 February 2006 under company number 5722934. It is described as a joint venture between Ms Victoria Macdonald and a South African company, Keedo International Proprietary Limited (KIPL). There are no documents or other information about the joint venture arrangements.  
 
The Complainant is not KIPL. The precise arrangements between KIPL and the Complainant are unclear. A company search for the Complainant is attached to the Complaint. KIPL is not shown to be a director or shareholder. 
 
KIPL is the South African manufacturer and distributor of the Keedo range of children’s clothing. It has been trading in South Africa for 12 years and the Keedo brand is well recognised in that country. KIPL supplies stock to the USA, Switzerland, Germany and a limited volume of units to a number of UK based stockists. There are currently no distribution or reseller agreements in place with these UK stockists. The Complaint states that UK stockists are not authorised to sell through the Internet nor through any branded channel. This arrangement between KIPL and UK stockists has been in place for less than 2 years during which period a very limited volume of stock has been sold in the UK. KIPL now wishes to expand its presence in the UK through online sales as part of a strategy of international expansion. The UK is considered to be a very important market because of the large expatriate South African community and because of the rapid take up of online sales. 
 
KIPL has applied for a community trade mark registration for the KEEDO word mark. The application was made on 13 March 2006 in classes 24, 25 and 35 to cover inter alia textiles and textile goods, clothing and retail services in connection with clothing. The application is progressing although the mark is not yet registered. 
 
KIPL is the proprietor of a number of trade mark registrations outside of Europe in South Africa, United States and Canada. Further applications have been made by KIPL for trade mark protection in China and Switzerland in addition to the above application for a community trade mark. 
 
The Complainant has already registered the Domain Names keedo.biz, Keedo.net and Keedo.eu. 
 
The Complainant provides no other information In the Complaint itself about any trading activities in which it has been engaged since incorporation in February 2006. However in its non-standard submission the Complainant lists the following activities that it has undertaken (stated to be amongst “numerous others”). These are: 
 
	• The commission and production of a catalogue to support web sales (2000 copies) 
	• The commission of an Internet site builder (the website is not yet operational) 
	• The holding of 2 showings of the product range and the sale of a few thousand pounds worth of stock 
	• The order of approximately £30,000 worth of Keedo merchandise from South Africa for sale on the website 
	• The opening of a bank account and credit card payment terminal 
	• Registering the company for VAT 
	• Retaining an accountancy firm 

The Respondent 
 
The Respondent registered the Domain Name on 24 January 2004, almost 2 years before the Complainant was incorporated. A Nominet WHOIS search shows that the Respondent is the registrant. 
 
The Respondent states that it registered the Domain Name to help promote the sale of children’s clothes. The Respondent’s wife is a director of a company called Honey n Dude Limited which imports and sells clothing manufactured by South African children’s clothing manufacturers, including Keedo. In his non-standard submission the Respondent describes himself as an unpaid assistant for Honey n Dude Limited liaising on purchases.  
 
The Complainant’s Reply exhibits a letter dated 11 May 2006 to Nominet from KIPL in which KIPL acknowledge that the Respondent purchased some excess stock from Keedo USA (KIPL’s US distributors) in early 2004. In the letter KIPL states that this was a one off sale and KIPL was not a party to the arrangement. This purchase is not in dispute between the parties. 
 
As to further matters there is a conflict in the evidence. The Respondent states that it has been in contact with KIPL and Keedo USA since 2003 and it has made several imports of stocks of Keedo clothing to sell on in the UK. It also states that the Respondent had made a number of inquiries to Keedo to become sole import agents in the UK “with favourable responses” (this is set out in the Response).  
 
In the 11 May 2006 letter from KIPL to Nominet referred to above both of the above statements are denied by KIPL. The letter states that “neither Mr Almond [the Respondent] nor Honey n Dude has any relationship with Keedo International”. The letter also records that Keedo USA has had no contact with the Respondent or Honey n Dude since the single transaction mentioned above had been concluded in 2004. 
 
The non-standard submissions by both parties re-iterate this factual dispute.  
 
The Respondent’s non-standard submission states the following: 
 
	• Honey n Dude Limited had been dealing with Keedo SA and Keedo USA for a number of years. It had not worked much with Keedo in 2005 because of the then personal circumstances of those running Honey n Dude but the company would like to continue dealing with Keedo and to continue selling children’s clothes imported from South Africa. 

	• Honey n Dude had expressed an interest in opening a full Keedo shop in the UK. Keedo were aware that Honey n Dude sold both Keedo and Naartjie clothing and had been made aware that the Domain Name had been registered. In support of this statement email correspondence between Keedo USA and the Respondent is attached. On 7 January 2005 Kathy Britton at Keedousa.com (presumably this is Keedo USA) emailed the Respondent asking whether the Respondent would be needing any new product. The Respondent replied indicating that it was looking to open a shop soon and would like Keedo to be part of the stock. The Respondent’s email closes by noting that a new shop would be an excellent opportunity for Keedo. There is no further information to show whether further stock was purchased by the Respondent or by Honey n Dude. 

	• In relation to Keedo SA (rather than Keedo USA) the non-standard submission exhibits email correspondence from 2004 initiated by the Respondent in January 2004. In response to an enquiry by the Respondent on 25 February 2004 Venita at Keedo.co.za wrote to the Respondent “I think we may have some perfect spring/summer stock available for you. Please contact Rob in the USA”. This correspondence seems to relate to the early 2004 purchased of Keedo stock in the US to which the Complainant refers in its Reply and which is not disputed by the parties or by KIPL. There is no documentation to indicate that the Respondent’s relationship with KIPL was progressed further. 

	• Honey n Dude had had a number of email enquiries through the Domain Name. Emails are exhibited from 2 potential customers enquiring about how to purchase Keedo clothes in the UK. These emails are dated 30 January 2005 and 23 August 2004. The Respondent’s replies are not disclosed. 

	• Honey n Dude had been passed “a number of sales opportunities” from Keedo in South Africa and the USA from UK and South African residents in the UK who had contacted Keedo SA and USA directly asking where they could buy Keedo clothes in the UK. This is evidenced by a copy email forwarded from kim@keedousa.com  (i.e. Keedo USA) on 12 February 2005 to the Respondent from a potential customer interested in buying Keedo clothes in the UK. In this email Keedo USA write to the Respondent “I hope you can help this customer”. No other instances are disclosed and no sales opportunities from KIPL are disclosed. 

In its non- standard Reply to the Respondent’s non-standard submission, the Complainant denies that Keedo were made aware that the Respondent had registered the Domain Name. The Complainant extracts what he calls “key points” from an undated email from David Robertson Director of Keedo International (the Expert is not clear whether this is KIPL or another company). The full text of the email is not attached to the submission. One of these so-called key points says that Mr Robertson has confirmed that Keedo were never informed of the Domain Name registration. Another so-called key point in Mr Robertson’s email is that Keedo SA has never had any relationship with the Respondent other than an enquiry to do business which was never taken further than introductory emails. The Complainant’s non- standard submission also states that Keedo will not be supplying any other stockists in the UK once the Complainant’s website is operational (which, the Expert notes, has not yet occurred). There is nothing to indicate that other stockists have been informed of KIPL’s decision and it does not yet appear to have been implemented. 
 
The Domain Name 
 
In February 2006 Mr Ross Macdonald, husband of one of the joint venture partners involved in setting up the Complainant, began researching the availability of the Domain Name for the Complainant. He found that it was being used by Winnington Park Rugby Football Club aka The Vagabonds. No printout has been made available to the Expert showing this website. In its Reply the Complainant states that the Domain Name was then being used as a “home site for a Rugby club”. Mr Macdonald, sent 2 emails to the webmaster, the Respondent, on 6 February and 2 March 2006 neither of which the Respondent replied to. The emails are attached to the Complaint. In the email of 6 February Mr Macdonald explained that his wife were about to start a catalogue and web based mail order business distributing the Keedo clothing range. He asked whether the Respondent would sell the Domain name for a nominal sum plus reasonable costs and indicated that he was sure that something suitable would be available as a replacement domain name which would be closer to the Rugby club’s name. 
 
Despite the emails not being replied to Mr Macdonald eventually managed to track down the Respondent’s contact details through a telephone number of the website and spoke to the Respondent. The Complaint sets out details of the conversation which are not disputed. The Respondent told Mr Macdonald that he had registered the Domain Name on behalf of a third party whom he did not name. The Complaint states that in a later conversation in March 2006 the Respondent indicated that the owner of the Domain Name was willing to sell it. Mr Macdonald immediately offered to pay £1,000 for it believing that this was a fair offer that would more than cover any costs incurred by the Respondent/owner. Thereafter there followed a sequence of text messages between Mr Macdonald and the Respondent. Copies of the text messages are exhibited to the Reply. 
 
On 3 April 2006 the Respondent’s text stated that “He [sic] was thinking more like £3500 for the domain name as he was going to get involved with the sa childrens clothes which I assume is what you want it 4 (sic)”. On 4 April Mr Macdonald sent a text to the Respondent indicating that £1000 was a fair offer which would more than cover costs. On 12 April no response having been received Mr Macdonald contacted the Respondent stating that he assumed that the offer of £1000 was rejected and that he was therefore forced to use the Nominet Dispute Resolution Service. On 13 April the Respondent sent a text stating “sorry but you need to increase your offer and you have no grounds to demand the domain”. 
 
Meanwhile the Complaint records that shortly after the telephone conversation during which Mr Macdonald had offered £1000 to purchase the Domain Name the name was removed from the link to the Rugby club. The URL was instead linked to a blank site. Between the period between submission of the Complaint and the Reply this changed again and the blank site had been changed to contain the following text  
 
“Welcome to Honey n Dude Online 
We are currently working on re-designing our web pages and apologise for the delay in bringing you our catalogue of spectacular designs from the designers at Naartjie and Keedo. 
If you have specific requests please contact us by email 
Sales @honeyndude.com 
Please watch this space our new site will be online soon 
5th May 2006”. 
 
The Reply states that Naartjie and Keedo logos also appear on the page. 
 
This account of the contact between the Complainant and the Respondent is not disputed in the Response, although the Respondent’s non-standard submission states that initially it did not wish to sell the Domain Name. It states that [the Complainant] “was very persistent with text messages from two separate mobile numbers and made a number of calls inquiring if we had decided to sell the domain and that we should just tell him how much we wanted. Our initial response is that we did not want to sell.” 
 
The Expert will seek to resolve the factual disputes between the parties insofar as she is able to do so in section 7 of this decision. 
 
	6. The Parties’ Contentions 

Complainant 
 
Rights 
 
The Complainant relies on the community trade mark application and other trade mark registrations and applications outside the UK to support the assertion that it has Rights in the KEEDO mark. It also asserts that the KEEDO brand is well known in South Africa and that there is a large expatriate South African community in the UK.  
 
The Respondent does not dispute the submissions made by the Complainant in relation to this issue. 
 
Abusive Registration 
 
The Complainant submits that the Domain Name constitutes an Abusive Registration. The Complainant does not cite specific provisions of the Policy to support this assertion. The Complaint relies on the evidence about the correspondence between the parties and in particular the Respondent’s counter offer to sell the Domain Name for £3500 as evidence of Abusive Registration. 
 
The Response states that the Respondent registered the Domain Name in good faith “to help promote the sales of the children’s clothes we sell which includes Keedo”... It also states that the Domain Name “was not registered for the purposes of selling or renting and it was not registered to unfairly block or disrupt the Complainant’s business and was in fact purchased a number of years before the Claimant decided to start its business…”. The Respondent’s position is that he does not believe that the registration is abusive and feels that the Complainant’s attempt to have the Domain Name transferred to it is “forcibly unfair and unwarranted”.  
 
In the Reply the Complainant points out a number of inconsistencies it believes arise between the Respondent’s submission and the background facts. It attaches the letter of 26 May 2006 referred to in section 5 above from KIPL. In relation to the Respondents’ assertion that the Domain Name was acquired in  good faith to promote the sale of Keedo clothes by the Respondent and his wife the Complainant points out that at the time of submission of the Complaint no website had been built even though the Domain Name had been registered some 2 years previously. In response to the Respondent’s assertion that the Domain Name was not registered for selling or renting the Complainant questions why the Respondent offered to sell it at a price in excess of acquisition cost. 
 
Based on its researches and the Respondent’s behaviour the Complainant asserts the following (as summarised by the Expert): 
 
	• The Respondent originally registered the Domain Name in good faith with a view to setting up a business to sell children’s clothes including Keedo clothes. The Respondent only purchased 1 consignment in 2004 and had had no further relationship with Keedo. 
	• The Respondent then lost interest in the venture. This is evidenced by the use of the Domain Name in connection with the Respondent’s Rugby club where his activities include running the club website. 
	• When the Complainant approached the Respondent the Respondent saw it as an opportunity to make a profit. 
	• The Complainant assumes that the third party on whose behalf he purports to have registered the Domain Name is in fact the Respondent’s wife (who is a director of Honey n Dudes Limited). The Complainant points out that the Respondent has concealed this nexus. 
	• The Complainant also points out that in its text message of 3 April 2006 the Respondent stated that the owner of the Domain Name “was going to get involved with the sa childrens clothes” (italics for emphasis) whereas in its Response it infers the business is already a going concern.  
	• Subsequent to the submission of the Complaint there has been “a thinly disguised effort by the Registrant to give the appearance of using the domain legitimately and of there being an ongoing business”. 

In its non-standard submission the Complainant states that one of the “key points” in the email from Mr Robertson of Keedo International is that without any agreement to distribute or sell Keedo in the UK the Respondent registered the Domain Name and misrepresented their status as distributors of Keedo clothing in the UK. In fact, the email states, the Respondent never had any relationship with Keedo in South Africa other than an enquiry to do business which was never taken further than the introductory emails set out in the Respondent’s non-standard submission. 
 
The Expert will consider the parties’ submissions in the following section of this decision. 
 
	7. Discussion and Findings: 

General 
 
Clause 2a of the Policy provides that a Respondent must submit to proceedings under the Dispute Resolution Service if a Complainant asserts 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. 
 
The Complainant is required to prove to the Expert that both elements are present on the balance of probabilities (clause 2b of the Policy). 

Complainant’s Rights 
 
Rights are defined in clause 1 of the Policy as including but 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 Complainant’s Rights 
 
As made clear from the previous paragraph the definition of Rights under the Policy is not restricted to rights enforceable under English law. This is particularly important in this matter. From a technical perspective the question of what legal rights exist and who owns them in this case raises many complex issues. The Expert is mindful that neither party has legal representation. No legal authorities have been cited and in her view it would be both inappropriate and unnecessary to try to resolve the many considerations that would arise if the Complaint were legal proceedings. 
 
The clear facts are these: 
 
Keedo is undoubtedly a brand that has substantial goodwill in certain parts of the world- most obviously in South Africa and the USA. The brand appears to have a minimal trading presence in the UK as matters stand. The evidence before the Expert suggests that the brand is known in some quarters in the UK and is associated with children’s clothes originating from a particular manufacturer. This is supported by the email enquiries that the Respondent has received about UK outlets for Keedo clothes (see section 5 above) and the statement in the Complaint that there is a market among South African expatriates living in the UK for the purchase of Keedo clothes. There are currently no Community or UK trade mark registrations in respect of the Keedo brand- although a CTM application has been made by KIPL. There are registrations outside of Europe owned by KIPL.  
 
The Respondent disputes none of the above statements. 
 
For the purposes of this Complaint the Expert finds that the Keedo brand is sufficiently distinctive of a particular brand of children’s clothes to generate Rights in the mark. These Rights arise from the customer recognition and reputation of the brand coupled with Keedo’s low key trading presence in the UK. This finding of Rights is supported by the existing trade mark registrations outside Europe.  
 
The next question relates to ownership of the Rights, keeping in mind that the Policy requires the Complainant to show that it has Rights.  
 
Clearly the proprietor of the trade mark registrations and ongoing applications is KIPL rather than the Complainant. The Complainant has produced no evidence of any licence, distribution or agency agreement it has with KIPL. There is no evidence that the Complainant has exclusive status as KIPL’s UK representative, at least until its website become operational which has not yet occurred (this is stated in the Complainant’s non-standard submission). There is nothing to indicate that the Complainant has acquired or will acquire on registration any Rights in KIPL’s trade mark registrations.  In terms of unregistered Rights the Expert notes that the Complainant’s trading and marketing activity since its incorporation in February 2006 has been almost non existent (the Complainant’s non-standard submission states “the holding of 2 showings of the product range and the sale of a few thousand pounds worth of stock”). The Complainant’s website is not yet operating. The bulk of the Complainant’s activities have been preparation for trading. These activities fall short of conferring Rights in the Keedo brand in the hands of the Complainant. Members of the UK public with an interest in children’s clothes might recognise the Keedo brand but there is no evidence to support a finding that the brand would be associated with the Complainant.   
 
The Expert recognises that the Complainant has an interest in the Keedo brand but this does not equate to Rights. On the evidence before her the Expert finds that the Complainant does not own Rights in the Keedo brand. As such it has no standing to bring this Complaint under the Policy. 
 
The Expert has considered whether she is under a duty to seek further information from the Complainant to clarify its submissions that it owns Rights. On careful reflection she has concluded that it would not be appropriate to do so. Clause 2(b) of the Policy places the onus on the Complainant to make out its case on the balance of probabilities. Any request for further information by the Expert would amount to positive assistance in discharging its burden. This would be inequitable towards the Respondent. The Expert is supported in this view by the fact that the Complainant has the backing of KIPL in bringing the Complaint (as evidenced by the letter to Nominet from KIPL which is attached to the Complainant’s Reply). KIPL is clearly a relatively large and international business. It would have been in a position to seek professional advice about the Complaint had it thought it appropriate to do so. The Respondent does not have the benefit of such influential support. The intervention of the Expert is therefore not required to redress any inequality of resources between the parties. 
 
If the Complainant had been able to prove ownership of Rights in the Keedo mark it is quite clear that the Domain Name is identical to that mark.  The Complaint fails on the ground of ownership of Rights per se. 
 
The Complainant has failed to meet the first criteria, ownership of Rights in a mark that is identical or similar to the Domain Name. 
 
Even if the Expert’s finding of a lack of Rights is wrong the Complaint would still fail under the second criterion, abusive registration. This will now be discussed. 
 
Abusive Registration 
Abusive Registration is defined in clause 1 of the Policy as follows: 
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 
 
Clause 2 of the Policy sets out a list of non exhaustive factors which may be evidence that the Domain Name is an Abusive Registration. 
 
Registration or Acquisition 
The Complainant does not submit that the registration of the Domain Name in 2004 was itself abusive. In particular the Reply acknowledges that “the Respondent originally registered the Domain Name in good faith with a view to setting up a business to sell children’s clothes including Keedo clothes.”  
 
The Expert concurs with the Complainant’s approach. The Complainant did not exist at the time that the Domain Name was registered. KIPL might wish to object to registration of the Domain Name but it is not the Complainant in this matter. It follows that Mr Robertson’s submission contained in the Complainant’s non-standard submission that without any agreement to distribute or sell Keedo in the UK the Respondent registered the Domain Name is not relevant to this Complaint and will not be considered further.  
 
Use of the Domain Name 
 
Clause 2a of the Policy provides a non-exhaustive list of factors which may be evidence that the Domain Name has been used in a manner which took unfair advantage of or was wholly detrimental to the Complainant’s Rights. These include the following ground which is most relevant to the Complaint: 
ii Circumstances indicating that the Respondent is using the Domain Name in a way that has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant. 

Clause 2b of the Policy provides that failure on the Respondent’s part to use the Domain Name for the purposes of e-mail or a website is not in itself evidence that the Domain Name is an Abusive Registration. 
 
This Complaint turns on complex and disputed facts. Before proceeding further it is necessary to resolve such facts insofar as the evidence before the Expert allows for this. 
Having reviewed the evidence the Expert makes the following findings which are supported by the email correspondence attached to the Respondent’s non-standard submission. 
 In January 2004 the company with which the Respondent is associated (Honey n Dude Limited) approached KIPL in South Africa to import Keedo clothes into the UK. This approach was ultimately handled by Keedo through its USA distributor (Keedo US) and a consignment of clothes was supplied to the Respondent in early 2004. There is nothing to indicate that KIPL in South Africa had further dealings with the Respondent. However the email correspondence exhibited to the Respondent’s non- standard submission suggests that the relationship with Keedo USA continued, if sporadically. It appears to have continued without KIPL’s knowledge or approval but nevertheless it did continue. Keedo USA seem to have contacted the Respondent to check whether any further clothes would be ordered (email from Kathy at Keedo USA dated 7 January 2005) and, most tellingly, on 1 occasion to have asked the Respondent whether he could deal with an enquiry from a UK customer on Keedo’s behalf (email from Kim at Keedo USA dated 12 February 2005). In these circumstances it does appear that a relationship of sorts continued between Keedo USA and the Respondent in such a way as to give the impression that the Respondent could expect to have an opportunity to deal with Keedo USA in the future.  
The Complainant’s submission that there was no further contact between Keedo and the Respondent after the purchase of the 2004 consignment is rejected for the reasons set out above. The Respondent remained in sporadic contact with Keedo USA to whom the South African company had directed him by email of 24 February 2004. There is no evidence to support the fact that the Respondent subsequently lost interest in the venture. In the non standard submission the Respondent explains the lack of activity in 2005 as due to the personal circumstances of those involved in Honey n Dude Limited. Additionally in early 2005 the Respondent wrote to Keedo USA that Honey n Dude was considering opening a Keedo shop. The Complainant submits that the Respondent saw the Complainant’s approach as an opportunity to make a profit. This point is considered further below in relation to the offer to sell the Domain Name for £3500. The Complainant asserts that during the pre-Complaint discussions the Respondent hid the connection between the respondent and the party on whose behalf the Domain Name was registered (i.e. his wife or Honey n Dude). The Expert fails to see the significance of this submission. However she notes that the Respondent has made the connection clear throughout this Complaint and the connection was also notified to Keedo in South Africa in the Respondent’s first approach to Keedo in January 2004 (email attached to Respondent’s non-standard submission). The Complainant picks up on the Respondent’s text message of 3 April 2006 that the Respondent stated that it was going to get involved in  South African children’s clothes whereas the submission suggest that this is already a going concern. The Expert does not find any such inconsistency. Throughout the Complaint the Respondent does not present its dealings with Keedo as an ongoing going concern. It refers to future plans to develop the business. It is also inappropriate to pour over the nuances of text communication when the very medium encourages an informal style of communication. 
The Complainant’s final submission in its Reply is that the Respondent had made a thinly disguised effort to give the appearance of using the Domain Name legitimately and of there being an ongoing business. This will be considered further below.  
The crucial issue for Abusive Registration under the Policy is whether the Respondent has used the Domain Name in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights.  
What use has there been of the Domain Name? In February 2006 when the Complainant first became aware of the Domain Name it was apparently linked to a Rugby club website. The Expert does not have details of this use. However it would be surprising if any such use unrelated to children’s clothing could be said to be taking unfair advantage of or be unfairly detrimental to the Complainant and, indeed Mr Macdonald on behalf of the Complainant appears to agree as his initial emails to the Respondent suggest that the Respondent could readily find a substitute Domain Name more appropriate for the club. 
Following negotiations between Mr Macdonald and the respondent the URL was instead linked to a blank site. Again this could not be said to be abusive towards the Complainant. 
 
Between the period between submission of the Complaint and the Reply the blank site had been changed to contain the following text (also set out above)  
 
“Welcome to Honey n Dude Online 
We are currently working on re-designing our web pages and apologise for the delay in bringing you our catalogue of spectacular designs from the designers at Naartjie and Keedo. 
If you have specific requests please contact us by email 
Sales @honeyndude.com 
Please watch this space our new site will be online soon 
5th May 2006”. 
 
The Keedo logo appears on the homepage. The Expert has no information as to whether the logo is a registered trade mark belonging to KIPL or any other party.  
The website is certainly detrimental to the Complainant’s commercial expectations to become the exclusive supplier of Keedo clothing in the UK. But is it unfair given the relationship that the Respondent had enjoyed with Keedo USA in the past and the very limited trading presence the Complainant had to-date in the UK?  
This is an extremely difficult question on the evidence before the Expert. The Respondent provides no convincing reason for the change of use of the Domain Name. On the other hand the Complainant’s assertion that it is a thinly disguised attempt to give the impression of an ongoing business is not supported by evidence and does not discharge the Complainant’s burden of proof to establish that the use is abusive. The Expert finds that the relationship between the Respondent/Honey n Dude’s and Keedo USA provided a commercial justification for the Respondent’s use of the Keedo name in a similar way as the Complainant asserts the Rights to the name in the present Complaint based on its developing relationship with KIPL. Essentially both Complainant and Respondent have similar hopes and expectations of their relationship with the Keedo network of companies at the time of this Complaint. The Complainant would have grounds for complaint if it could show that the Respondent was using the Domain Name in a way that caused customers to be confused into the belief that the Respondent was connected with the Complainant or was the same entity. But the Complainant’s reputation is not sufficiently strong to give rise to any such confusion. The notice on the website clearly refers to Honey n Dude Limited which lessens any risk of confusion. 
Although neither party has raised the point for the sake of completeness the Expert finds that the Respondent’s use of the Domain name is not use of or the making of demonstrable preparations to use the Domain Name in connection with a genuine offering of goods for the purposes of clause 4(a)(i)(A). if it had amounted to such activity this would be a factor to indicate that the Domain Name was not an abusive registration under the Policy.  
The Complainant also relies on the offer to sell the Domain Name to the Complainant for £3500 as indicating abusive use. The Expert finds nothing abusive in relation to this offer. Whilst this sum exceeds the initial cost of registration. the Expert nevertheless finds that the Respondent had commercial expectations of future dealings with Keedo and as such the Domain Name had a value to it beyond the registration fee or other out of pocket expenses. The figure of £3500 would not seem an unreasonable figure to reflect that value. This situation is to be distinguished from a party who inflates the value of the Domain Name beyond its genuine commercial worth to the Respondent or who registers the Domain Name in order to sell it at an inflated price. Both of these activities could well be abusive but they do not apply here.  
Accordingly the Complaint fails. However the Respondent should not be overly encouraged. The Expert’s decision turns on the position of uncertainty regarding the current relationship between Keedo and the Respondent, the current embryonic trading activities of the Complainant and the fact that the Complaint has been commenced by the Complainant rather than KIPL. If these circumstances change the question of abusive use of the Domain Name by the Respondent may also change. The future commercial value of the Domain Name in the hands of the Respondent is therefore open to doubt. 
 
	8. Decision 

The Expert finds that the Complainant has not proved on the balance of probabilities that the elements in paragraph 2 of the Policy are present. The Complainant has no Rights in a name that is identical or similar to the Domain Name and has not proved on the balance of probabilities that the Domain Name in the hands of the Respondent is an Abusive registration in relation to this Complaint. 
 
Accordingly the Expert finds that the Complaint fails. 

Sallie Spilsbury 
26 June 2006