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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> CC Automotive Group Ltd v FP [2006] DRS 3830 (22 August 2006) URL: http://www.bailii.org/uk/cases/DRS/2006/3830.html Cite as: [2006] DRS 3830 |
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Complainant: CC Automotive Group Limited
Country: UK
Respondent: FP
Country: IT
switchcar.co.uk ("the Domain Name")
The Complaint was lodged with Nominet on July 14, 2006. Nominet validated the Complaint and notified the Respondent of the Complaint on July 18, 2006 and informed the Respondent that he had 15 days within which to lodge a Response. The Respondent did not respond and is in default. On August 14, 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.
The Complainant is a car dealership which has, through its predecessors, been trading as Switch Car for 20 years. The Complainant owns a UK registered trade mark for SWITCH CAR for vehicles and related services.
On May 12, 2004 the Respondent registered the Domain Name. The Respondent
has used the domain to provide a link to sites offering cars for sale including a link to Switch Car Liverpool.
Complainant:
The substance of the Complaint is as follows:
1. The Domain Name is identical or similar to a name or mark in which the Complainant has rights.
2. The Domain Name is, in the hands of the Respondent, an abusive registration.
3. The Complainant has rights in the Domain Name because it trades under the name Switch Car and has through its predecessors done so for the last 20 years. Since CC Automotive Group purchased the business in November 2005 it has spent in excess of £520,000 on above the line advertising on TV, Radio, National, Regional and Auto Press. The UK trademark "Switch Car" has been registered since April 19, 2002 under the name of Motor Range Limited. CC Automotive Group purchased all rights to this trademark in November 2005. On June 7, 2006 the trademark was assigned to CC Automotive Group in full.
4. The domain was purchased on the May 12, 2004 after the registration of the trademark. It provides goods and services under the name Switch Car.
5. The Respondent has deliberately used the web site to pass themselves off as Switch Car Liverpool, therefore confusing the public. The contact details registered by the Respondent are invalid [email protected]. The Respondent is deliberately trying to pass itself off as being in some way sponsored, affiliated or endorsed as the Complainant. The remedy requested is the transfer of the domain.
Respondent:
The Respondent has not filed a Response and is in default.
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
The Complainant is the proprietor of a registered trade mark and goodwill in the name SWITCH CAR. The Domain Name consists of the same name or mark 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
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 or that there is a relationship between the Complainant and the Respondent, the only potentially relevant 'factors' in paragraph 3 are to be found in subparagraphs i, ii and iv, 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."
Iv "It is independently verified that the Respondent has given false contact details to us".
The Expert is of the opinion that the Respondent's conduct and use of the Domain Names is indicative of relevant abusive conduct.
The Respondent has not responded and is in default. On the facts as presented and unchallenged there is no obvious reason why the Respondent might be said to have been justified in registering the Domain Name. The Respondent appears to be using the Domain Name to confuse Internet users into thinking that the car sales business connected to the Domain Name is connected or authorised by the Complainant. It also appears to be being used to disrupt the Complainant's business and as a blocking registration against a name in which the Complainant has rights. (The Complainant alleges that there are also false contact details but does not explain where these details were given by the Respondent and this element has not been taken into account.)
In the view of the Expert, in its registration and use of the Domain Name the Respondent took unfair advantage of and acted in a way unfairly detrimental to the Complainant's rights.
Accordingly, the Expert finds that the Domain Name is an Abusive Registration within the definition of that term in paragraph 1 of the Policy.
In light of the foregoing findings, namely that the Complainant has rights in respect of a name or mark which is identical 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, switchcar.co.uk be transferred to the Complainant.
Date 22 August 2006
Dawn Osborne