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	Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Care at Hand Ltd v Fry [2007] DRS 4543 (17 May 2007) URL: http://www.bailii.org/uk/cases/DRS/2007/4543.html Cite as: [2007] DRS 4543

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Nominet UK Dispute Resolution Service

DRS 4543

Care At Hand Limited – v – Dan Fry

Decision of Independent Expert

1. Parties

Complainant:

Care At Hand Limited

Essex

Respondent:

Dan Fry

Essex

2. Domain Name
3. Procedural Background

A Complaint in respect of (the "Domain Name") under Nominet UK's Dispute Resolution Service Policy ("the Policy") was received from the Complainant and forwarded to the Respondent by Nominet on 20 March 2007. No Response was received from the Respondent.

On 24 April 2007 Nominet notified the parties that it would appoint an Expert to determine the dispute on receipt from the Complainant of the applicable fees in accordance with paragraph 5d of Nominet's Procedure for the conduct of proceedings under the Dispute Resolution Service (the "Procedure"). The Complaint was referred for a decision by an Independent Expert following payment by the Complainant of the required fee on 25 April 2007. I was appointed as Independent Expert as of 3 May 2007 and confirmed to Nominet that I was independent of the parties and knew of no facts or circumstances that might call into question my independence in the eyes of the parties.

4. Outstanding Formal/Procedural Issues (if any)

There are no outstanding formal or procedural issues.

5. The Facts

The Complainant is a domiciliary care provider. Its business was originally carried on by Mr Mohunlall Rajcoomar as a sole trader under the name Care At Hand from December 1998 until it was incorporated as Care At Hand Limited in April 2005.

According to the Nominet WhoIs database, the Domain Name was registered on 24 January 2005. The registration was not renewed in January 2007 and is currently suspended. At the date of the Complaint the Domain Name did not resolve to any web page.

6. The Parties' Contentions

Complainant

In summary, the submissions on the part of the Complainant are as follows:

Mr Rajcoomar as sole trader and subsequently the Complainant from April 2005 have continuously carried on business providing social care services, and advertised extensively, under the name Care At Hand since 7 December 1998.

In January 2005, Mr Rajcoomar requested a company called Cyberscene who then carried out all his IT work to purchase a domain name for Care At Hand to trade with a website. He was invoiced and paid for the Domain Name. Subsequently, Cyberscene refused to provide Mr Rajcoomar with details of the login and password that he would require to set up a website using the Domain Name. He has therefore been hampered in his business and is unable to launch his website.

Mr Rajcoomar has not since had any dealings with Cyberscene. It is now defunct. He has discovered that the Domain Name was in fact registered in January 2005 in the name of Dan Fry who was an associate of Cyberscene. He has had email correspondence with Mr Fry in the course of which Mr Fry demanded £312 to transfer the Domain Name to the Complainant. Mr Rajcoomar has offered to pay the costs of the transfer.

The Complainant believes that Cyberscene and subsequently the Respondent have refused to provide the log-in details to allow access to the Domain Name in order to put pressure on the Complainant to agree to have Cyberscene design its website at exorbitant cost and with little professional expertise on their part. It submits that the Respondent registered the Domain Name for the purpose of selling it to the Complainant at a price in excess of his costs.

Respondent

The Respondent has not filed any response to the Complaint.

7. Discussion and Findings:

General

Although the Respondent failed to submit a Response to the Complaint, there is no scope for a decision in default under the Policy and Procedure. Under Paragraph 15c of the Procedure, I am entitled to draw such inferences from the Respondent's non-compliance with the Procedure as I consider appropriate but the Complainant is still required under clause 2b of the Policy to prove to the Expert on the balance of probabilities 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.

Complainants' Rights

"Rights" are defined in the Policy and in the Procedure. Rights "includes, but is not limited to, rights enforceable under English law."

The Complainant has asserted in its signed Complaint that its business was originally carried on by Mr Rajcoomar under the name Care At Hand and that the business has operated continuously under that name since December 1998. Annexed to the Complaint are documents evidencing the incorporation of the Complainant and of its subsequent use of the name and some earlier documents in the name of Care At Hand apparently dating from before the business was incorporated.

On the basis of the evidence submitted by the Complainant and the statements in the Complaint that have not been controverted by the Respondent, I am satisfied on the balance of probabilities that the Complainant is likely to have acquired sufficient goodwill and reputation in the name Care At Hand to found an action for passing off under English law. Accordingly, I find that the Complainant does have Rights in a name which is identical to the Domain Name (save only for the ".co.uk" suffix).

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 that may be evidence that the Domain Name is an Abusive Registration, is set out in paragraph 3 of the Policy. These include:

3ai Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily:

A for the purpose 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;

3aii 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;

…

3av The domain name was registered as a result of a relationship between the Complainant and the Respondent, and the Complainant:

A has been using the domain name registration exclusively; and

B paid for the registration and/or renewal of the domain name registration.

The Complainant has produced copies of email exchanges with the Respondent in March 2007 concerning the Domain Name. In an email dated 7 March 2007, Mr Rajcoomar reports that David Heath who had apparently owned Cyberscene had suggested that the Complainant pay £312 for the transfer of the Domain Name. The Respondent replied that Mr Rajcoomar should contact David Heath because "You purchased the domain via Cyberscene which David owned before it disappeared."

The next day Mr Rajcoomar offered to pay the Nominet costs of a transfer of £10 plus VAT but the Respondent replied that "The domain is owned by myself and David, on behalf of Cyberscene. We have already quoted the price of a domain renewal and transfer…".

In the absence of any Response to the Complaint and in light of the documents produced by the Complainant, I am satisfied that the Domain Name was registered as a result of a relationship between the predecessor business of the Complainant and the Respondent. It was registered by the Respondent on behalf of Mr Rajcoomar who was at the time carrying on business as a sole trader under the name Care At Hand. Although the Complainant has not produced a copy of an invoice in respect of the cost of registration or a receipt, it seems to me to be clear from the statements made in the Complaint and from the email exchanges that Mr Rajcoomar did pay for the registration of the Domain Name and that it was registered for his use.

I am also satisfied that the business carried on by Mr Rajcoomar was incorporated and is carried on by the Complainant and that as a result the Complainant does now stand in the shoes of Mr Rajcoomar for relevant purposes.

The factors set out at paragraph 3 of the Policy are indicative only as to what may amount to evidence of an Abusive Registration. Although the Complainant has not used the Domain Name exclusively, there is no evidence that it has been used at all. There is no suggestion in the email correspondence with the Respondent that any of the factors set out in paragraph 4 of the Policy, that may be evidence that the Domain Name is not an abusive registration, apply. The Respondent has not claimed any rights in a name similar to the Domain Name or made any preparations to use it legitimately.

In the circumstances, since the uncontroverted evidence is that the Domain Name was registered by the Respondent for the predecessor business of the Complainant and was paid for by the proprietor of that business and the Respondent has refused to transfer the Domain Name except on the basis of a significant payment, I consider that the Domain Name has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainants' Rights and that the Domain Name, in the hands of the Respondent, is therefore an Abusive Registration.

8. Decision

Accordingly, I find, on the balance of probabilities, that the Complainant has Rights in a name which is identical to the Domain Name and that the Domain Name in the hands of the Respondent is an Abusive Registration. I therefore determine that the Domain Name be transferred to the Complainant Care At Hand Limited.

Ian Lowe

17 May 2007