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	Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Precision Audio Visual Ltd v NJW Installations [2008] DRS 5412 (4 April 2008) URL: http://www.bailii.org/uk/cases/DRS/2008/5412.html Cite as: [2008] DRS 5412

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Nominet UK Dispute Resolution Service

DRS : 05412

PRECISION AUDIO VISUAL LTD –v- NJW INSTALLATIONS

Decision of Independent Expert

1. Parties

Complainant

Complainant: Precision Audio Visual Limited

Complainant Type: Business

Country: GB

Respondent

Respondent: NJW Installations

Country: GB

Disputed Domain Names

The domain names in dispute are: ; ; and .

2. Procedural Background

On 30 January 2008 the Complaint was lodged with Nominet UK in accordance with the Nominet UK DRS Policy and hard copies of the Complaint were received 4 February 2008.

On 5 February 2008 Nominet UK validated the Complaint.

On 14 February 2008, Nominet UK sent a copy of the Complaint to the Respondent and inter alia advised the Respondent that the procedure for the conduct of proceedings under the Dispute Resolution Service had been invoked and allowed the Respondent 15 working days to respond to the Complaint to file a Response to the Complaint.

On 10 March 2008, as no Response had been filed Nominet UK generated "no response to Complaint documents".

On 18 March 2008 Nominet UK received the relevant fee for these proceedings from the Complainant and Nominet UK proceeded to select and appoint an expert.

On 19 March 2008 James Bridgeman was selected as Expert.

On 27 March 2008 following a conflicts check, Nominet UK duly appointed James Bridgeman to act as Expert and the file was transmitted to the Expert pursuant to paragraph 11 of the DRS Procedure.

3. The Facts

The Complainant is a private limited company incorporated on 8 March 2006.

Mr Niall Whybrow, was a director of the Complainant company having been appointed on 8 March 2006. He resigned little more than two months later as of 21 May 2006.

The domain name was registered on 7 February 2006 by the Respondent.

The domain name was registered on 30 October 2006 by the Respondent.

The domain name was also registered on 30 October 2006 by the Respondent.

The Respondent is self-described in the WHOIS as a "UK sole trader" and according to the WHOIS, the Respondent has the same postal address as that given said Mr Niall Whybrow in the documents filed by the Complainant at Companies House. On the balance of probabilities the Complainant is correct in its claim that NJW Installations is the business name of said Mr Niall Whybrow.

4. The Parties' Contentions

Complainant's Submissions

The Complainant submits that the Respondent is Mr. Niall Whybrow who is described in the Complaint as the "ex-partner" of the principal in the Complainant company.

The Complainant was established on 8 March 2006. Mr Whybrow was a director on the date of incorporation. On 21 May 2006, Mr Whybrow resigned his directorship of the Complainant. .

Mr Whybrow purchased the domain name and was reimbursed. Mr Whybrow's fellow director was not aware that Mr Whybrow had registered the domain name in his own business name viz. NJW Installations, rather than in the name of the Complainant.

Following Mr Whybrow's resignation, the Complainant experienced problems with its email and upon investigation, it was found that Mr Whybrow had "retracted" the Complainant's account thus rendering the Complainant's business via email "at a total stand still".

Upon request Mr Whybrow redirected the domain name to a server which could be used by Complainant.

Upon investigation the Complainant discovered that Mr Whybrow had also registered the domain names: precisionaudiovisual.co.uk and precision-audiovisual.co.uk on 20 October 2006.

The Complainant challenged Mr Whybrow and asked why he has purchased domain names relating directly to the Complainant when he no longer had any active role in the company? Mr Whybrow replied "that he was doing something and that these names will be used for his new venture"

Complainant submits that the name "Precision Audio Visual" belongs to Complainant and has nothing to do with Respondent whatsoever.

Respondent is now in business with the former employer of the principal in the Complainant company and Complainant submits that Respondent will use these domain names to ruin the business which Complainant has built up over the last two years and into which the principal of Complainant has invested all of his savings.

Complainant requests that all three domain names at issue be transferred to the Complainant.

Complainant submits that documentation filed at Companies House relating to the termination of directorship of Mr Whybrow and the transfer of share ownership are all available.

Respondent's Submissions

No Response was received.

5. Discussion and Findings:

In order to succeed in these proceedings, paragraph 2(b) of the Nominet UK DRS Policy requires the Complainant to prove on the balance of probabilities that both elements of the test set out in paragraph 2(a) are present viz. 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.

Complainant's Rights

Each of the domain names in dispute is undoubtedly similar to the Complainant's company name.

The Complainant has therefore satisfied the first element of the test as set out in paragraph 2(a)(i) of the Nominet UK DRS Policy in respect of each of the domain names in dispute.

Abusive Registration

As defined in paragraph 1 of the DRS Policy, the concept "Abusive Registration" means

"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;"

The Complainant was incorporated on 8 March 2006. The Respondent was one of the first directors of the company and he resigned little more than two months later as of 21 May 2006.

The domain name was registered on 7 February 2006 by the Respondent. This was prior to the date of incorporation of the Complainant. While it appears unusual that the Respondent decided to register the domain name in his business name rather than in his personal name, there may well be a reasonable explanation for this. The Respondent has not delivered any Response or provided any explanation. Nonetheless, it would appear that at the time the domain name was registered it was not an Abusive Registration.

However the Respondent was reimbursed for the registration of the domain name and as contemplated by paragraph 3 (a) (v.) of the Nominet UK DRS Policy, the domain name was registered as a result of a relationship between the Complainant and the Respondent, the Complainant has been using the domain name registration exclusively; and the Complainant has paid for the registration of the domain name registration.

By the Respondent's retention of control over this domain name after he had resigned as director of the Complainant company and ceased to have any role in the business of the Complainant, and his failure to transfer the domain name into the name of the Complainant when requested, the domain name became an Abusive registration in his hands.

Subsequently, the Respondent registered the domain names and on 30 October 2006. These registrations took place after the Respondent had resigned as director of the Complainant corporation on 21 May 2006. Given the connection between the Respondent and the Complainant, these domain names were intended to have reference to the Complainant and/or its goodwill. The Complainant was not aware of these registrations and the Respondent was not given permission to register these domain names. On the evidence, and in the absence of any explanation from the Respondent it would appear that these domain names were registered by the Respondent primarily for the purposes of unfairly disrupting the business of the Complainant as contemplated by paragraph 3(a)(i)(C) of the Nominet UK DRS Policy.

In the circumstances, the Complainant has therefore satisfied the second element of the test as set out in paragraph 2(a)(ii) of the Nominet UK DRS Policy also in respect of each of the domain names in dispute.

The Complainant is therefore entitled to succeed in its application.

6. Decision

This Expert therefore directs that because the Complainant has established both elements of the tests set out in paragraph 2(a) of the Nominet UK DRS Policy in respect of each of the domain names, the Complainant should succeed in its application.

This Expert directs that the domain names ; ; and . be transferred to the Complainant.

James Bridgeman Date: 4 April 2008