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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Adventures Worldwide Ltd v Stir Media [2008] DRS 5759 (17 July 2008) URL: http://www.bailii.org/uk/cases/DRS/2008/5759.html Cite as: [2008] DRS 5759 |
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NOMINET DISPUTE RESOLUTION SERVICE
DRS 5759
Decision of Independent Expert
Adventures Worldwide Ltd
and
Stir Media
Complainant: Adventures Worldwide Ltd, t/a The Adventure Company
Country: GB
Respondent: Stir Media
Country: GB
adventurecompany.co.uk ("The Domain Name")
The Complaint was submitted to Nominet on 2 June 2008, and hard copies of the Complaint were received in full by Nominet on the same date. The Complaint was validated by Nominet and Complaint documents generated On 4 June 2008.
No response had been filed by the Respondent by 27 June 2008 and so mediation was not possible. On 2 July 2008, the Complainant paid the fee to obtain an Expert Decision pursuant to paragraph 6 of the Nominet Dispute Resolution Service Policy ("the Policy").
On 2 July 2008, Peter Davies, the undersigned, ("the Expert") confirmed to Nominet that he knew of no reason why he could not properly accept Nominet's invitation to him to act as an Expert in this case.
As the Procedural Background section above makes clear, Complaint documents were generated on 4th June 2008. By 27th June no Response had been received. The Expert is satisfied that Nominet has complied with its obligations under paragraph 2 of the Procedure, and the Complaint is deemed to have been received by the Respondent.
Complainant is a holiday operator running group adventure holidays worldwide. It uses the Domain Name to service its clients and potential clients through its web site and email and to operate its business via the web and email.
Respondent was contracted by IBUK, (a web development company working for Complainant) to acquire and register the Domain Name on Complainant's behalf some time before 1st November, 2003. The Domain Name was apparently transferred from Respondent to IBUK, and from IBUK to Complainant's ISP, Datanet. Respondent's name was not changed to that of Complainant in the course of the transfer and none of the parties involved in this transaction noticed this oversight.
Since rebranding to 'The Adventure Company' on 01 Nov 2003 Complainant has been using the Domain Name. Complainant stopped using the services of Datanet during November 2006, transferring management of the Domain Name to Netnames.
Complainant noticed in Spring 2008 that it was not listed as the registrant when trying to purchase a secure certificate. Since then Complainant has tried to contact Respondent to request transfer of the Domain Name to Complainant but has been unsuccessful in contacting them. Complainant tried to contact Respondent using the phone numbers on the web site stirmedia.co.uk but these do not seem to be operating. Additionally the web site stirmedia.co.uk does not seem to be functioning correctly which gives the impression that Respondent is no longer in business.
The incorrect registrant name should have come to light earlier, but Complainant did not appreciate the importance of the registration information. Respondent's address, as registrant for the domain name, is actually a previous address of Complainant up to December 2006. Complainant understands that this was changed when the Domain Name was transferred from Respondent to IBUK but the actual registrant name was overlooked. Complainant subsequently discovered that it had in its possession a Nominet 'confirmation of registration' which was sent to them at their previous address, but did not appreciate the importance of actioning this letter.
Complainant
Complainant is an established UK company with 40 permanent employees in the UK and carrying approximately 10,000 customers per annum on holidays to worldwide destinations. Complainant's use of the Domain Name regularly takes over 40,000 unique visitors to its web site per month.
Complainant has rights in the name "The Adventure Company", having traded under that name since 2003, generating a substantial body of marketing material and servicing clients via its website.
The Domain Name is identical, or similar to Complainant's trading name.
The Domain Name in the hands of the Respondent) is an abusive registration. It was registered by Respondent in the course of a prior relationship between Complainant but this relationship no-longer exists. Complainant is unable to contact Respondent and is unsure if they are still in business.
Complainant does not believe that Respondent, as registrant of the Domain Name, intended to have the Domain Name registered abusively or unfairly. It was simply an oversight on the part of all parties involved that the registrant was not changed when the Domain Name was transferred from Respondent after they had acquired it on behalf of Complainant.
Respondent
No response has been received.
General
Paragraph 2 (a) and (b) of the Nominet DRS Policy states that in order to succeed the Complainant must show that:
1. The Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
2. The Domain Name, in the hands of the Respondent, is an Abusive Registration.
Complainant bears the burden of proof and must prove both elements on the balance of probabilities. In the absence of a response from Respondent the Expert will consider the complaint on the basis of the available documentation and provide a decision accordingly.
This complaint is the culmination of a chain of contractual relationships, of inadvertent omissions by the parties and the apparent cessation of trading on the part of Respondent. Complainant is using of the Domain Name and the matter at issue is one of registered ownership. Respondent cannot be contacted and may, on the basis of Complainant's submissions, have ceased trading. Complainant does not believe that Respondent's registration of the Domain name was abusive in the sense that Respondent sought unfair advantage at Complainant's expense at the time of registration or subsequently. Abuse in this case equates to no more than an inadvertent failure to transfer the Domain Name to Complainant and inaction thereafter on the part of Complainant and other parties acting for it.
Complainant's Rights
Complainant makes a convincing case that it has rights in the name identical or similar to the Domain Name. Brochures and correspondence dating back to March 2003 are submitted in support and it appears that Complainant has established significant goodwill in the name. None of Complainant's assertions are contested and on the evidence before me, and the balance of probabilities, I find that Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name.
Abusive Registration
Paragraph 3 of the DRS Policy sets out a non-exhaustive list of elements which might constitute evidence of an abusive registration. For the most part, these concern actions by Respondent which might amount to bad faith attempts to interfere with Complainant's business or otherwise obtain unfair advantage. Included in this list however, under Paragraph 3.a.(v). of the Policy, is the situation where:
v. 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.
On the basis of the information before me, I find that the facts of this case fall within the contemplation of this paragraph of the Policy and that the registration is an abusive registration in the hands of Respondent.
I find that Complainant has succeeded in establishing Rights in respect of a name or mark which is identical or similar to the Domain Name and that the Domain Name, in the hands of the Respondent, is an Abusive Registration. Accordingly I direct that the Domain Name be transferred to Complainant.
Peter Davies
17 July, 2008