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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Kutchenhaus Ltd v M D Contracting Ltd [2008] DRS 5788 (20 July 2008) URL: http://www.bailii.org/uk/cases/DRS/2008/5788.html Cite as: [2008] DRS 5788 |
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1. PARTIES:
Complainant: Kutchenhaus Limited
GB
Respondent: M D Contracting Limited
GB
2. DOMAIN NAME:
nobilia.co.uk ("the Domain Name").
3. PROCEDURAL BACKGROUND:
This dispute was entered into the Nominet system on June 9, 2008. A hard copy of the Complaint was received in full by Nominet on June 10, 2008. That day Nominet validated the Complaint and on June 11, 2008 took appropriate steps to notify the Respondent of the Complaint.
No Response was received from the Respondent so informal mediation was not possible.
On July 14, 2008, the Complainant paid the fee to obtain the expert decision pursuant to paragraph 21 of the procedure for the conduct of proceedings under the Nominet Dispute Resolution Service ("the Procedure").
On July 15, 2008, Alan L. Limbury, the undersigned, was selected as the Expert. On July 18, 2008 he confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as Expert in this case and further confirmed that he knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question his independence and/or impartiality.
4. OUTSTANDING FORMAL/PROCEDURAL ISSUES
Although Nominet appears to have used all available contact details in its attempts to transmit the Complaint to the Respondent, no Response has been submitted in compliance with paragraph 5(a) of the Procedure. Consequently, there are no exceptional circumstances and I will proceed to a decision on the Complaint in the absence of a Response, as required by paragraph 15(b).
5. THE FACTS
The Complainant is the licensee of the trademark NOBILIA, registered in the UK since 1971 under No. 966975 in respect of furniture in Class 20 by the Complainant's parent company, Nobilia-Werke J. Stickling GmbH & Co, the largest kitchen manufacturer in Germany. The Complainant trades under the names 'Kutchenhaus' and 'Nobilia', selling and distributing in the UK kitchens manufactured by its parent.
The Respondent registered the Domain Name on July 3, 2006. The Domain Name does not lead to an active web site.
In response to a letter from the Complainant dated May 7. 2008, a director of the Respondent replied:
"Despite the problems MD Contracting Ltd have had with your clients products in the past and their failure to address them, if your clients would like the domain name we would consider selling it. Perhaps your client would like to make an offer".
6. THE PARTIES' CONTENTIONS
Complainant
The Complainant says it has rights in the Domain Name by virtue of its corporate relationship with its parent; its licence to sell Nobilia kitchens in the U.K. and its licence to use the U.K. registered trademark NOBILIA.
Further, the Complainant says the Domain Name is abusive because:
(a) it was registered primarily for the purpose of selling it, since it has not been used since registration and the Respondent has never traded under that name;
(b) it was registered unfairly to disrupt the Complainant's business, as a blocking registration and in retaliation for some perceived past failure on the part of the Complainant.
Respondent
As mentioned, there is no Response.
7. DISCUSSIONS AND FINDINGS
GENERAL
Under paragraph 2 of the Dispute Resolution Service Policy ("the Policy") the Complainant is required to show, on the balance of probabilities, that;
(1) it 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.
In the absence of a Response, I accept the facts stated in the Complaint and draw reasonable inferences from them.
Complainant's Rights
The trade mark NOBILIA on which the Complainant relies is not registered in its name but in that of its parent company. The Complainant asserts that it has a licence to use that mark. In DRS 00248, Seiko UK Limited v. Designer Time/Wanderweb (July 19, 2002), the Appeal Panel said:
"The requirement to demonstrate 'rights' is not a particularly high threshold test. It is satisfied in our view by the assertion of Seiko UK Limited that it is duly authorised by the trade mark owner to use the mark and to bring the Complaint. Where a complainant is a subsidiary or associated company of the trade mark proprietor, such an assertion will in our view generally be sufficient to demonstrate 'rights' in the absence of any good reason to doubt the veracity of that assertion".
In the absence of a Response, there is no good reason to doubt the Complainant's assertion that it has a licence to use the NOBILIA mark.
I conclude accordingly that the Complainant has rights in the mark NOBILIA and that the Domain Name is identical to that mark.
Abusive Registration
Abusive registration is defined in the Policy as:
"…a domain name which either;
(i) was registered or otherwise acquired in the 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 Respondent has made no active use of the Domain Name since it was registered. There is no evidence that the Respondent is known by or is trading under the name Nobilia. The response to the Complainant's letter of May 7, 2008 gives rise to the inferences that the Respondent was aware of the Complainant and of the NOBILIA mark when the Domain Name was registered and that the Domain Name was registered in order to retaliate for what the Respondent perceived as the Complainant's failure to redress past product failures, by blocking the Complainant from itself registering the Domain Name. Such conduct amounts to evidence of abusive registration under the Policy, paragraphs 3(a)(i)(B) and (C).
I therefore conclude that the Respondent's registration of the Domain Name constitutes an Abusive Registration.
8. DECISION
I find that the Complainant has proved, on the balance of probabilities, that it has rights in a name which is similar to the Domain Name and that the Domain Name is an Abusive Registration in the hands of the Respondent. I therefore direct that the Domain Name be transferred to the Complainant.
……………………………….
Alan L. Limbury
July 20, 2008