573
Nominet UK Dispute Resolution Service
DRS 00573
Quest Motors (Maldon) Limited -v- Internet Assist Limited
Decision of Independent Expert
Complainant: | Quest Motors (Maldon) Ltd |
Country: | GB |
Respondent: | Christopher Clarke |
Country: | GB |
questmotors.co.uk ("the Domain Name")
The Complaint was lodged with Nominet on 9 September 2002. Nominet validated the Complaint and notified the Respondent of the Complaint on 11 September 2002 and informed the Respondent that he had 15 days within which to lodge a Response. Internet Assist Limited responded on behalf of the Respondent on 12 September 2002. Nominet informed the Complainant that it had 5 days to file a Reply and a Reply was filed on 17 September 2002. Mediation did not achieve a resolution of this dispute. On 2 October 2002 the Complainant paid Nominet the appropriate fee for a decision of an Expert pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service Policy ("the Policy").
On 9 October 2002, Cerryg Jones, the undersigned, ("the Expert") 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.
It is first necessary to deal with any matters arising from the fact that the Complainant has named Internet Assist Limited ("IAL") in the formal part of its Complaint as the Respondent whereas, according to Nominet's WHOIS search facility, the domain name in dispute has been registered for Christopher Clarke. It is clear from the Complaint, the Response and Reply, and from the correspondence with Nominet, that Mr Clarke has been notified of all material developments and has authorised IAL to act on his behalf. In these circumstances, I shall proceed to a decision on the basis that Mr Clarke is the Respondent to the Complaint.
The Complainant is a car dealership for Vauxhall vehicles that is based in Maldon, Essex. The Complainant states that "Quest Motors" has been its primary business name for over 70 years and asserts that it is part of a group of three companies, which all share the Quest Motors name. A Companies House printout, attached to the papers given to the Expert in connection with this matter, substantiates that the Complainant holds a Companies House registration for Quest Motors (Maldon) Limited.
The Respondent owns IAL, which has an office in Maldon that is said to be within walking distance of the Complainant's dealership. There is a dispute between the parties as to whether IAL sells domain names. IAL states that it has registered a number of generic domain names purely for its own business purposes, including the development of portal sites. According to a WHOIS search, the Respondent registered the domain name on 14 May 2000.
On discovering that the domain name in dispute was registered to the Respondent, the Complainant's representative, Travis Coleman, called the head office of IAL in Kingston Upon Thames, and, after several attempts, spoke to the Respondent on 27 June 2002. Mr. Coleman asserts that he introduced himself as the Managing Director of Colewood Internet Limited, and asked if it would be possible to obtain the name on behalf of a client. Mr. Clarke is alleged to have asked whether Mr Coleman's client was Quest Motors. Mr Coleman says that he confirmed his client's identity to the Respondent.
The Complainant alleges that Mr. Clarke confirmed that he would be happy to transfer the name for a sum of money, to be decided by his colleague, Ian Taylor, of IAL, who subsequently dealt with the issue on Mr Clarke's behalf. Mr Coleman states that he asked the Respondent for a guideline of the likely costs involved in obtaining the domain name and was allegedly told by the Respondent that: "typically they are sold for whatever the purchaser is willing to pay".
Mr Coleman subsequently spoke to Mr Taylor on 9 July 2002 and he sent an email to Mr Taylor the same day that is alleged to have summarised the main points of Mr Coleman's conversations with both Mr Clarke and Mr Taylor. Mr Coleman says that during his conversation with Mr Taylor he offered to pay the Respondent's out-of-pocket expenses relating to the cost of transferring the domain name. The subsequent email increased the offer to purchase the domain name for an amount equal to the Respondent's out-of-pocket expenses plus a further £100.
On 19 July 2002, Mr Taylor replied by email stating that he had discussed the issue with the Respondent and that "we'd be looking more in the region of £2000." It is said that Mr Coleman assured Mr Taylor that the Complaint would be able to pay the sum requested and that he asked for an invoice to be sent to him. The Complainant subsequently received a letter and invoice from Mr Taylor dated 20 August 2002, which confirmed that the Respondent was willing to sell the domain name for £2000 plus VAT, and enclosed an invoice for that amount. The invoice was in the name of IAL and bore the Respondent's address.
The Complainant asserts that the domain name is identical or similar to the name and mark in which the Complainant has rights.
The Complainant asserts the domain name is an abusive registration because it was registered by a person with the necessary knowledge to take advantage of a long established company well known in his local area, in order to sell the name back at an inflated price.
It is alleged that, in his initial telephone conversation with Mr Coleman, the Respondent confirmed that IAL purchased many domain names with the intention of selling them to people whose trading name is the same or similar.
Respondent:The Respondent disputes that IAL registers domain names for the purpose of selling them to third parties. The Respondent claims that IAL has only registered generic names for its own business purposes or to use them in relation to portal sites. It is asserted that the domain name was not registered with Maldon Quest Motors in mind and that Companies House searches reveal that there are five other companies that incorporate "Quest Motors" as part of their corporate name. The Complainant in its Reply asserts that three of these companies are part of its group of companies.
It is claimed that the Respondent never intended to sell the name when he first registered it and that the Complainant first approached the Respondent in order to buy the domain name.
Paragraph 2 of the Policy requires that for the Complainant to succeed it has to prove to the Expert on the balance of probabilities, that it has rights in respect of a name or mark identical or similar to the domain name and that the domain name in the hands of the Respondent is an abusive registration (as defined in paragraph 1 of the Policy).
Complainant's RightsThe only evidence in the documentation submitted as part of this dispute that the Complainant has any rights in the name Quest Motors is a Companies House printout which shows that Quest Motors (Maldon) Limited was incorporated in 1988. The Complainant asserts that it has been trading under that name for seventy years and is part of a group of companies that use this name. The Respondent, however, has not put those assertions in issue. Accordingly, the Expert is prepared to accept on a balance of probabilities that the Complainant has rights in the name "Quest Motors (Maldon) Limited." Although this name is not identical to the domain name the Expert finds that the Complainant has rights in respect of a name or mark that is similar to the domain name.
Abusive RegistrationThe Complainant also has to show that the domain name is an abusive registration. Paragraph 1 of the Policy defines this as a domain name which either:
A non-exhaustive list of factors, which may be evidence of an abusive registration, are set out in paragraph 3a of the Policy. However, these are only examples of conduct, which may be evidence that a domain name is an abusive registration. The Complainant alleges that the domain name is an abusive registration as a result of paragraph 3a i A of the Policy which describes one of the factors indicative of an abusive registration as follows:
"Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name:
A. primarily 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;"
In the Expert's view the Complainant has discharged the burden of proof required under 3a I A of the Policy on the following grounds:
On a balance of probabilities, the evidence suggests that the Respondent knew of the existence of the Complainant when he registered the domain name. It is telling in that regard that the Respondent does not deny that he knew of the existence of the Complainant prior to his registration of the domain name. The address shown on IAL's invoice also reveals the close proximity of the parties.
The Respondent has not used the domain name for the purposes of e-mail or a website. Whilst this is not itself evidence of an abusive registration, this fact does not rest easy with the Respondent's assertion that domain names are registered by his business for the purposes of portal sites, especially since the domain name in dispute was registered over two years ago.
Mr Taylor's email of 19 July 2002 contained an offer to sell the domain name for £2,000 and his subsequent letter and invoice confirmed this. The offer is wholly disproportionate to the Respondent's out-of-pocket costs associated with acquiring the domain name, and constitutes strong evidence that the Respondent's primary purpose when he initially registered the domain name was to sell the domain name at an unjustifiable premium to the Complainant.
Accordingly, the Expert finds that the Domain Name is an Abusive Registration under 3 a i A of the Policy.
In the light of the foregoing findings, namely that the Complainant has rights in respect of a name or mark which is similar 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 be transferred to the Complainant.
Cerryg Jones
Date: 23 October 2002