Nominet UK Dispute Resolution Service

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Cite as: [2003] DRS 1011

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NOMINET UK DISPUTE RESOLUTION SERVICE

DRS 1011

Somlo Antiques Limited –v- Dale Kisko

Decision of Independent Expert

1. Parties:

Complainant: Somlo Antiques Limited
Country: GB

Respondent: Dale Kisko
Country: GB

2. Domain Name:

somloantiques.co.uk

3. Procedural Background:

The Complaint was lodged with Nominet on 20 May 2003. Nominet validated the Complaint and notified the Respondent of the Complaint on 27 May 2003 and informed the Respondent that he had 15 days within which to lodge a Response. The Respondent filed a Response on 5 June 2003. Nominet informed the Complainant that it had 5 days to file a Reply. The Complainant did not file a Reply. Mediation did not achieve a resolution of this dispute. On 10 July 2003 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 10 July 2003, 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.

4. The Facts:

The Complainant is a London based antique wristwatch and pocket watch retailer. The Complainant states that it has been trading for over thirty years. 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 Somlo Antiques Limited, that the Complainant incorporated in 1977 and that the surname of its directors and company secretary (Somlo) corresponds with the first part of the Complainant’s name.

The Respondent registered the domain name on 21 July 200. No other information about the Respondent, or his reasons for registering the domain name, are given in his Response other than a sentence stating, “This name has been in the hands of this person for many years and has and has very good reason for having this name (sic).” The Response has not been signed.
Various assertions about the conduct of one the directors of the Complainant are made in the Response. It has not been necessary to consider these for the reasons set out below.

5. The Parties’ Contentions:

Complainant:

The Complaint is very brief. It contains the formal confirmations set out in Nominet’s on-line form of Complaint (that the domain name is identical or similar to the name or mark in which the Complainant asserts rights, and that in the hands of the Respondent the domain name is an abusive registration), and a brief paragraph setting out the nature of the Complainant’s business, and the fact that the name of the Complainant is derived from the family name, Somlo.
The Complaint does not explain why the registration is an alleged Abusive Registration, nor does it contain any supporting documentation from which one might be able to infer that the domain name in the hands of the Respondent is an abusive registration. The Complaint merely states that:
“We are currently having a new web site designed (at great cost) and may wish to use somloantiques.co.uk as our new domain name.”

Respondent:

The Response is also very brief. As described above, it contains an assertion that the “…name has been in the hands of this person for many years” and that there is a “…very good reason [for] having this name.” It is not clear from the wording of the Response whether “this person” refers to the Respondent, Dale Kisko, or someone else.

The Response does not offer any explanation why the Respondent registered this domain name, nor does it contain any supporting documentary evidence.

6. Discussion and Findings:

General

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 Rights

The only evidence in the documentation submitted as part of this dispute that the Complainant has any rights in the name Somlo Antiques Limited is a Companies House printout, which shows that the Complainant was incorporated in 1977 and that the surname of its directors and company secretary is “Somlo”. The Complainant asserts that it has been trading under that name for thirty years.

The Respondent has not put any of those assertions in issue.

Accordingly, the Expert is prepared to accept on a balance of probabilities that the Complainant has rights in the name “Somlo Antiques Limited” and “Somlo” as a family name.

In the Expert’s view, there are good grounds for holding that “Somlo Antiques Limited” is identical to the domain name in issue, given that “Limited” is a wholly generic indication and, in trade mark terms, is devoid of any distinctive character. At the very least it is similar to the domain name.

The Expert finds that the Complainant has rights in respect of a name or mark that is identical or similar to the domain name.

Abusive Registration

The 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:
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, 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 has not adduced any evidence, or made any allegation in the Complaint (beyond a bare assertion that the domain name is an abusive registration), which would support a finding of an abusive registration under any of the factors listed under paragraph 3a of the Policy, or any other examples of conduct sufficient to support such a finding. The Complainant has merely asserted that it is presently designing a new web site and “…may wish to use somloantiques.co.uk as our new domain name.” A mere desire to link one’s website to a domain name has no probative relevance when it comes to determining whether the domain name in question in the hands of a Respondent is an abusive registration.
The Complainant has therefore not established a prima facie case of an abusive registration on a balance of probabilities and the expert need not therefore consider the allegations contained in the Response as to the alleged conduct of one of the Complainant’s directors.

7. Decision:

In the light of the foregoing findings, the Expert finds that the domain name is not an abusive registration.

Cerryg Jones

Date: 31 July 2003