Nominet UK Dispute Resolution Service

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URL: http://www.bailii.org/uk/cases/DRS/2003/1037.html
Cite as: [2003] DRS 1037

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Nominet UK Dispute Resolution Service

DRS NO. 01037

Decision of Independent Expert

M D Connections t/a Call Stream -v- D M Business Solutions Limited

1. Parties

Complainant: M D Connections t/a Call Stream
Country: GB

Respondent: D M Business Solutions Ltd
Country: GB

2. Domain Name

callstream.co.uk
( referred to as “the Domain Name”)

3. Procedural Background

The Complaint was submitted to Nominet on 2 June 2003, and hard copies of the Complaint were received in full by Nominet on 4 June 2003. The Complaint was sent to the Respondent by post and e-mail on 9 June 2003, with a letter informing the Respondent that he had 15 working days, that is, until 1 July 2003, in which to respond to the Complaint.
No response to the Complaint was received by Nominet. On 3 July 2003, Nominet wrote to the Complainant and the Respondent confirming that no response had been filed within the deadline. The parties were informed that, since no response had been received, mediation was not possible. On 16 July 2003, Nominet received from the Complainant the appropriate fee for a decision of an Expert pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service Policy (“the Policy”).
On 29 July 2003, Antony Gold, 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.

4. Outstanding Formal/Procedural Issues

Non-submission of response

The Respondent failed to submit a response to Nominet in the time stipulated in paragraph 5 of the Nominet UK Dispute Resolution Service Procedure (“the Procedure”).
Paragraph 15 b of the Procedure states that where a party (in the absence of exceptional circumstances) does not comply with any time period laid down in the Policy or the Procedure, the Expert will decide the dispute based upon the Complaint.
Paragraph 15 c of the Procedure states, in summary, that if, in the absence of exceptional circumstances, a party does not comply with any provision in the Policy or the Procedure, the Expert will draw such inferences from the party’s non-compliance as he or she considers appropriate.

Contact Information

There are a number of points arising from the contact information provided. First, the correspondence address for the Respondent provided by the Complainant does not match that contained within the Respondent’s whois details. Second, one of the documents submitted by the Complainant indicates that (as at May 2002) one of the Complainant’s addresses may, in fact, have been the same as the current address of the Respondent. No explanation is provided as to this. Lastly, difficulties were encountered in contacting the Respondent at the e-mail address shown on the whois details. However, on 9 June new contact information for the Respondent was provided by the Respondent’s administrative contact to Nominet. On 10 June the Respondent replied to an e-mail sent by Nominet to the new e-mail address and further communications between Nominet and the Respondent have been sent to both the old and new e-mail addresses.

In all the circumstances, the Expert is satisfied that Nominet took all necessary steps in order to obtain the correct e-mail address for the Respondent, and that electronic copies of all correspondence have been sent to the Respondent. The Expert has no reason to doubt that the Respondent has been properly notified of the Complaint in accordance with paragraph 2 of the Procedure, and was properly put on notice of both the time limit in which he should respond and his subsequent default.

Respondent’s e-mail of 10 June 2003

The only correspondence received from the Respondent concerning this Complaint is an e-mail dated 10 June 2003, sent from the Respondent to Nominet, asserting that the Complainant’s claim to the Domain Name would be disputed.

In the absence of a formal response from the Respondent, it could be material to consider whether the Policy and/or the Procedure allows the Respondent’s contentions to be considered in the context of this dispute. Pursuant to paragraph 12 of the Policy, it is for the Expert to determine the admissibility, relevance, materiality and weight to be given to the evidence. Further, paragraph 13 of the Policy, which relates to the further documents or statements which the Expert may request or be sent, is potentially of application. However, in view of the conclusions reached in relation to the applicability of paragraph 2 of the Policy, is unnecessary for this issue to be considered further.
Application of paragraph 2 of the Policy
A consideration of the applicability of paragraph 2 of the Policy to this dispute is at paragraph 7 below.

5. The Facts

The information about the basis for the Complaint is very scant. The Complainant has stated is that it believes that it is entitled to the Domain Name and that the Domain Name is registered in the name of the Respondent. The Complainant asserts that it had paid £400 plus VAT to the Respondent for the name to be transferred to it. It asserts “we have all correspondence to prove the purchase of the domain and have forwarded this previously to yourselves (“yourselves” being, it is assumed, Nominet)”. It adds “I would be most grateful if you could assist us in the matter of getting the record changed to reflect the correct legal owner so we can finally put this matter behind us”. Appended to the Complaint is a letter from the Respondent to the Complainant which appears to confirm that it had agreed to transfer title of the Domain Name and two other domain names on settlement of an invoice for £400 plus VAT. The letter indicates that once the domain names have been transferred neither the Respondent nor any company or associate would (amongst other matters) register
any further names associated with MD Connections or Call Stream.
The above account reflects the sum total of the information provided by the Complainant.
The only information supplied by the Respondent was in the form of an e-mail to Nominet dated 10th June. It reads “Just a quick note to confirm that this domain is still the property of D M Business Solutions Limited and any claim to it will be disputed. A full run down and version of events will follow after consultation with my solicitor”.

6. The Parties’ Contentions

The parties’ contentions are set out under Section 5 above. It should be noted that, not only is the factual information provided by the Complainant unhelpfully brief, but the Complainant has not attempted explain why the limited facts it has provided entitle it to a finding in its favour under the terms of the Policy.

7. Discussions and Findings

In order to succeed, the Complainant must prove, on the balance of probabilities, in relation to the Domain Name, that:-

· it has Rights in respect of a name or mark which is identical or similar to the Domain Name (paragraph 2(a)(i) of the Policy); and

· the Domain Name in the hands of the Respondent, constitutes an Abusive Registration (paragraph 2(a)(ii)).
The part of the Complaint which deals with the above points merely confirms that the Complainant believes both of the above to be the case. It reads as follows:-
“I confirm that the Domain Name(s) [sic] in dispute are identical or similar to a name or mark in which I have Rights.
I confirm that Domain Names(s) [sic] in the hands of the Respondent is an Abusive Registration.”

Accordingly, the Complainant has done no more than claim that it falls within the two limbs of paragraph 2a of the Policy without providing any argument or evidence in an attempt to demonstrate why this is the case.
Paragraph 2a(i) - the Complainant’s Rights

The Complainant has submitted no evidence in relation to paragraph 2a(i), that is that it has Rights in relation to the name Call Stream. It is possible to infer from, amongst other matters, the address details that the Complainant trades as Call Stream but no other information relevant to 2a(i) has been provided.
Paragraph 2a(ii) - Abusive Registration

Similarly, the Complainant has not established (or even attempted to establish) that the registration of the Domain Name in the hands of the Respondent is Abusive. A non-exhaustive list of factors that may constitute evidence that the Domain Name is an Abusive Registration is contained in paragraph 3 of the Policy. No evidence has been adduced by the Complainant in an attempt to show that any of these factors, or any other circumstances should lead an expert to conclude that the registration of the Domain Name is Abusive.

The only evidence submitted by the Complainant, which it evidently considers provides support for its contention that the registration is Abusive, relates to a dispute with the Respondent. The Complainant’s case seems to be that, contrary to an express agreement, the Respondent failed to transfer the Domain Name into the Complainant’s name. However, the function of the Policy and Procedure is not to provide a remedy to contractual disputes over domain names. A Complainant is only entitled to relief if it can satisfy the grounds set out under clause 2 of the Policy. The Complainant has failed to do this. The Expert reaches this finding irrespective of the fact that, according to the Respondent’s e-mail dated 10th June 2003, there would appear to be a dispute between the parties in any event.

8. Decision

The Complainant has failed to establish either that it has Rights in a name or mark which is similar or identical to the Domain Name or that the Domain Name in the hands of the Respondent is an Abusive Registration. Accordingly, the Complainant’s request for a transfer of the Domain Name is refused.

Antony Gold

Date: 5th August 2003