1312
Nominet UK Dispute Resolution Service
DRS 1312
Electronic Payments & Commerce Limited -v- evantage
Decision of Independent Expert
1. Parties:
Complainant: Electronic Payments & Commerce Limited
Country: GB
Respondent: evantage
Country: Germany
2. Domain Name:
epaycom.co.uk ("the Domain Name")
3. Procedural Background:
The signed Complaint was received by Nominet on 16 October 2003. Nominet validated the Complaint and sent a copy to the Respondent on 17 October 2003.
No Response was lodged by the Respondent.
On 25 November 2003 the Complainant paid Nominet the required fee for a decision of an Expert pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service Policy ("the Policy").
Nominet invited the undersigned, Jason Rawkins ("the Expert"), to provide a decision on this case and, following confirmation to Nominet that the Expert knew of no reason why he could not properly accept the invitation to act in this case and 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, Nominet duly appointed the undersigned as the Expert with effect from 2 December 2003.
4. The Facts:
The Complainant is the company Electronic Payments & Commerce Limited, which is also known under the short-hand of "EPayCom".
On 2 July 2001 the Respondent registered the Domain Name.
5. The Parties' Contentions:
Complainant:
In summary, the Complainant's submissions are as follows:
1. The Complainant has rights in a name and trade mark which is identical or similar to the Domain Name:
(1) The Complainant has been operating for ten years. The diminutive "EPayCom" has developed as the short form commonly used by clients and staff in referring to the company. This has been the case since around 1997.
(2) The Domain Name is identical or similar to the name or mark "EPayCom".
2. The Domain Name is an Abusive Registration in the hands of the Respondent:
(1) In 2001, Mr Bill Postgate, who, together with his wife, owns the Complainant company, was employed as a sub-contractor by the Respondent. During this time he met Mr Jens Munk who was a director of the Respondent. Mr Munk was considering his future and suggested joining up with Mr Postgate. They agreed to develop the existing "EPayCom" company (i.e. the Complainant's business), with Mr Munk taking responsibility for marketing and business development.
(2) As part of the above, Mr Munk took on the task of implementing the Complainant's website. He also undertook to meet the costs of this.
(3) At around the end of 2002, the Complainant decided that it wished to take direct control of its website (at www.epaycom.co.uk). As part of their efforts to achieve this, they contacted Mr Munk who undertook to get the issue resolved. This continued until the middle of 2003 with little to no progress. At that point Mr Munk vanished and has not responded to any subsequent emails, letters or telephone calls.
(4) Being concerned regarding the control of its "EPayCom" brand and, as part of this, the Domain Name and the related website, the Complainant made investigations and discovered that the Respondent was the registrant of the Domain Name.
(5) The Complainant has therefore filed its complaint with Nominet in order to ensure that ownership of the Domain Name is transferred to it.
Respondent:
The Respondent has not filed a Response.
6. Discussion and Findings:
No Response
The Respondent has not filed any Response. In spite of this, it is still for the Complainant to prove its case on the balance of probabilities.
General
Paragraph 2 of the Policy provides that, to be successful, the Complainant must prove on the balance of probabilities that:
i it has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
ii 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 Complainant appears to have made use of the short form trading name "EPayCom" since around 1997. It has not included as part of its complaint any evidence to support this. Nevertheless, given that the Complainant company changed its name at Companies House to Electronic Payments & Commerce Limited in 1997, and given that the short-hand "EPayCom" is a credible short form for a company of that name, I am prepared to accept on the balance of probabilities that the diminutive "EPayCom" has been used in relation to the Complainant's business since around 1997. In the light of this, I therefore find that the Complainant has Rights in the name or mark "EPayCom".
Disregarding the ".co.uk" suffix (as one must do), the Domain Name is therefore identical to the name or mark in which the Complainant has Rights.
The Complainant has therefore proved what is required under the first part of paragraph 2 of the Policy.
Abusive Registration
Paragraph 1 of the Policy defines an "Abusive Registration" 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."
Firstly I note (from the register entry for the Domain Name provided to me by Nominet as part of the papers on which I need to base this decision) that Jens Munk is listed as the administrative contact for the Domain Name, followed by the Respondent's name and address. I note this because it confirms the link between Mr Munk and the Respondent to which the Complainant makes reference.
Based on the Complainant's submissions, I find that Mr Munk, whilst still working for the Respondent, registered the Domain Name on behalf of the Complainant. This conclusion is supported by the fact that the website at www.epaycom.co.uk (a print-out of which Nominet has supplied to me as part of the papers for this decision), makes clear reference to the Complainant and deals exclusively with the Complainant's business. If the Domain Name had not been registered on behalf of the Complainant, there would of course be no reason for it to do so.
Given the finding that the Domain Name was registered on behalf of the Complainant, it follows that the Complainant should have full control over the use of the Domain Name, including the related website. The only way in which this can be the case, especially since Mr Munk has not responded to repeated attempts by the Complainant to contact him, is for the Complainant to be the proprietor of the Domain Name. The fact that the Complainant does not have such control in my view leads to the clear conclusion that the Domain Name has been used in a manner which was, and is, unfairly detrimental to the Complainant's Rights. This, under the second limb of paragraph 1 of the Policy, means that the Domain Name is an Abusive Registration.
Even if Mr Munk and the Respondent had never had any connection with the Complainant and had not registered the Domain Name on the Complainant's behalf, the conclusion would remain the same in any case. As noted, the website connected with the Domain Name deals exclusively with the business of the Complainant. The Complainant has a valid entitlement to control the content of a website which deals with nothing other than its business.
7. Decision:
Having found 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, epaycom.co.uk, be transferred to the Complainant.
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Jason Rawkins 15 December 2003