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Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Salvation Army -v- Jenkins GMC [2003] DRS 1341 (30 December 2003)
URL: http://www.bailii.org/uk/cases/DRS/2003/1341.html
Cite as: [2003] DRS 1341
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Nominet UK Dispute Resolution Service
DRS 01341
The Salvation Army -v- Jenkins GMC
Decision of Independent Expert
1. Parties:
Complainant: The Salvation Army
Country: GB
Respondent: Jenkins GMC
Country: GB
2. Domain Name:
the-salvation-army.co.uk ("the Domain Name")
3. Procedural Background:
The Complaint is dated 22 October 2003 and was received by Nominet on 23 October 2003. Nominet validated the Complaint and notified the Respondent of the Complaint by letter dated 30 October 2003, informing the Respondent that he had until 20 November 2003 to respond to the Complaint. The Respondent failed to respond. Mediation not being possible in those circumstances, Nominet so informed the Complainant on 1 December 2003.
The Complainant duly paid the appropriate fee for a decision of an Expert pursuant to paragraph 8 of the Nominet UK Dispute Resolution Service Procedure ("the Procedure").
On 15 December 2003, Dawn Osborne, the undersigned, ("the Expert") confirmed to Nominet that she knew of no reason why she could not properly accept the invitation to act as expert in this case and further confirmed that she knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question her independence and/or impartiality.
4. Outstanding Formal/Procedural Issues (if any):
The Respondent has failed to submit a Response to Nominet in time in accordance with paragraph 5(a) of the Procedure.
Paragraph 15(b) of the Procedure provides inter alia that "if in the absence of exceptional circumstances, a party does not comply with any time period laid down in this Policy or the Procedure, the Expert will proceed to a decision on the Complaint."
In many cases, as in this one, the principal disadvantage attached to failing to respond will be the loss of an opportunity for the Respondent to demonstrate, pursuant to paragraph 4 of the Policy, circumstances tending to show that the Domain Name is not an abusive registration. Where, as here, the Respondent has a case to answer (ie the Complainant has made out a prima facie case) and there is no answer, the Complaint must ordinarily succeed.
5. The Facts:
The Salvation Army ("the Complainant") is a well known charitable institution in the United Kingdom.
On 7 April 2000 Jenkins GMC ("the Respondent") registered the domain name the-salvation-army.co.uk ("the Domain Name"). The Domain Name is not being used to connect to an active web site.
The Complainant claims to have attempted to contact the Respondent by telephone, but not to have received any reply. Nominet UK has attempted to contact the Respondent on several occasions but, again, without obtaining any response.
6. The Parties' Contentions:
Complainant:
The Complaint asserts:
The Domain Name is identical or similar to a mark in which the Complainant has rights.
The Domain Name in the hands of the Respondent is an abusive registration.
The Complainant is an international Christian church working in 109 countries worldwide and is a registered charity. It is one of the largest and most diverse providers of social welfare in the world. It has been in existence since 1864.
The Complainant has no business with the Respondent and has not authorised it to register the Domain Name.
The Respondent did not reply to the Complainant before the Complaint was filed but has apparently since has called the Complainant to indicate that it is willing to surrender the name, although no such surrender has, in fact, been effected.
Respondent:
The Respondent has not responded
7. Discussion and Findings:
To succeed in this Complaint the Complainant has to prove to the Expert pursuant to paragraph 2 of the Policy on the balance of probabilities, first, that it has rights (as defined in paragraph 1 of the Policy) in respect of a name or mark identical or similar to the Domain Name and, secondly, that the Domain Name, in the hands of the Respondent, is an Abusive Registration (as defined in paragraph 1 of the Policy).
Although it has not alleged ownership of any registered trade marks, the Complainant is a well known charitable institution in the United Kingdom and is the owner of rights in the name THE SALVATION ARMY. The Domain Name consists of the Complainant's name with two hyphens inserted between the three words making up the Complainant's name and the generic designation .co.uk. As such, the Domain Name is virtually identical and certainly similar to the name in which the Complainant has rights.
The Complainant has not authorised the Respondent to register or use the Domain Name which does not appear to have been used. The Respondent has not filed a Response. There is no evidence been put forward by the Respondent that the Domain Name is not an abusive registration.
The Respondent has apparently indicated informally to the Complainant that it is willing to surrender the Domain Name, however it has not effected any surrender or responded to any communications sent to him by Nominet in relation to this Complaint.
The Expert agrees with the expert in the similar case The Salvation Army v Graham Williams DRS 01341 that where a respondent registers and uses a famous and highly distinctive name as a domain name without adornment and without permission, then an explanation is called for. If no explanation is forthcoming, then the Expert is entitled to draw adverse inferences and conclude as the Expert does in this case on the balance of probabilities that the purpose behind the registration was abusive. It appears likely that this domain name has been registered for profit, whether with a view to selling the domain name or using the domain name to divert internet users looking for the Complainant to an unconnected site.
The Respondent does not appear to resist the assertion that it is not entitled to retain the Domain Name, having apparently indicated to the Complainant that it is willing to surrender it. This Decision is, however, still necessary as no surrender as yet been effected.
8. Decision:
In light of the foregoing findings, namely that the Complainant has rights in respect of a name or mark which is identical or 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, the-salvation-army.co.uk, be transferred to the Complainant.
Dawn Osborne 30 December 2003