1344
Nominet UK Dispute Resolution Service
DRS 01344
The Salvation Army -v- Maxview Ltd.
Decision of Independent Expert
1. Parties:
Complainant: |
The Salvation Army |
Country: |
GB |
|
|
Respondent: |
Maxview Ltd. |
Country: |
GB |
2. Disputed Domain Name:
thesalvationarmy.co.uk (the “Domain Name”)
3. Procedural Background:
The Complaint in this case was lodged with Nominet UK ("Nominet") on 24 October 2003. Nominet validated the Complaint on 29 October 2003 and notified the Respondent, giving them 15 working days within which to lodge a response. As of November 19, 2003, no response was received. On 28 November 2003, the Complainant paid to Nominet the appropriate fee for a Decision by an Expert pursuant to paragraph 6 of the Nominet Dispute Resolution Service Policy (the “Policy”).
The undersigned, Andrew Murray (the “Expert”), was formally appointed on 9 December 2003. The Expert has formally confirmed to Nominet that he knows of no reason why he cannot properly accept the invitation to act as an expert in this case and further confirmed that he knows 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. Outstanding Formal/Procedural Issues (if any):
The Respondent has not submitted a Response to Nominet in time (or at all) in compliance with paragraph 5a of the Procedure for the conduct of proceedings under the Dispute Resolution Service (“the Procedure”).
The Expert has seen copy communications from Nominet to the Respondent and has no reason to doubt that the Respondent has been properly notified of the complaint in accordance with paragraph 2 of the Procedure.
Paragraph 15b 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.”
There is no evidence before the Expert to indicate the presence of exceptional circumstances; accordingly, the Expert will now proceed to a Decision on the complaint notwithstanding the absence of a Response.
The lack of a response does not entitle the Complainant to a default judgement. The Complainant must still prove its case to the required degree. The Expert will evaluate the Complainant's evidence on its own merits and will draw reasonable inferences from it in accordance with paragraph 12b of the Procedure.
Paragraph 15c of the Procedure provides that “If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure ....... , the Expert will draw such inferences from the Party's non-compliance as he or she considers appropriate.”
Generally, the absence of a Response from the Respondent does not, in the Expert’s view, entitle an expert to accept as fact all uncontradicted assertions of the Complainant, irrespective of their merit. In this case it seems to the Expert that the probable facts speak for themselves and that it is not necessary to draw any special inferences. The Expert finds that the probable facts asserted by the Complainant and set out in the next following section are indeed facts.
5. The Facts
The Complainant is named as The Salvation Army. The Complainant is a Registered Charity (Reg. No. 214779). The Complainant was first registered with the Charities Commission on 15 April 1963, but can trace its charitable status much further back. The Salvation Army’s origins are to be found in The East London Christian Mission, set up in 1864 by William and Catherine Booth. The modern Salvation Army was formed on 7 August 1878 when by Deed Poll the organisation took the name “The Salvation Army”. The status of the Salvation Army has been recognised by Parliament with four Acts of Parliament forming part of the constitutional framework of the organisation: The Salvation Army Acts 1931, 1963, 1968 & 1980.
The Nominet Whois search, which was provided to the Expert, shows that the Domain Name was registered on behalf of the Respondent on 28 January 2000, and was renewed by the Respondent on 26 February 2002. The address www.salvationarmy.co.uk appears to not be in use. Attempts to access any site at this domain fail to resolve.
It appears from the file that during the Dispute Resolution process the parties were in communication with each other in the hope of achieving an amicable solution. An e-mail from Mr. Christian Cundell, representing the Complainant, dated 30 October 2003 states that the Respondent had agreed to transfer the domain name to the Complainant. This assertion cannot be confirmed as there is no independent record of the Respondent’s intentions. Whatever the position was at that date though, such a transfer failed to proceed, leading to the current action.
6. The Parties' Contentions
Complainant
The Complainant submits that the Domain Name in dispute is identical or similar to a name or mark in which it has rights and that the Domain Name in the hands of the Respondent is an Abusive Registration.
The Complainant states that it has prior rights in the name “The Salvation Army”, which has been the Complainant’s registered name since 7 August 1878.
The Complainant contends that the Respondent’s registration is of an abusive nature as the Domain Name is made by joining the words “The Salvation Army”. The Complainant has no business with the Respondent and prior to the Complaint being made had not been in contact with the Respondent with reference to the Domain Name. It is claimed that the Respondent’s registration is a blocking registration.
Respondent’s Response
No response was received from the Respondent.
7. Discussion and Findings:
General
According to paragraph 2 of the Policy, in order to succeed in this complaint, the Complainant has to prove to the Expert that, on the balance of probabilities:
i. the Complainant has Rights (as defined in paragraph 1 of the Policy) in respect of name or mark which is identical or similar to the disputed domain name; and
ii. the disputed domain name is an Abusive Registration (as defined in paragraph 1 of the Policy).
These matters must be proven by the Complainant, notwithstanding the failure by the Respondent to respond. The effect of the Respondent’s default is rather that, under paragraph 15(c) of the Procedure (there being no exceptional circumstances in this case) the Expert is required to draw such inferences from the Respondent’s non-compliance as he considers appropriate.
Complainant's Rights
The Complainant is a prominent charitable organisation. The Salvation Army in the UK and Ireland is part of an international Christian church working in 109 countries worldwide. They have been a registered Charity since 1963 and the organisation has undoubtedly acquired a high degree of goodwill in its name from its inception in 1878. All of the information before the Expert in respect of the Complainant supports this view. The Expert considers it reasonable to infer that the Complainant has goodwill in the name.
The Domain Name ‘thesalvationarmy.co.uk’ comprises the words “The Salvation Army” joined together and the suffix ‘.co.uk’. In assessing whether or not a name or mark is identical or similar to a domain name, it is appropriate to discount the domain suffix, which is of no relevant significance and wholly generic. The remainder ‘thesalvationarmy’ is clearly a replication of the Complainant’s registered name. The Expert, therefore, finds that the Complainant has rights in respect of a name or mark, which is sufficiently similar to the Domain Name.
Consequently, the Expert finds that, for purposes of the Policy, the Complainant has rights in respect of a name or mark, which is identical or similar to the Domain Name.
Abusive Registration
Paragraph 1 of the Policy defines “Abusive Registration” as:-
“a Domain Name which either:
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
has been used in a manner, which took unfair advantage of or was unfairly detrimental to the Complainant's Rights.”
Under paragraph 3a of the Policy is listed a non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration. The Complainant has indicated that it wishes to rely on the paragraph 3a(i)(B) which requires:
“Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name as a blocking registration against a name or mark in which the Complainant has Rights.”
There is strong and compelling evidence in support of this claim. The Respondent has not used the Domain Name for the development of a site or presence on the Internet despite possessing the Domain Name for almost four years. Although mere failure to develop or utilise a domain name is not in of itself conclusive evidence of a blocking registration, there is further evidence to support a claim of a blocking registration in this case.
Firstly, there is the nature of the Domain Name. The term “The Salvation Army” cannot be described as generic or descriptive. It is a specific name which has been attached to the Complainant for over one hundred years. It is hard to imagine that the Respondent was not aware of the Claimant prior to their registration of the Domain Name. Secondly, the Respondent despite appearing to agree to transfer the Domain Name to the Claimant on 30 October 2003 has to date failed to do so. Although there is no independent evidence of the Respondent’s intention so to do I believe that this is symptomatic of the Respondent’s failure to respond generally and therefore under Paragraph 15c of the Procedure the Expert may draw such inferences as they deem appropriate. In this case I believe the Respondent’s initial intention to transfer the Domain Name and their subsequent failure to respond are independent evidence that they are not interested in owning the domain for any legitimate reason. The Expert therefore finds that the registration is a blocking registration under paragraph 3a(i)(B).
Having found the Complainant to have made out a prima facia case under the Policy the burden under paragraph 4 now shifts to the Respondent to demonstrate their use is not an Abusive Registration. The Expert having found the Respondent has a case to answer, the Respondent must make that answer. Here the Respondent has failed to answer and therefore cannot rebut the presumption of Abusive Registration.
Accordingly, the Expert finds that the Domain Name is an Abusive Registration as defined by paragraph 1 of the Policy on the basis that it is being used in a manner which takes unfair advantage of the Complainant's rights.
8. Decision:
In light of the foregoing findings, namely that the Complainant has rights in respect of a name 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, thesalvationarmy.co.uk, be transferred to the Complainant.
Andrew Murray
Date: 12 December 2003