Nominet UK Dispute Resolution Service

You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> IPC Media Ltd -v- Wightman [2003] DRS 810 (14th March 2003)
URL: http://www.bailii.org/uk/cases/DRS/2003/810.html
Cite as: [2003] DRS 810

[New search] [Help]

DRS0000810
NOMINET – UK DISPUTE RESOLUTION SERVICE

BETWEEN:
IPC MEDIA LIMITED
Complainant

-and-

MARK WIGHTMAN
Respondent
_______________________________________
DECISION OF INDEPENDENT EXPERT
_______________________________________

Appointment
1. I was appointed by a letter dated the 25th February 2003 to decide, under the DRS Procedure, a complaint of Abusive Registration. I am required to give my decision by the 17th March 2003.

Terminology
2. In this Decision:
· “Nominet” means Nominet-UK
· “the DRS Procedure” means Nominet’s current dispute resolution procedure
· “the Policy” means Nominet’s current dispute resolution policy
· “the Domain Name” means the domain name “webuser.co.uk”

Materials
3. I have been provided with the following materials:
(1) Dispute History
(2) Complaint
(3) Standard correspondence between Nominet UK and the parties
(4) Non-standard correspondence between Nominet and the parties
(5) Companies House print out for IPC Media Limited
(6) Register entry for webuser.co.uk
(7) Nominet WHOIS query result for webuser.co.uk
(8) Printout of website at www.webuser.co.uk
(9) Copy of Nominet UK’s Policy and Procedure.

The Complaint
4. In the Complaint, which is signed on behalf of the Complainant by a Mr Wynn-Ruffhead, it is asserted that the Domain Name in the hands of the Respondent is an “Abusive Registration”.

5. The terms of the Complaint, which is dated the 17th January 2003, so far as material to this Decision, are as follows:

“I confirm that Domain Name(s) in dispute are identical or similar to a name or mark in which I have Rights.

I confirm that Domain Name(s) in the hands of the Respondent is an Abusive Registration.

I confirm that IPC Media is the applicant for UK trade mark, application number 2255669, for WEBUSER. We assert that the registrant of domain name webuser.co.uk has made an abusive registration on the basis that false contact details have been supplied. Our reasons for this assertion are that we have made consistent efforts to contact the registrant, Mark Wightman, on numerous occasions and have been unable to get any response.”

Response
6. No Response has been provided by or on behalf of the Respondent.

Jurisdiction
7. Under paragraph 2a of the Policy a Respondent is required to submit to proceedings if a Complainant asserts to Nominet in accordance with the DRS Procedure that

“i. The Complainant 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”.

8. Under paragraph 2b of the Policy a Complainant is required to prove both these elements on the balance of probabilities.

Rights
9. Paragraph 1 of the Policy defines “Rights” as including “rights enforceable under English law”. This definition is subject to a qualification which is not material.

10. I have no reason to doubt the Complainant’s assertion that it has applied to register WEBUSER as a trade mark. By virtue of the Trade Marks Act 1994 registration of a trade mark renders the mark “personal property” (see Section 22) and confers a variety of rights upon the registered owner. Section 27(1) of that Act provides:

“The provisions of sections 22 to 26 (which relate to registered trade mark as an object of property) apply, with the necessary modification in relation to an application for the registration of a trade mark as in relation to a registered trade mark”

11. Accordingly, accepting as I do that the Complainant has applied to register the name as a trade mark, it follows that the Complainant “has Rights in respect of a name which is identical or similar to the Domain Name”.

Abusive Registration
12. Paragraph 1 of the Policy defines “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”.

13. The Policy provides:

  “3.2 Evidence of Abusive Registration
   a A non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration is as follows:
    ……
   iv. it is independently verified that the Respondent has given false contact details to us.”

It is to this provision of the Policy that the Complainant refers as evidence that the Registration is Abusive.

14. It is not clear whether the verification required under paragraph 3.2 a iv of the Policy is to be independent of the Complainant or independent of Nominet. However, in the circumstances of the present case, for the reasons given below, it is not necessary to resolve this question.

15. The WHOIS query result is in the following terms:

  “Domain Name:
   webuser.co.uk
  Registrant:
   mark wightman
  Registrant’s Agent:
   No agent listed. This registration is DETAGGED.
   For details regarding the DETAGGED status please
   refer to: http://www.nominet.org.uk/ref/detagged.html
  Relevant Dates:
   Registered on:  19-Oct-1999
   Last updated:  25-Oct-2002
  No name servers listed”.

16. The Register entry for the Domain Name, as exhibited in a Report obtained on the 22nd January 2003 so far as material, is as follows:

“Domain Name: webuser.co.uk
Registrant:  mark wightman
Registered No.
Tag Holder:  DETAGGED
Original Tag:  FREENETNAME
Created:  hostmaster@freenetname.net991019
Last Changed:  hostmaster@freenetname.net011025

Registrant
Type: IND
Country: GB

Admin Contact
Name:  Freename Hostmaster
Address: 113-123 Upper Richmond Road
Address: London
Address: SW15 2TL
Telephone: ++44-20-8957-1000
Fax:  ++44-20-8957-1100
Email:  hostmaster@freenetname.net

Billing Contact
Name:  Freenetname Accounts Dept.
Address: 113-123 Upper Richmond Road
Address: London
Address: SW15 2TL
Telephone: ++44-20-8957-1000
Fax:  ++44-20-8957-1100
Email:  hostmaster@freenetname.net

Tech Contact
Name:  Freenetname Hostmaster
Address: 113-123 Upper Richmond Road
Address: London
Address: SW15 2TL
Telephone: ++44-20-8957-1000
Fax:  ++44-20-8957-1100
Email:  hostmaster@freenetname.net

Billing
First: th
Recurring th”

17. The standard correspondence between Nominet and the parties shows that:

(1) correspondence addressed to Mr. Wightman at 4 Albert Road, Shanklin, IOW PO37 27LY went unanswered;

(2) e-mails sent by Nominet to postmaster@webuser.co.uk produced the response that that address had a permanent fatal error.

18. However, on the 18th February 2003 Nominet received the following e-mail:

  “From: btinternet
  Sent: 18 February 2003 00:11
  To: drs@nominet.org.uk
  Subject: Fw: renewal

  Dear Sir
  After following your Detagged domain FAQ on nominet.org.uk I am concerned.
  Please could you send me the renewal fee amount so I can pay and also re-allocate my agent in respect to:-
  webuser.co.uk
  Unfortunately after 3 years I am afraid I have not tracked this domain name
  my contact details are:-
  IT Manager
  Intouch PLC
  Mark Wightman
  4 albert road
  shanklin
  isle of wight
  po37 7ly
  07904517961
  I am the registrant
  Thankyou
  How do I restore my DETAGGED domain name?….”

19. Nominet replied:

  “Dear Mr. Wightman
  Thank you for your e-mail. As the Domain Name is currently subject to a DRS …..we are unable to re-tag the Domain without the consent of the other party see paragraph 12a of the Policy
   http://www.nominet.org.uk/DisputeResolution/DrsPolicy/) unless the other party gives permission for the change to take place.
  Please confirm if you would like us to forward your request to IPC Media Ltd.”

20. The requested confirmation was given and the request was forwarded by e-mail to the Complainant. The Complainant’s response if any is not before me.

21. On the 3rd March 2003, at my instigation, Nominet forwarded to the Complainant a request for further information accompanied by a direction that the information requested be provided by 4.00pm on the 7th March 2003. The request for further information was in the following terms:-

“The Complainant is requested to provide the following information:-

1. The date when its application for the UK Trade Mark for WEBUSER was made.

  2. In relation to the assertion that the Complainant has made consistent efforts to contact the registrant on numerous occasions and has been unable to get any response –
   (i) By what medium attempts were made to contact the registrant e.g. telephone/fax/letter/e-mail;
   (ii) In relation to each such attempt, the date when the attempt was made. Please provide copies of any such attempt which was made in writing i.e. by letter, fax, or e-mail.”

22. The response from Mr Wynn-Ruffhead, received a little late, is that:-
  “1. The Trade Mark “Web User” was applied for on 13/12/2000
  2. (i) e-mail
   (ii) I did not keep copies of the emails. We registered a number of other (similar) names in September 2000, and at that time began to try to make contact with Mr Wightman at that time, and continued to do so over several months.”

23. There is no reason to doubt the genuineness or authenticity of the e-mail which Mr. Wightman sent to Nominet on the 18th February 2003. In that e-mail Mr. Wightman gave as his address the address which appears on the Register. There is no reason to infer that that is a false address. Nor is there any reason to suppose that any other details given to Nominet, including the details for administration, billing, and technical contacts were false, though it would appear that they are no longer correct. The mere fact that someone chooses not to respond to communications does not by itself give rise to any inference that a false address has been given.

24. Accordingly, there is no evidence, independent or otherwise, to verify that the Respondent has given false contact details to Nominet.

Decision
25. For the reasons given above, I reject the Complaint that the Domain Name, in the hands of the Respondent, is an Abusive Registration.

David Blunt QC

14th March 2003