1399
Nominet UK Dispute Resolution Service
DRS NO. 01399
LOANS.CO.UK LIMITED -v- (1) ABBEYWAY CONTRACTS LIMITED
AND (2)FLEXI LOANS AND MORTGAGES LIMITED
Decision of Independent Expert
1. Parties
Complainant: Loans.co.uk Limited
Country: GB
Respondent: Abbeyway Contracts Limited
Country: GB
2. Domain Name
loan.co.uk
(referred to as “the Domain Name”)
3. Procedural Background
The Complaint was submitted to Nominet on 12 November 2003, and hard copies of the Complaint were received in full by Nominet on the same day. On 17 November 2003, the Complaint was validated by Nominet and it was sent to the Respondent by post and e-mail on the same day, with a letter informing the Respondent that it had 15 working days, that is, until 9 December 2003, in which to respond to the Complaint. On 17 November, for reasons set out below, a copy of the Complaint was sent to Flexi Loans and Mortgages Limited. On 9 December 2003, the deadline in which the response had to be filed was extended until 23 December 2003. It was subsequently extended until 24 December 2003.
On 24 December 2003, the Respondent filed its Response. On 29 December 2003 the Response was forwarded to the Complainant. On 12 January 2004, a Reply was filed by the Complainant.
Mediation, it is assumed, having been unsuccessful, on 28 January 2004, the Complainant paid the fee to obtain an Expert Decision pursuant to paragraph 6 of the Nominet Dispute Resolution Service Policy (“the Policy”).
On 2 February 2004, 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
It is first necessary to clarify the identity of the correct Respondent to the Complaint.
The Complaint cites two Respondents, namely (1) Abbeyway Contracts Limited (“Abbeyway”), being the registrant of the Domain Name and (2) Flexi Loans and Mortgages Limited (“Flexi”), as the company which trades from the Domain Name.
As noted above, on 17 November 2003, Nominet forwarded a copy of the Complaint to Flexi, explaining that it did so because Flexi was using a website at the Domain Name but that it was not entitled to respond to the complaint unless it received notification from the registrant, Abbeyway, authorising it to do so.
No notification to this effect was received by Nominet from Abbeyway. Subsequently, the Response was filed on behalf of Abbeyway. As the registrant of the Domain Name, it is the proper Respondent to the proceedings. For the purpose of this decision, Abbeyway will be referred to as “the Respondent” and Flexi Loans and Mortgages Limited will be referred to as “Flexi”.
5. The Facts
The following are accepted facts which, save as indicated, would not appear to be in issue between the parties:-
5.1 The Complainant is a limited company based in the UK which provides financial lending services to individuals. Its principal website is at www.loans.co.uk. On 16 October 2000, the Complainant filed a UK trade mark for a device and word mark for LOANS.CO.UK which was registered on 11 May 2001.
5.2 The Complainant asserts that since November 2000 it has traded under the name LOANS.CO.UK. Since this date, it has provided unsecured loans to individuals through its website, loans.co.uk. The Complainant asserts that in the first 6 months of trading, it spent over £1,700,000 on marketing and advertising and that its annual marketing budget is in the region of £10,000,000 to £11,000,000. It also claims that the revenue generated by the company for the year ending 31 March 2002 was £14,000,000. The Complainant has provided its company’s accounts to support these claims. The Complainant has also provided evidence to show that it sponsors Wycombe Wanderers Football Club. It has also provided reports of the traffic which it receives to its website at loans.co.uk. For the month September 2003, it had over 1,500,000 hits to its website.
5.3 A Nominet whois search shows that the Respondent registered the Domain Name on 2 December 1996. However, it appears to be accepted by the parties that the Domain Name was originally registered by Offshore Consulting Group and the Respondent acquired the Domain Name from this company at some stage in 2001/2002. The Respondent asserts that it is in the business of trading in domain names.
5.4 At some stage subsequently, the Respondent entered into an agreement with Flexi for it to use the name. The terms of the agreement between the Respondent and Flexi are uncertain (see below). It is, however, agreed between the parties that Flexi is using the Domain Name and that it is doing so for the purpose of providing financial services, including the provision of loans, to individuals. Other than through its website, it would seem that Flexi trades as “Flexi Loans and Mortgages Limited”.
6. The Parties’ Contentions
Complainant
The Complainant’s contentions may be summarised as follows:
6.1 the Domain Name is identical or similar to a name or mark in which it has Rights.
6.2 The Complainant asserts that the Domain Name is confusingly similar to the Complainant’s name LOANS.CO.UK in which it has built up goodwill and has acquired a trade mark registration.
6.3 The registration of the Domain Name by the Respondent is an Abusive Registration:
6.4 The Complainant asserts that Flexi commissioned the Respondent to register the Domain Name for Flexi to use for the purpose of unfairly disrupting the Complainant’s business due to the likelihood of confusion which thereby arose between the Domain Name and the Complainant’s trade mark and brand name.
6.5 The Complainant contends that at the time Flexi commissioned the Respondent to register the Domain Name, Flexi was aware of the existence of the Complainant’s brand.
6.6 The Complainant says that the primary purpose of Flexi using the Domain Name is to attract internet traffic away from the Complainant’s website and to divert it to the site at the Domain Name. In this regard, the Complainant states that the Domain Name is confusingly similar to its trade mark and brand name. In support of this argument the Complainant asserts that the Domain Name does not reflect the name that Flexi’s business is commonly known by; that is, “Flexi Loans and Mortgages Limited”.
6.7 The Complainant asserts that the Domain Name is confusingly similar to the Complainant’s trade mark and brand name such that the use of the Domain Name by Flexi is unfairly disrupting the business of the Complainant. The Complainant asserts that internet users visiting the site at loan.co.uk will believe that it is, in some way, connected with the Complainant. In this regard, the Complainant seeks to rely on an example of confusion which relates to a loan application which was posted to the Complainant by a Mr Ashtari. The loan application of Mr Ashtari included (a) a copy of an application coupon (which was a tear-off slip from a mailing of the Complainant) and (b) a loan application form which Mr Ashtari had downloaded from the website at loan.co.uk.
6.8 The Complainant also asserts that the use of the Domain Name by Flexi has damaged the Complainant’s goodwill in the name LOANS.CO.UK and that its continued use by Flexi will increasingly damage its goodwill.
The Respondent
The Respondent’s contentions in the Complainant may be summarised as follows:
6.9 The Complainant has not demonstrated that it has the necessary rights in a name which is identical or similar to the Domain Name.
6.10 The Respondent refers to the Complainant’s trade mark registration which consists of a device which incorporates the word LOANS followed by ‘.co.uk’ with the dots of a different colouring to the lettering coupled with a distinctive colouring and accompanied by a dog device. The Respondent asserts that LOANS.CO.UK is a generic and descriptive term which includes a generic second level domain name which would not, of itself, be capable of trade mark protection. The Respondent also contends that, for the purpose of this dispute, the .co.uk suffix should be discounted for the purpose of comparing the Domain Name to the Complainant’s name.
6.11 The Respondent asserts that by choosing to incorporate the word LOANS into its trade mark and company name, the Complainant does not acquire any rights to this word and cannot prevent third parties from using the name as part of an otherwise legitimate business.
6.12 The Respondent refers to the definition of “Rights” in the Policy and Nominet’s Procedure for the conduct of Proceedings under the Dispute Resolution Service (“the Procedure”) which states that “a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant’s business”. The Respondent states that the word LOANS or LOAN is wholly descriptive of the Complainant’s business and refers to the Oxford English Dictionary definition of the word ‘loan’ which is stated as meaning “property lent, especially money lent at interest for a period of time”.
6.13 The Respondent also refers to a letter dated 28 July 2003 from the Chief Executive Officer of the Complainant to the Respondent in which it is stated that the Complainant “has an extremely generic and industry recognised Domain Name and one that has an immense amount of goodwill”.
6.14 The registration of the Domain Name was not an Abusive Registration
6.15 The Respondent denies that it registered the Domain Name to unfairly disrupt the business of the Complainant. In particular, the Respondent does not accept that it was aware of the Complainant’s brand at the time it registered the Domain Name or that it registered the Domain Name in order to connect itself to the Complainant.
6.16 In support of its assertions, the Respondent states that any top-level domain which is based on the word LOAN will direct a browser to a number of websites for online financial institutions. The Respondent cites a number of such sites including (by way of example) www.loansuk.co.uk and www.loanz.co.uk.
6.17 The Respondent also asserts that it was not aware of the Complainant’s brand at the time it acquired the name and that it was aware only that the name was descriptive of a commercial service. It says that the Domain Name was valuable as it is descriptive of a commercial service offered by a large number of online providers. Accordingly, it says that the Domain Name has an intrinsic value independent of the Complainant’s activities and it was for this reason that the Respondent registered the Domain Name.
6.18 The Respondent contends that it is inappropriate to draw the inference that the Domain Name was registered with the intention of disrupting the business of the Complainant purely because of the registration alone.
6.19 The Respondent also does not accept that the primary purpose of its registration of the Domain Name was to take advantage of the confusing similarity with the Complainant’s trade mark and brand name. In relation to the Complainant’s reliance on Mr Ashtari as an example of confusion, the Respondent states that, at best, this was an isolated incident and that the Complainant has not provided any survey evidence or other instances of actual confusion to support its contentions. The Respondent also asserts that Mr Ashtari, a recent arrival to the UK from Iran, was confused about electronic forms and online services generally. The Respondent also refers to a number of anomalies within Mr Ashtari’s application for the loan, which, the Respondent asserts, demonstrates that Mr Ashtari’s application form is not reliable evidence to show that either the Respondent or Flexi are using the Domain Name in a way that is causing confusion.
6.20 The Respondent submits that the statistics in relation to traffic to the Complainant’s website provided by the Complainant suggest that the launch of Flexi’s website has not impacted on traffic to the Complainant’s website.
6.21 The Respondent also refers to a disclaimer on its website which states that the site is not connected to any other site which also uses the word LOAN.
6.22 The Respondent asserts that it has made fair and legitimate use of the Domain Name and that it and Flexi have invested substantial sums of money developing the site to which the Domain Name resolves.
The Complainant’s Reply
The Complainant’s points in its Reply may be summarised as follows:
6.23 As the Respondent has admitted that it acquired the Domain Name because it knew that it would be valuable to online lenders, the Complainant asserts that this demonstrates that the Respondent registered the Domain Name primarily for the purpose of selling or transferring it to the Complainant or a competitor of the Complainant for valuable consideration, in excess of its out-of-pocket costs of registration.
6.24 The Complainant also refutes the Respondent’s assertion that the word LOANS.CO.UK is too generic to be capable of protection as a trade mark. In this regard, the Complainant contends that its trade mark has helped to build up significant goodwill in its brand. Further, the Complainant asserts that as it has a registered trade mark, it has rights in the name LOANS.CO.UK.
6.25 In relation to the Respondent’s assertion that it is usual for the .co.uk suffix to be discounted in any comparison, the Complainant asserts that this should not be the case when the .co.uk suffix forms part of the trade mark registration.
6.26 In response to the Respondent’s argument that a complainant cannot rely on a wholly descriptive term, the Complainant accepts that it is for the Complainant to discharge the burden to show that it has rights in the name. In this regard, the Complainant contends that it has acquired sufficient goodwill in its name since it commenced trading in November 2000 so that the name LOANS.CO.UK is now distinctive of the Complainant.
6.27 In relation to the evidence of confusion, the Complainant asserts that it is only necessary to show a likelihood of confusion (as opposed to actual confusion).
6.28 In respect of the disclaimer on the Respondent’s website, the Complainant asserts that the disclaimer is ineffective as by the time internet users have read the disclaimer, confusion may have already occurred.
6.29 In the event that Abbeyway is the sole Respondent, the Complainant asserts that the Respondent’s statement that it selected the Domain Name as it described the services it provided is untrue. However, in the event that the assertion refers to Flexi, the Complainant asserts that the website to which the Domain Name resolves is not branded with Flexi’s company name.
7. Discussion and Findings
7.1 In order to succeed, the Complainant must prove, on the balance of probabilities, that:-
7.1.1 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
7.1.2 the Domain Name in the hands of the Respondent, constitutes an Abusive Registration (paragraph 2(a)(ii)).
7.2 Paragraph 2b of the Policy provides that “the Complainant is required to prove to the Expert that both elements are present on a balance of probabilities”.
The Complainant’s Rights
7.3 First, it is necessary for the Complainant to show that it has Rights in a name which is identical or similar to the Domain Name. The Policy defines “Rights” as including, but not limited to, “rights enforceable under English law. However, a Complainant will be unable to rely on rights in a name or a term which is wholly descriptive of the Complainant’s business”.
7.4 Pursuant to the Policy, it will be necessary to consider (1) whether the Complainant has rights in the name, LOANS.CO.UK, which are enforceable under English law and (2) whether the name is wholly descriptive of the Complainant's business.
Does the Complainant have Rights in a name which is similar or identical to the Domain Name? Does the Complainant have rights in the name which are enforceable under English law?
7.5 The Complainant seeks to assert that it has acquired Rights in the name LOANS.CO.UK and that the Domain Name is similar to its name.
7.6 Prior to considering whether the Complainant has Rights in the name, it is necessary to clarify the name which is to be considered. In this regard, the Respondent asserts that, in considering the Complaint, the .co.uk suffix should be disregarded and that it is appropriate to assess whether the Complainant has Rights in the word LOANS. In its Reply, the Complainant suggests that, as its registered trade mark relates to the name LOANS.CO.UK, the .co.uk should not be disregarded. Whilst it is acknowledged that it is common practice in domain name disputes to disregard the .co.uk suffix, as the Complainant appears only to trade online through its website, loans.co.uk, and as its trade mark relates to the name, LOANS.CO.UK, it is appropriate in this case to consider whether the Complainant has Rights in the name, LOANS.CO.UK.
7.7 In support of its assertion that it has Rights in the name LOANS.CO.UK, the Complainant also places reliance on the facts and matters set out at section 5 above.
7.8 So far as its registered trade mark, number 2249172 is concerned, the registration is for a device and word mark for the name LOANS.CO.UK. The Complainant does not have a word only mark for the name. Its word and device mark is more than just stylisation of the words, LOANS.CO.UK; a distinctive element is the depiction of a dog. On reviewing the pages of the Complainant’s website, the dog features prominently. Similarly, on the sponsorship hoardings for Wycombe Wanderers Football Club, the name LOANS.CO.UK appears in conjunction with the dog. A registered trade mark for a word and device mark rather than the word alone may only be of limited value in a domain name dispute which necessarily relates only to words in which Rights might have been acquired.
7.9 Notwithstanding the above, it is likely that the Complainant has built up some goodwill in the name, LOANS.CO.UK and that this would be sufficient for it to claim rights in the name. Accordingly, I find that the Complainant does have rights in respect of the name LOANS.CO.UK.
Is the name, LOANS.CO.UK, wholly descriptive?
7.10 Under the Policy, even if a Complainant has established Rights in a name, it cannot rely on rights in a name or term which is wholly descriptive of its business. The name or term on which the Complainant seeks to rely is LOANS.CO.UK. Is this wholly descriptive of the Complainant’s business?
7.11 The Complainant provides loans to individuals. That is the only service it provides. Accordingly, on the face of it, the word “LOANS” is wholly descriptive of the services which the Complainant provides.
7.12 The name on which the Complainant seeks to rely also includes the suffix “co.uk”. The .uk or .co.uk element of a name is frequently disregarded when applying the test under the Policy to determine whether a name is identical or similar to a Domain Name. However, where the trading style of a Complainant incorporates the .co.uk element as part of the brand name, it is appropriate to look at the name in its entirety. Thus it is material to consider whether the fact that the Complainant’s trading style is LOANS.CO.UK, as opposed to simply LOANS, means that the name is no longer wholly descriptive of the Complainant’s services.
7.13 In approaching this issue, it is material to look at the Complainant’s services. Those services comprise the provision of loans which are offered online through a site at loans.co.uk. The words “.co.uk” added to LOANS tell the potential customer that there is a website at loans.co.uk through which loans are available. The use of the .co.uk suffix is not inevitably descriptive. Conceivably, (albeit improbably), for example, a person could use a name “[word].co.uk” to describe services or a product which was not offered through a site situated at [word] .co.uk. However, in the context in which the .co.uk suffix is used by the Complainant, namely to identify the site through which its services are promoted, its use is wholly descriptive. It is plainly open to registrants to transact business through domain names which are wholly descriptive. But the provisions of the Policy operate to prevent such a registrant from complaining about the registration of domain names which are identical or similar to the domain name.
7.14 For the reasons set out above, I consider that the name LOANS.CO.UK is wholly descriptive of the services which the Complainant provides under the name. Accordingly, the Complainant, even though the Complainant has rights in the name and may (although the Expert expresses no opinion on this) be able to rely on them in other contexts (for example, in passing off), it is unable to rely on them for the purpose of a Complaint under the DRS.
7.15 Abusive Registration
Whilst the Complainant has failed to establish that it has Rights (as defined in the Policy) in the name, for the sake of completeness, this decision will consider whether the registration of the Domain Name is an Abusive Registration.
Abusive Registration is defined in paragraph 1 of the Policy as:-
“a Domain Name which either
(i) was registered or otherwise acquired in a manner which, at the time 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.”
7.16 A non-exhaustive list of factors which may constitute evidence that the Domain Name is an Abusive Registration are set out at paragraph 3 of the Policy. It is for the Complainant to seek to explain why the Domain Name in the hands of the Respondent should be regarded as an Abusive Registration.
Paragraph 3 of the Policy provides (insofar as relevant):
“A non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration as follows:
i. Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name:
A) primarily for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly associated with acquiring or using the Domain Name;
B) as a blocking registration against a name or mark in which the Complainant has Rights; or
C) primarily for the purpose of unfairly disrupting the business of the Complainant;
ii. Circumstances indicating that the Respondent is using the Domain Name in a way which has confused people into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant;
iii. In combination with other circumstances indicating that the Domain Name in dispute is an Abusive Registration, the Complainant can demonstrate that the Respondent is engaged in a pattern of making Abusive Registrations;
Paragraph 3a.i.A: Sale to complainant or competitor
7.17 Did the Complainant register the Domain Name primarily for the purpose of selling the Domain Name to the Complainant or a competitor for valuable consideration in excess of its out of pocket costs of registration? The Respondent states that it “is in the business of trading in domain names and recognised that any domain name incorporating the word “loan” would be extremely valuable because of the generic nature of the word and the prevalence of on-line lenders..”. The Respondent asserts that during the course of acquiring the name, the Respondent looked for potential purchasers of the name and Flexi indicated its interest in the Domain Name. The Respondent states that it “paid a considerable amount for the Domain Name” and asserts in the Response that that Flexi “has now agreed to purchase the Domain Name from the Respondent and has been operating its website under an oral licence while the agreement and transfer are formalised”.
7.18 It is clear that the Respondent is engaged in the business of selling domain names and that it acquired the Domain Name to make a profit from it by renting and/or selling it. As the Domain Name is for a generic word, the Domain Name may be of particular interest to companies which provide financial lending services as it is wholly descriptive of those services. Domain names which are descriptive of a company’s services are commercially attractive. When searching for sites, internet users may search using key word which are descriptive of the goods and services which they are looking for. By having a descriptive domain name, users may be attracted to the site. For example, diy.com is the domain name which B&Q uses for its website. However, a consequence in having a domain name which is descriptive of the services which a company provides is that it will be harder to protect and to prevent others using the same or similar names.
7.19 The Respondent has admitted that it registered the Domain Name to sell to online financial service providers. Accordingly, the Expert finds that the Respondent registered the Domain Name with the intention of selling it or renting it to the Complainant or a competitor of the Complainant. However, paragraph 4C.ii of the Policy provides that it will not be an Abusive Registration if the Domain Name is generic or descriptive and the Respondent is making fair use of it. For the reasons more fully set out in this decision, the Expert considers that the Domain Name is descriptive and that the use by the Respondent in renting the Domain Name to an online provider of lending services is fair use of the Domain Name and does not amount to an Abusive Registration.
Paragraph 3a.i.B: Blocking Registration against a name in which the Complainant has Rights
7.20 As mentioned above, the Complainant does not have Rights (as defined in the policy) in the Domain Name which it is entitled to rely on for the purpose of making a Complaint under the Policy.
Paragraph 3a.i.C: Disruption
7.21 In the Complaint, the Complainant asserts that the primary purpose of the Respondent’s (or Flexi’s) registration of the Domain Name was to unfairly disrupt the business of the Complainant. Paragraph 3a.i.C of the Policy suggests that the Respondent must have an intention to disrupt the Complainant’s business. In this regard, the Respondent would need to be aware of the Complainant’s activities at the time it registered the Domain Name.
7.22 The Complaint asserts that “Flexi was aware of the existence of the Complainant’s brand and trade mark at the time it commissioned Abbeyway to register the Domain Name”. The Respondent denies that, at the time of registration, it was aware of the Complainant which would indicate that it had not registered the Domain Name to disrupt the Complainant’s business. It does not comment on Flexi’s knowledge of the Complainant. In the Reply, the Complainant expands on its assertion that the Respondent was aware of it and the Complainant states that both the Respondent and Flexi were aware of the Complainant’s business as representatives from each company knew the Chief Executive of the Complainant. As this allegation was not raised in the Complaint, the Respondent has not had the opportunity to respond to it. Accordingly, it is unclear whether, in fact, the Respondent was aware of the Complainant’s business. However, as the Respondent was aware of the commercial value of the Domain Name, it is likely that the Respondent was aware that businesses used domain names which were similar to the Domain Name to provide online lending services.
7.23 It is admitted that the Respondent acquired the Domain Name for its commercial value. In the Appeal decision in Consorzio del Prosciutto di Parma v Vital Domain Limited (DRS 00359) it is stated that “each of the examples of Abusive Registration in paragraph 3a.i appear to require a degree of mental intention. However the definition of Abusive Registration is wide enough to permit an objective assessment of the position irrespective of what the Registrant’s intention or belief in fact was”. Accordingly, it is appropriate to objectively consider whether the Respondent’s registration of the Domain Name has unfairly disrupted the business of the Complainant. In this regard, irrespective of whether the Respondent was aware of the Complainant at the time it registered the Domain Name, the Expert does not consider that the Domain Name was registered by the Respondent to specifically unfairly disrupt the Complainant’s business. On the balance of probabilities, it was registered by the Respondent because it recognised its commercial value as a generic domain name and wished to rent and/or sell it to a financial services provider. As it is a descriptive Domain Name, this amounts to fair use of the name (see below).
Paragraph 3a.ii: use in a way which has caused confusion
7.24 The Respondent has entered into an agreement with Flexi to use the Domain Name. The Complainant asserts that the use of the Domain Name by Flexi has caused confusion. It asserts that Flexi is not known by the Domain Name. However, the Expert does not consider that this, in itself, is sufficient to establish an Abusive Registration. Companies may use descriptive domain names as their domain names notwithstanding that they are not known by the name; see the example of B&Q, cited above (albeit that the site established at diy.com is plainly that of B&Q).
7.25 The Respondent also relies on an actual example of a person, Mr Ashtari, being confused by the Domain Name. Mr Ashtari appears, on the balance of probabilities, to have been confused by Flexi’s use of the Domain Name. However, a disadvantage of a descriptive domain name, is that similar domain names may be registered and used by competitors who provide the same or similar services. In these circumstances, confusion may occur. The confusion caused requires the Complainant to be able to establish that the Respondent’s use of the name has confused people or businesses to consider that the Domain Name is somehow connected with the Complainant. The facts of the single example provided are insufficiently clear to be able to determine whether Mr Ashtari’s confusion falls within this criteria. He may have been more generally confused by the plethora of similarly named sites such as loan.uk.com and loans.uk.com. These sites also provide facilities to obtain loans.
Other evidence of abuse
7.26 The Respondent asserts that the Domain Name is generic and that Flexi is making fair use of the Domain Name. Paragraph 4a.ii of the Policy provides that it will not be an Abusive Registration if the Domain Name is generic or descriptive and the Respondent is making fair use of it.
7.27 For the reasons more fully set out above, the Expert considers that the Domain Name is generic and descriptive and that the use which the Respondent has made of the name (renting and/or selling it to Flexi) is fair.
8. Decision
The Expert does not find that the Complainant has been able to satisfy the requirements of paragraph 2 of the Policy on a balance of probabilities and, as a consequence, the Complainant’s request for transfer of the Domain Name is refused.
Antony Gold
Date: 18 February 2004