1411
Nominet UK Dispute Resolution Service
DRS 01411
Sidel (UK) Ltd –v- Anker House Exports Ltd
Decision of Independent Expert
Complainant: Sidel (UK) Ltd
Country: Great Britain
Respondent: Anker House Exports Ltd
Great Britain
2 Domain Name
sidel.co.uk (“the Domain Name”)
3 Procedural Background
The Complaint was lodged with Nominet on 19 November 2003. Nominet validated the Complaint and informed the Respondent on 24 November 2003 that the Dispute Resolution Service (“DRS”) had been invoked and that the Respondent had 15 working days (until 15 December 2003) to submit a Response.
No response was received. The Complainant was informed accordingly, and on 31 December 2003 the Complainant paid Nominet the appropriate fee for a decision of an expert pursuant to paragraph 6 of the Nominet DRS Policy (“the Policy”).
On 8 January 2004 Nominet appointed Andrew Clinton (“the Expert”). On 8 January 2004 the Expert confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as expert in this case, and further confirmed that he knew 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.
On 22 January 2004 the Expert made a request, pursuant to paragraph 13 of the Procedure for the conduct of proceedings under the DRS (“the Procedure”), for the parties to provide further statements and documents. The Complainant responded to the request on 27 January 2004 but the Respondent did not respond within the timeframe laid down by Nominet or at all.
4 Outstanding Formal/Procedural Issues
The Respondent has made no response to the Complaint.
Clause 15b of the Procedure provides that if, in the absence of exceptional circumstances, a Party does not comply with any time period laid down in the Policy or the Procedure, the Expert will proceed to a Decision on the complaint.
The Expert is of the view that there are no exceptional circumstances and as the Respondent has failed to reply to the Complaint within the specified time limit the Expert can proceed to a Decision.
Clause 15c of the Procedure states that, in the absence of exceptional circumstances, if a Party does not comply with any provision in the Policy or the Procedure the Expert will draw such inferences from the Party’s non compliance as he or she considers appropriate.
5 The Facts
The Domain Name was registered on 6 March 2000 in the name of the Respondent.
6 The Parties Contentions
6.1 Complaint
The Complaint, so far as is material, is as follows:-
i That the Domain Name in dispute is identical or similar to a name or mark in which the Complainant has Rights.
ii That the Domain Name in the hands of the Respondent is an Abusive Registration. If anyone types in the domain name sidel.co.uk they are immediately diverted (with no acknowledgement) to http://www.ankerhouse.com/contents/home.html Anker House is a direct competitor, being the agent of the Italian manufacturer SIPA.
iii That the Complainant is not sure of the reasons why the Respondent has registered the Domain Name, but its actions result in blocking the Complainant’s own registration and confusing the Complainant’s customers. The Complainant is unable to think of an honest reason for the Respondent registering the Domain Name.
6.2 Response
No response was received from the Respondent.
6.3 Further Statement
The parties were requested to supply a statement and copy documents on the issue of whether the Complainant has rights in a name that is identical or similar to the Domain Name. The Complainant responded, so far as is material, as follows:-
The Complainant has rights in name and trade mark which is identical to the Domain Name. Sidel UK has been operating for 12 months, but Sidel has been operating for some 30 years. The Domain Name is identical to the name of Sidel UK www.sidel.co.uk.”
The parties were requested to supply a statement and copy documents on the issue of whether the Respondent is a direct competitor of the Complainant. The Complainant responded as follows:-
Anker House Exports is a direct competitor, being the agent of the Italian blow moulding manufacturer SIPA.
7. Discussion and Findings
7.1 Complainant’s Rights
The Complainant says it has rights in the name Sidel on the basis that Sidel UK has been operating for 12 months and Sidel has been operating for some 30 years. The Complainant refers to a trade mark but that appears to be registered to Sidel in France, rather than to Sidel UK and there is no evidence of a licence or assignment. The Respondent has not sought to challenge the Complainant’s assertion that it has rights in a mark that is identical or similar to the Domain Name and, based on the available information, the Expert finds on the balance of probabilities that the Complainant does have rights in a mark that is identical or similar to the Domain Name.
7.2 Abusive Registration
Abusive Registration is defined in paragraph 1 of the Policy to mean 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.
Non-exhaustive factors – paragraph 3 of Policy
A non-exhaustive list of factors which may be evidence of an Abusive Registration is set out in paragraph 3a of the Policy is 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 or businesses 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; or
iv. It is independently verified that the Respondent has given false contact details.
The Domain Name directs the user to a website at www.ankerhouse.com, which offers services which appear to be similar or identical to services provided by the Complainant.
The Complainant points out that the Domain Name diverts directly to a web-site operated by Anker House which it says is a direct competitor being the agent of the Italian blow moulding manufacturer SIPA. The Complainant says it is unable to think of a legitimate reason for the Respondent registering the Domain Name. Certainly, the Respondent has not put forward any explanation for its choice of the Domain Name.
The Complainant says it is confusing to its own customers but there is no evidence of actual confusion, and paragraph 3 (a)(ii) of the non-exhaustive list of factors (circumstances indicating the Respondent is using the Domain Name in a way which has confused people) is therefore not made out as, in the Expert’s view, it requires evidence of confusion.
The Expert has to consider whether the registration and use of a domain name by a competitor, without the approval of the company that has rights in the name, takes unfair advantage of the Complainant’s rights. The Expert takes into account the fact that there is no obvious legitimate reason why a competitor to Sidel would choose to register the name Sidel as part of its Domain Name. The Expert also takes into account the fact that the Respondent has failed to offer any reason. It is the Expert’s view that, on the facts and evidence of this case, it was unfair for the Respondent to appropriate the Complainant’s name as a domain name.
The Expert therefore finds that the registration and use of the Domain Name amounts to an Abusive Registration in that it has taken unfair advantage of or has been unfairly detrimental to the Complainant’s Rights.
i. There is a list of non-exhaustive factors which may be evidence that the Domain Name is not an Abusive Registration at paragraph 4a of the Policy. The Respondent has not filed a Response and there is no evidence to suggest that any of the factors in paragraph 4 are made out.
Decision
The Expert finds that on the balance of probabilities the Complainant has rights in a name which is identical or similar to the Domain Name and that the Domain Name is, in the hands of the Respondent, an Abusive Registration. The Expert directs that the Domain Name be transferred to the Complainant.
Andrew Clinton