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Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> QSoft Consulting Ltd -v- Richard [2004] DRS 1736 (19 June 2004)
URL: http://www.bailii.org/uk/cases/DRS/2004/1736.html
Cite as: [2004] DRS 1736
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Nominet UK Dispute Resolution Service
DRS 1736
QSoft Consulting Limited –v- Declan Richard
Decision of Independent Expert
1. Parties:
Complainant: QSoft Consulting Limited
Country: GB
Respondent: Declan Richard
Country: GB
2. Domain Name:
Mygaydar.co.uk
3. Procedural Background:
The Complaint was lodged with Nominet on 30 April 2004. Nominet validated the Complaint and notified the Respondent of the Complaint on 6 May 2004 and informed the Respondent that it had 15 days within which to lodge a Response.
No response was received from the Respondent. The e-mails to the respondent at both postmaster@mygaydar.co.uk and my_gaydar@hotmail.com were returned as failed deliveries and the letter to the respondent was returned by the post office as “addressee unknown”. The words “not at this address” were handwritten on the envelope.
Accordingly the dispute was referred for a decision by an Independent Expert following payment by the Complainant of the required fee for a decision of an Expert pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service Policy (“the Policy”).
David Flint, the undersigned, (“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.
4. Outstanding Formal/Procedural Issues (if any):
None
5. The Facts:
Complainant:
The Domain Name in issue is www.mygaydar.co.uk The Complainant runs, inter alia a website at mygaydar.com which is also accessible via gaydar.co.uk and mygaydar.net.
The Complainant is the proprietor of community trademark 002127264 “GAYDAR” in classes 35,38 and 42. The covers dating services on the Internet.
The complainant is also well known in respect of mygaydar.com and operates the gaydar radio station.
The domain in issue “mygaydar.co.uk” presently points to a holding page for 1&1 Webhosting.
6. The Parties’ Contentions:
Complainant:
The substance of the Complaint is short and reads as follows: -
The Domain Name in dispute is identical or similar to a name or mark in which the Complainant has Rights.
The Complainant confirms that the Domain Name in the hands of the Respondent is an Abusive Registration.
7. Discussion and Findings:
General
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).
Complainant’s Rights
In this case the first limb of that task is straightforward. The Complainant is the proprietor of rights in the name Gaydar. The Domain name comprises the name Gaydar combined with the prefix “my” 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.
Gaydar is not a common word and is used almost exclusively in relation to the gay community, a community which has been targeted by the Complainant. A search on google discloses the main hits for “gaydar” as being the complainant. The name “mygaydar” discloses a large number of hits for the complainant’s site.
The Complainant has trademark rights in “gaydar” and unregistered rights in “maygaydar”.
Accordingly, the Expert finds that the Complainant has rights in respect of a name or mark, which is identical to the Domain Name.
Abusive Registration
This leaves the second limb. Is the Domain Name, in the hands of the Respondent, an Abusive Registration? 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.”
A non-exhaustive list of factors, which may be evidence that the Domain Name is an Abusive Registration is set out in paragraph 3a of the Policy. There being no suggestion that the Respondent has engaged in a pattern of making Abusive Registrations the only potentially relevant ‘factors’ in paragraph 3 are to be found in subparagraphs I, ii, and iv which read 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.”
iv “it is independently verified that the Respondent has given false contact details to us”,
The Expert interprets “as” in sub-paragraph i. B as being synonymous with “for the purpose of”. Were it to be interpreted otherwise all domain name registrations would inevitably constitute “blocking registrations” for any later arrival wishing to use the name in question.
The Respondent has offered no explanation for its selection of the name “mygaydar”, nor indeed any response to the allegations of the Complainant such as could justify its registration of such a Domain Name.
The expert considers that given the specialist nature of the use of “gaydar”, it is improbable that the Respondent would have chosen the name whilst unaware of the complainant’s rights.
The Respondent is not contactable on either of the e-mail addresses or the postal address given on his registration of the name. The Expert therefore finds that the test of paragraph 3 iv is met.
Accordingly, the Expert finds that the Domain Name is an Abusive Registration within the definition of that term in paragraph 1 of the Policy on the basis that it was registered in a manner which, at the time when the registration took place, took 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 or mark which is identical 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, mygaydar.co.uk, be transferred to the Complainant.
David Flint
Date: 19 June 2004