1927
Nominet UK Dispute Resolution Service
DRS 1927
Hull Learning Services IT –v- Richard Andrews
Decision of Independent Expert
1. Parties:
Complainant
Complainant:Hull Learning Services IT
Country: GB
Respondent
Respondent: Richard Andrews
Country: GB
2. Domain Name:
The dispute involves the domain name:
http://www.hullictlea.co.uk
(‘the domain name’).
3. Procedural Background:
The Complaint was initially lodged with Nominet on 28th July 2004, papers filed with Nominet on 29th July 2004 and validated by Nominet on 3rd August 2004. The Respondent was informed by letter on that same day. By 26th August 2004 no response had been received from the Respondent. Mediation was not pursued. The Complainant paid Nominet the required fees for a decision of an expert in accord with Paragraph 6 of the Nominet (UK) Dispute Resolution Service Policy (“the Policy”).
On 13th September 2004, the undersigned Expert, having indicated to Nominet that there was no reason why he should not handle the case, the case was referred to the Expert for a decision.
4. Outstanding Formal/Procedural Issues (if any):
I deal with the lack of a response by the Respondent below.
5. The Parties’ Contentions:
Complainant:
The Complainant’s contention is quite simple, although not couched in the terms of Nominet DRS policy. The Complainant argues that they have rights in the domain name hullictlea.com which is identical or similar to the domain hullictlea.co.uk which is registered by the Respondent. The Complainant argues that the Respondent is using this related domain name in ‘bad faith’ as a means to:
“redirect traffic and potential customers to another site which provides services in competition to the specific organisation”
The Complainant has developed his argument on the basis of a legal firm’s web site which relates to the UDRP resolution system, rather than that of the Nominet DRS Policy.
The Nominet procedure is one which is designed to be simple, efficient and available to all users of the system. It seems important therefore to accept the underlying basis of the complaint as being one of ‘Abusive Registration’ and produce a decision based upon this as the complaint rather than ‘bad faith’ as set out by the Complainant.
Respondent:
The Respondent has not entered a submission. I raise the conclusions which can be drawn from this lack of submission below.
6. Discussion and Findings:
Rights in the Domain Name
The Complainant appears to be a local government department which provides technical services to schools relating to ICT in administration and learning in the Hull region. The ‘customers’ of the Complainant also appear to be technically literate individuals. There further appears to be a subscription basis for access to the services and products via the web site. I set this out since an initial assumption may be that a domain name which is registered with “.com” might not be thought appropriate (as against a “.gov.uk” registration) and may affect the reasoning under which the decision is made with respect to ‘abusive registration’. This assumption is not made in this decision.
It has been suggested and accepted in the various decisions of Experts in the DRS that the level of rights in respect of a domain name or mark which is identical or similar to the Domain Name (DRS Policy, Paragraph 2a(i)) is a hurdle which is set at a relatively low level. It is clear to this Expert that this hurdle has been easily overcome by the Complainant. The Complainant has rights in the Domain Name:
hullictlea.com
which is similar to that of the disputed Domain Name:
hullictlea.co.uk
Abusive Registration
The Respondent’s web site is a commercial site which offers services in a similar field to that of the Complainant. The Respondent is operating under the business name, Custodian Managed Services Ltd. The user who connects to hullictlea.co.uk is directed to the site with the domain name www.custodians.co.uk. There is no indication that the web site of Custodian Managed Services has any link with the Complainant and there is no link which would take the user who was seeking the Complainant’s web site to that web site. It appears that the use of the Domain Name under dispute is a redirecting of potential customers of the Complainant to that of the Respondent. There is no evidence that the Respondent has attempted to sell, rent or otherwise transfer the Domain Name to the Complainant or to others.
The question for this Expert is: is this an abusive registration?
In the non-exhaustive list of factors set out in the DRS Policy (Paragraph 3) there are three elements which may – in the present factual situation – be relevant to the skeletal case set out by the Complainant:
· Use as a blocking registration;
· Use to unfairly disrupt the business of the competitor;
· Confusing people or businesses as to relationship with the Complainant.
The first of these factors does not seem to this Expert to be relevant. The Complainant still has the Domain Name under which he has traded and which users have accessed the web site and there is no evidence of blocking of that Domain Name.
The second of these factors is perhaps more relevant. The Respondent is collecting visitors who are seeking commercial services in the educational sector. Whether, though, this is happening at the level of ‘abusive registration’ is something I deal with below.
The third of these factors might be discounted in the face of lack of evidence provided by the Complainant. The users of the Complainant’s web site appear to be ICT professionals working in a small geographical/LEA area. If the Complainant had provided evidence of confusion, of course, this factor may have been more relevant.
This Expert is to reach his decision based on the balance of probabilities (DRS Policy, Paragraph 2b). The Respondent has not replied to the arguments made by the Complainant. Under Paragraph 15c of the DRS Procedure the Expert may draw inferences from this non-compliance:
“If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure or any request by us or the Expert, the Expert will draw such inferences from the Party's non compliance as he or she considers appropriate.”
Where the Complainant has made out a prima facie case, it seems clear that the Complaint must succeed. The Respondent has had the opportunity to challenge the case made by the Complainant and has declined. However, this does not mean that the expert must accept as fact all submissions made by the Complainant or necessarily follow all the reasoning of the Complainant.
Has the blatant use of a similar Domain Name to that of the Complainant meant that the case is prima facie? I believe not. The Respondent is clearly trying to gather custom, but it is not totally obvious that this is disrupting the business of the Complainant given the technical abilities of the Complainant’s customer base. The Complainant has provided no evidence of disruption, instead simply arguing that there is ‘bad faith’. On the other hand, the Respondent has made no reply to the Complaint and the inference of this Expert is that where such a reply is lacking, the balance of probabilities will lie with the Complainant.
The argument made and evidence provided against the Respondent is not particularly strong and, in this Expert’s view, would have been weakened further had the Respondent’s web site included a simple and obvious link to redirect users who were seeking the Complainant’s web site to that web site. However, this redirecting link does not exist, and since there is an absence of a reply by the Respondent, I find for the Complainant.
7. Decision:
The case being made by the Complainant has some substance. It is not substance which has been clearly and unambiguously made in the submission and indeed the Complainant’s reliance upon reasoning more relevant to the UDRP has further weakened that case. Nonetheless, it is a case which has been made without response from the Respondent and as has been suggested in other DRS decisions, this cannot have a positive effect on the Respondent’s case. When looking at the evidence which might demonstrate abusive registration, on the balance of probabilities it can only have the opposite effect of strengthening the case made by the Complainant.
I therefore find that there is an abusive registration of the domain names:
hullictlea.co.uk
In accordance with the Complainant’s request, this domain names should be transferred.
Philip Leith