Nominet UK Dispute Resolution Service

 
Nominet UK Dispute Resolution Service DRS 02409 DRS 1764 bango.co.uk Decision of Independent Expert
1. PARTIES:

Complainant: Bango.net Limited

Country: GB

Complainant's Authorised Representative: Mr Peter Saxton

Respondent: Thomas Wilson

Country: GB

Respondent's Authorised Representative: None

2. DOMAIN NAME:

bango.co.uk ("the Domain Name")

3. PROCEDURAL BACKGROUND:
4. 1 The Complaint was received in full by Nominet on 25^th February 2005. Nominet validated the Complaint and notified the Respondent of the Complaint on 2^nd March 2005. No response has been filed to the Complaint.
5. 2 On 14^th April 2005, the Complainant paid the fee to obtain the Expert Decision pursuant to paragraph 6 of the Nominet UK Dispute Resolution Policy (version 2) ("the Policy").
6. 3 On 14^th April 2005, Nick Gardner, the undersigned ("the Expert"), confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as an 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.
7. OUTSTANDING FORMAL/PROCEDURAL ISSUES (IF ANY):

None.

8. THE FACTS:
9. 1 The Complainant is a UK company, registered number 03854965, and has been trading since 1999.
10. 2 The Complainant has a number of trade marks including UK mark 2216993A in respect of the word "Bango", CTM E174831 also for "Bango" and UK mark 2216994 for "Bango.Net". The marks are registered in classes 9, 35 and 38 in respect of, amongst other things, the provision of telecommunication services enabling access to indexed Internet sites.
11. THE PARTIES' CONTENTIONS:

Complainant

12. 1 The Complainant says that it has "created the only open, global platform that gives content providers fast and easy access to the huge opportunity presented by the emergence of the mobile internet, selling their content to anyone, anywhere in the world".
13. 2 According to the Complainant "millions of end users in more than 100 countries use the Bango Service to express themselves as individuals through their mobile phones, accessing and buying the content they need".
14. 3 The Complainant says it utilises two Domain Names for its services - www.bango.com and www.bango.net.
15. 4 According to the Complainant the Respondent operates a website at www.bango.co.uk which provides access to predominantly adult content on mobile phones and was first registered on 6 January 2004. The Company submit that: a) the Respondent Domain Name is identical or similar to a mark in which the Company has prior rights; and b) the said Domain Name, in the hands of the Respondent, is an Abusive Registration, because the Company has evidence 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 Company.

Respondent

16. 5 No Response has been filed
17. DISCUSSION AND FINDINGS
    
18. 1 As indicated above no Response has been filed. The relevant file record shows that Nominet have provided details of this Complaint to the Respondent by both e mail (to postmaster at the Domain Name), and by post (to the address provided by the Respondent when registering the Domain Name). There is no acknowledgment of any kind on file by the Respondent.
19. 2 In these circumstance the Expert takes the view that on the balance of probabilities the Respondent has been notified of the Complaint and has, for whatever reason, chosen not to respond. The Expert is allowed by Rule 15 of the Nominet Rules applicable to the Policy to proceed to determine the Complaint.

Complainant's Rights

20. 3 The Complainant clearly has rights within the meaning of the Policy. As indicated above it is the proprietor of UK registered trademarks, including "bango" which is identical to the Domain Name (ignoring for these purposes the ".co.uk" suffix).

Abusive Registration

21. 4 Paragraph 1 of the Policy defines an "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."

22. 5 The Complaint is extremely short of any meaningful detail as to why it is said that the registration of the Domain Name is Abusive. In this respect it simply states:-

"the said Domain Name, in the hands of the Respondent, is an Abusive Registration, because the Company has evidence 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 Company."

23. 6 The words that appear after "the Company has evidence that…" track verbatim the wording of paragraph 3(ii) of the Policy, which sets out one of the non exhaustive criteria which the Policy states may be evidence of an Abusive Registration.
24. 7 So far as the Expert can see no attempt is made to provide in the Complaint any details of what the "evidence" referred to by the Complainant is. In this regard the Expert takes the view that such evidence does not necessarily need to be physical evidence - a proper account from somebody with direct knowledge of the relevant facts may well suffice, particularly if no credible challenge to such an account is made. However in this Complaint no such account is provided, and save as mentioned below no physical evidence is provided.
25. 8 It is true that the Complaint does state that the web site operated by the Respondent at the Domain Name "provides access to predominantly adult content on mobile phones". No proper detail of this allegation is given and it seems to the Expert to be inconsistent with the physical evidence that is provided (see below).
26. 9 The sole item of physical evidence dealing with the question of Abusive Registration that is provided in this Complaint is an annexed document (which is not even referred to in the Complaint) which is described on the relevant index as "a printout of the website at bango.co.uk". This shows a single page screen shot with a url in the browser bar of http://www.bango.co.uk. The body of the page in the screen shot shows no graphics but simply contains the text "this domain for sale" followed by a UK telephone number.
27. 10 It may of course be highly relevant to allegations that a registration is an Abusive Registration to show that the proprietor is offering it for sale, and if so on what terms. However the Expert is quite unable to reconcile this evidence with the rather different submission made by the Complainant that the Domain Name is being used "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 Company".
28. 11 The Expert is not satisfied that on the balance of probabilities the Complainant has established by proper evidence the case that it is seeking to make. The Policy makes clear (paragraph 2(b)) that the burden of proof in this regard is on the Complainant. It is not the function of this procedure, or the role of the Expert, to simply "rubber stamp" complaints made by trade mark proprietors if the Complainant fails to discharge this burden.. In this regard it is the responsibility of those filing a Complaint to set out a prima facie case, with appropriate supporting evidence, if they wish to discharge that burden. If a Complainant is uncertain as to what is required it should seek appropriate professional guidance.
29. 12 In this context the Expert notes that the current text on the Nominet web site which provides information about how to file a Complaint clearly states:

"It is equally important to remember that each case is decided on its own merits, thus an Expert is not bound to follow a decision in a previous case. The most common reasons for an Expert to find against a party (either complainant or respondent) is a failure to supply any evidence to back up their assertions and explain in detail the situation. Whatever the facts of the situation, your case is only as good as your Complaint or Response".

and:

The Complaint. This is the most crucial part of the complaint form: you have (up to) 2,000 words to state your case in the box provided. You are allowed to attach Exhibits in addition to that. Remember that the Independent Expert will make his/her decision on your case based on what is written here (plus any exhibits and evidence attached) - you must not assume that he/she will do any research into your case and you do not have any opportunities to bring in new evidence later.

30. 13 The Expert concludes that the evidence presented in this Complaint is inadequate to support the grounds the Complainant is relying upon. In reaching this conclusion the Expert is not finding that the registration is not Abusive - rather there is simply inadequate evidence presented to the Expert to enable him to reach a view on the point. The Expert notes that paragraph 10(e) prevents a Complaint being resubmitted if it has been determined before, so it may be that this decision will preclude the Complainant from pursuing this matter further (unless it chooses to appeal - which it is entitled to do). That may be hard for the Complainant but it indicates that it is important in filing a Complaint to ensure that adequate evidence is provided.
31. DECISION
32. 1 The Complaint fails. No action is needed to implement the decision.

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Nick Gardner

26^th April 2005