Complainant: Ashsale Ltd. t/a Marks Sattin
Country: GB
Respondent: Balata.com LLC
Country: IL
marksattin.co.uk ("the Domain Name")
14/03/2005 Dispute entered into system
14/03/2005 Hardcopies received in full on: 11/03/2005
16/03/2005 Complaint validated
16/03/2005 Complaint documents generated and sent to Respondent
13/04/2005 No Response received
13/04/2005 No response to complaint documents generated
13/04/2005 Complainant notified
22/04/2005 Fees received from Complainant on: 19/04/2005
26/04/2005 Mr. Iain M Tolmie selected as expert
"I am independent of each of the parties. To the best of my knowledge and belief, there are no facts or circumstances, past or present, or that could arise in the foreseeable future, that need be disclosed as they might be of a such a nature as to call in to question my independence in the eyes of one or both of the parties."
"If in the absence of exceptional circumstances, a Party does not comply with any time period laid down in this Policy or the Procedure, the Expert will proceed to a Decision on the complaint."
"If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure…, the Expert will draw such inferences from the Party's non-compliance as he or she considers appropriate."
Complainant
6.1.1. I confirm that Domain Name(s) in dispute are identical or similar to a name or mark in which I have Rights.
6.1.2. I confirm that Domain Name(s) in the hands of the Respondent is an Abusive Registration.
6.1.3. The Respondent's domain name "marksattin.co.uk" is the subject of this dispute as it is a misspelling of, and confusingly similar to the Claimant's domain name in which the Claimant asserts it has rights.
6.1.4. The website was set up to intentionally mislead the public into believing that it is in fact the website of the Complainant. It was set up to offer financial recruitment consultancy service and contained links to the Complainant's competitor Joslin Rowe Financial Recruitment.
6.1.5. In addition, on the homepage of the Website there was a link for making offers to buy the domain name.
6.1.6. The Complainant wrote to the Respondent on 25 January 2005 demanding that it should cease and desist from operating the site; the letter was sent by airmail and via the Website.
6.1.7. On 26 January 2005 the Respondent changed the Website into a site providing information about loans rather than a recruitment site and removing the link to make an offer for the domain
6.1.8. However, the Complainant considers there is a possibility that the Respondent may change the site back to a recruitment site in future and also believes that due to the similarity in the domain names, it is losing hits to its own site.
6.1.9. The Complainant believes that the Respondent's domain should be considered as an abusive registration in that it was registered in a manner which, at the time when the registration took place:-
• the Respondent had no legitimate interest in registering the domain name other than to use it as an instrument of fraud; and
• the registration is unfair and detrimental to the Complainant as it is likely to divert customers intending to do business with the Complainant to other companies who knowingly or unknowingly have been linked to the website associated to the Respondent's domain name.
6.1.10. The Complainant is seeking to have Applicant's domain name transferred to the Complainant.
Respondent
Burden of Proof
i that he has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
ii that the Domain Name, in the hands of the Respondent, is an Abusive Registration as defined in Paragraph 1 of the Policy.
Rights includes, but is not limited to, rights enforceable under English law. However, a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant's business;
Complainant's Rights
Abusive Registration
Abusive Registration means 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;
7.9.1. is confusingly similar to its own name
7.9.2. was set up to intentionally mislead the public into believing that it is in fact the website of the Complainant [in that]… [i]t was set up to offer [a] financial recruitment consultancy service and contained links to the Complainant's competitor Joslin Rowe Financial Recruitment
7.9.3. was registered in a manner which, at the time when the registration took place:-
• the Respondent had no legitimate interest in registering the domain name other than to use it as an instrument of fraud; and
• the registration is unfair and detrimental to the Complainant as it is likely to divert customers intending to do business with the Complainant to other companies who knowingly or unknowingly have been linked to the website associated to the Respondent's domain name.
7.17.1. It is not clear to me why a foreign company might have a reason for registering the Domain Name, and it has not taken the opportunity provided under the Procedure to explain its reasoning to me.
7.17.2. Without an explanation from the Respondent (which could have made reference to grounds in paragraph 4 of the Policy - How the Respondent may demonstrate in its response that the Domain Name is not an Abusive Registration) I can only draw inferences from the behaviour of the Respondent (see 4.5 above).
7.17.3. Under different circumstances, for example an individual named Mark Sattin having registered the Domain Name, there may have been some difficulty in deciding whether the Domain Name was abusive since there may have been a reasonable alternative use.
7.17.4. However in this case there is no explanation offered and so the only inference I can draw is that the registration of the Domain Name was a deliberate attempt to benefit from the Complainant's web traffic.
______________________ Date: 3rd May 2005
Iain M. Tolmie ("the Expert")