Nominet UK Dispute Resolution Service

 
Nominet UK Dispute Resolution Service
DRS 02570
Chris Smith Teaching d/b/a CST -v- Open Future
Decision of Independent Expert
1. Parties:

Complainant:	Chris Smith Teaching d/b/a CST
Country:	UK
Respondent:	Open Future
Country:	UK

2. Disputed Domain Name:

(the "Domain Name")

3. Procedural Background:

The Complaint in this case was lodged with Nominet UK ("Nominet") on April 20 2005, with hard copies received the following day. Nominet validated the Complaint on April 26, 2005. On the Complaint, the Respondent was listed as Open Future and the name of Simon Huggins was provided as a contact. Nominet notified the Complaint to the attention of Mr. Simon Huggins by email, as well as to the following two addresses. The first address matches that supplied by the Complainant in the Complaint, while the second address matches the WHOIS look-up record for the Domain Name:

Open Future Open Future

Little Gable Sign Lingual Limited

Simon Huggins submitted a non-standard response (see explanation below) on May 16, 2005. Complainant submitted a non-standard reply on May 22, 2005, which was, in turn, notified to Simon Huggins and by email at the second address listed above.

At this point, the DRS mediation step was initiated and the dispute proceedings were suspended. However, on June 21, 2005, the Nominet administrator sent the following message to the parties:

"Having had a chance to review this file properly, I can now see that Mr Huggins and/or Sign Lingual Ltd or their liquidator are not the correct respondent for this dispute. The registrant of the domain name is Open Future, a web/IT company employed by Sign Lingual Ltd. Mr Huggins does not represent Open Future and Open Future have not responded to the complaint.

The unfortunate result is that Mr Huggin's response must now be treated as a non-standard submission, as explained in DRS procedure 13.b. This is therefore a no-response case and mediation cannot go ahead.

Mr Smith should note that the respondent in the case is Open future. In order to win he must show that Open future's registration of the domain name is an abusive registration as explained in the DRS policy. The DRS cannot decide whether any contract between Mr Smith and 'Adam Evans' is valid. The DRS can only decide whether any such contract makes the domain name an abusive registration, and even then only if by chance Adam Evans is also owner/principal/officer of Open Future. An independent expert, if appointed, may or may not decide that the registration is abusive for other reasons – the experts are independent of Nominet and we cannot judge how they will look on Mr Smith's complaint."

The message above indicates that "Open Future" is the registrant of the domain name – this is confirmed by the WHOIS look-up record provided to the Expert by Nominet. The WHOIS record, however, also (i) lists the following address for the registrant (matching the second address listed above), which refers to Sign lingual Limited, and (ii) indicates that Sign Lingual Limited is the administrative contact:

Sign Lingual Limited

Nominet confirmed that, despite confusion concerning who was the proper Respondent – and who was entitled to speak for the Respondent – Open Future had nevertheless been properly served with the Complaint. On June 24, 2005, Nominet notified that no response had been received from Open Future, and that the case would be forwarded to an expert upon payment of fees.

On July 19, 2005, the undersigned, Christopher Gibson ("the Expert"), formally 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.

4. Outstanding Formal/Procedural Issues (if any)

Paragraph 5a of the Procedure for the conduct of proceedings under the Dispute Resolution Service (the "Procedure") requires the Respondent to submit a response to Nominet. In this case no response has been received directly from the Domain Name registrant, Open Future, even though it was properly notified of the Complaint.

A "non-standard" response, however, was received from Mr Simon Huggins, who claims that (i) Open Future merely acted as agent for Sign Lingual Ltd, a company as to which Mr Huggins claims he is co-director (the other co-director being Adam Evans), and (ii) Sign Lingual Ltd is the administrator of the Domain Name, a claim that is independently confirmed by the WHOIS record supplied by Nominet.

The Expert must therefore consider whether or not to treat the submission by Mr Huggins as being a properly authorised response on behalf of the Respondent, Open Future. In the view of the Expert, there is sufficient evidence to conclude that the response submitted by Mr Huggins should be treated as that of the Respondent. First, both the Complainant and Mr Huggins are in accord that the Domain Name was actually owned by Sign Lingual Ltd. Second, the address for the Domain Name registrant in the WHOIS record is given as that of Sign Lingual Ltd. Third, Sign Lingual Ltd is listed as the administrative contact for the Domain Name. Fourth and finally, Open Future is apparently a web design/IT company, a point which is logically consistent with the information set forth above and explains why Sign Lingual Ltd was listed in the Domain Name registration record for both the address and administrative contact information.

Complainant claims that at some point in February 2005 Mr Huggins "removed control [of the Domain Name] from Sign Lingual Ltd to Open Future". Such a transfer, however, is not indicated in the Domain Name's registration record.

The Expert therefore concludes that the non-standard submission of Mr Huggins should be treated as the authorized response on behalf of the Respondent Open Future.

5. The Domain Name

A Nominet WHOIS search shows that on October 3, 2001, the Respondent Open Future registered the Domain Name signlingual.co.uk. Throughout the relevant period in this case, when the Domain Name is entered into an Internet browser, the following web site appears:



6. The Parties' Contentions

Complainant

The Complainant alleges that the Domain Name in dispute is "identical or similar to a name or mark in which I have Rights." In particular, the Complainant claims that on March 12, 2005 he bought rights to the Domain Name from Adam Evans, one of two directors of Sign Lingual Ltd (Mr Simon Huggins being the other director). Complainant claims that he was "shocked to find that Mr Huggins has been recently using this [Domain Name] and removed control from Sign Lingual Ltd to Open Future, during Feb 2005 without permission." In support of his claim, the Complainant explains that Sign Lingual had stopped trading and he provides what purports to be a receipt for purchase of various equipment and assets of Sign Lingual, including one domain name, for the amount of "£6,914,00.00" (sic). He further states that "Mr Evans will confirm that the domain name was sold as part of a package I bought from Sign Lingual Ltd."

In a reply to the response submitted by Mr Huggins, the Complainant has made a number of contentions, several of which are relevant and listed below:

"Mr Evans (Co-Director of SL) tells me he informed Mr Huggins of the asset sale. The details of their dealings are not my concern or the concern of this case."

"The claim of illegality [i.e., that the sale of assets of Sign Lingual Ltd was illegal] is not relevant for this case. But Mr Evans has informed me of the circumstances leading up to SL cessation of trade, and I am satisfied he acted both in the interest of the company and legally following actions taken during a negotiations break down in which Mr Huggins had originally agreed to sell his interest in SL to Mr Evans."

"The company SL has received monies from CST for the sale so I dispute ownership."

""Mr Evans tells me that Mr Huggins has given administration of the company while it goes into and through liquidation to him, therefore Mr Evans acceptance of my ownership should prevail. He will inform the liquidator that monies did change hands (as documented) and therefore CST should have ownership as claimed in this case. Also Mr Huggins freely admits SL is to be liquidated, all activities on this domain [name] should be frozen until the outcome of my claim is known."

The Complainant seeks the transfer of the Domain Name.

Respondent

Mr Huggins in his response contends that the Domain Name is the property of Sign Lingual Ltd, that this company is currently entering liquidation, and therefore, that disposal of the Domain Name should await the liquidator's decision.

Mr Higgins further contends that he is a co-director of Sign Lingual (along with Mr Adam Evans) and that (i) he had not received any information about the sale of the Domain Name and was not aware of the alleged sale of assets until he received the Complaint in this case, and (ii) the assets of Sign Lingual (including the Domain Name) were sold illegally because the company's Memorandum and Articles state that both directors have to be in agreement to sell assets of the company.

Mr Huggins asserts that the Complainant and Adam Evans are "friends" and Chris Smith is also an employee of a new company of Adam Evans currently trading in the same line of business as Sign Lingual, http://www.deafessential.co.uk.

Finally, Mr Huggins states that Open Future was acting as agent for Sign Lingual Ltd with respect to the Domain Name and other Internet services.

7. Discussion and Findings:

General

According to paragraph 2 of the Policy, in order to succeed in this Complaint, the Complainant has to prove to the Expert that, on the balance of probabilities:


i. the Complainant has Rights (as defined in paragraph 1 of the Policy) in respect of name or mark which is identical or similar to the disputed Domain Name; and

ii. the disputed Domain Name constitutes an Abusive Registration (as defined in paragraph 1 of the Policy).

Complainant's Rights

There are certain facts on which the parties in this dispute agree: that the Domain Name is or was owned by Sign Lingual Ltd; that Sign Lingual Ltd is no longer trading and is now being, or about to be, liquidated and both parties expect a liquidator to become involved; and that Adam Evans and Simon Huggins are/were co-directors of Sign Lingual Ltd.

Beyond these facts, there is a core dispute over ownership of the Domain Name. The Complainant asserts that Sign Lingual Ltd "has received monies from CST for the sale [of the Domain Name] so I dispute ownership." While Mr Huggins does not specifically deny that a payment was made by the Complainant to Adam Evans – who was purportedly acting on behalf of Sign Lingual Ltd – Mr Huggins does contend that (i) he was not aware of and did not agree to this sale, and (ii) the sale was "illegal" because the company's Memorandum and Articles state that both directors have to be in agreement to sell assets of the company.

The Expert observes that no documentary information or other evidence was submitted concerning Sign Lingual's liquidation or to support the statement that Adam Evans was "given administration of the company while it goes into and through liquidation." Further, no copy of the company's Memorandum and Articles was submitted in support of Mr Huggin's claim that the sale was illegal.

Complainant has submitted what purports to be a receipt for purchase of various equipment and assets of Sign Lingual (including one domain name), which appears on Sign Lingual stationary, for the amount of "£6,914,00.00" (sic). Even this document, however, with its error in the amount listed, might be questioned.

The Complainant asserted that he was "satisfied [Adam Evans] acted both in the interest of the company and legally following actions taken during a negotiations break down in which Mr Huggins had originally agreed to sell his interest in SL to Mr Evans." However, in making this contention, the Complainant also acknowledges that there was an apparent breakdown in negotiations between the two co-directors of Sign Lingual Ltd – Messrs Evans and Huggins. However, there is no clear explanation concerning these negotiations or other dealings between the co-directors.

Indeed, the Expert observes that there is a general insufficiency in the information, explanations and documentary support submitted by the parties in this case.

All of the above leads the Expert to the following findings:

The Expert is in no position to evaluate a dispute (if there is one) between the co-directors of Sign Lingual Ltd, and furthermore has no jurisdiction to do so.

The Complainant's Rights, if any, in the Domain Name depend completely on the validity of the alleged asset purchase agreement between himself and Adam Evans. The Complainant has asserted no other basis for his claim of Rights in a name or mark that is identical or similar to the Domain Name.

The Expert is in no position to evaluate the legal validity of the alleged asset purchase agreement (including the Domain Name) between Chris Smith and Adam Evans. This point was also made, as noted above, by the Nominet administrator in his email of June 21, 2005 to the parties: "The DRS cannot decide whether any contract between Mr Smith and 'Adam Evans' is valid."

Sign Lingual Ltd is no longer trading and is now being, or about to be, liquidated and both parties expect a liquidator to become involved. The Domain Name is or was an asset of Sign Lingual Ltd and might (or might not) be subject to any liquidation decision or agreement.

Consequently, the Expert finds that, for purposes of the Policy, the Complainant who has the burden of proof in this case, has failed to prove, on the balance of probabilities, that he has Rights in respect of the name or mark which is identical or similar to the Domain Name. There is simply not enough information and evidence supplied by the Complainant, in view of the contested ownership of the Domain Name, to carry the day.

The Expert would advise that this matter be brought to the attention of the liquidator to be evaluated.

Abusive Registration

Given the Expert's decision above, the Expert does not reach this ground.

8. Decision

The Expert finds that the Complainant has failed to establish, on the balance of probabilities, Rights in respect of a name or mark which is identical or similar to the Domain Name. The Expert therefore refuses the Complainant's request that the disputed Domain Name, signlingual.co.uk, be transferred to the Complainant.

Christopher Gibson

1 August 2005