Complainant: Equazen UK Limited
Country: GB
Respondent: Robert Morrison
Country: MT
equazen.co.uk
(referred to as "the Domain Name")
The Complaint was submitted to Nominet on 14 June 2005, and hard copies of the Complaint were received in full by Nominet on 14 June 2005. On 17 June 2005, the Complaint was validated by Nominet. On the same day, the Complaint was sent to the Respondent, by post to the address in Malta provided in the whois information and by e-mail. The Respondent was informed that it had 15 working days, that is, until 11 July 2005, in which to respond to the Complaint.
No response has been filed by the Respondent and so mediation was not possible. On 18 July 2005, the Complainant paid the fee to obtain an Expert Decision pursuant to paragraph 6 of the Nominet Dispute Resolution Service Policy ("the Policy").
On 22 July 2004, Antony Gold, the undersigned, ("the Expert") confirmed to Nominet that he knew of no reason why he could not properly accept Nominet's invitation to him to act as an Expert in this case.
No response
The Respondent failed to submit a response to Nominet within the time stipulated in paragraph 5 of the Nominet UK Dispute Resolution Service Procedure ("the Procedure"). Paragraph 15b of the Procedure states that where a party (in the absence of exceptional circumstances) does not comply with any time period laid down in the Policy or the Procedure, the Expert will decide the dispute based upon the Complaint. Paragraph 15c of the Procedure states, in summary, that if, in the absence of exceptional circumstances, a party does not comply with any provision in the Policy or the Procedure, the Expert will draw such inferences from the party's non-compliance as he or she considers appropriate. The Expert is not aware of any exceptional circumstances.
Deficiencies in the Complaint
It is possible to set out the entirety of the Complaint. Leaving aside the formal elements of the Complaint, it is as follows;
"I confirm that the Domain Name(s) in the hands of the Respondent is an Abusive Registration.
Dear Sirs My company Equazen UK Ltd (reg no 38894256) has held the trademark Equazen since we were formed in 1999. You can see from equazen.com that we are a going concern with a strong business in the health supplements industry. The person who has registered equazen.co.uk is using our tradename to drive business to other supplement companies through the site, http://www.sedoparking.com/equazen.co.uk. We regard this as a clear instance of cyber-squatting that is doing damage to our brand name. We have considerable press activity and equazen is often in the news. The holder of equazen.co.uk is clearly trying to capitalise on our activity and is damaging the goodwill invested in the name equazen. We are taking this very seriously and would urge you to take action to ensure the registration is transferred to its rightful owners,: Equazen"
No evidence is provided in support of any of the assertions save that, as with every dispute, Nominet has provided the Expert with a copy of the page to which the Domain Name resolves.
Among the information lacking is the following;
The Complainant has not provided any information or evidence relevant to the assertion that it holds a trade mark for Equazen, that it has a strong business in the health supplements industry or that it has "considerable press activity and is often in the news". Bald assertions of this type are insufficient. Complainants are expected to provide evidence in support as well.
2. The conduct of the Respondent
There is no evidence provided that the Respondent "is using our trade name to drive business to other supplement companies…" or that this is doing "damage to [the Complainant's] brand name" or that the Respondent "is damaging the goodwill invested in the name equazen".
At the very least, a Complainant should explain why it believes the Respondent has registered the Domain Name and/or what use has been made of the Domain Name by the Respondent. Second, a Complainant would be expected to explain why such registration/use constitutes an Abusive Registration under the Dispute Resolution Policy. None of this information has been provided.
It is possible for an Expert to make enquiries which might bolster a Complaint of such brevity. The Expert could, for example, conduct a number of web-based searches which might uncover more information about the Complainant's business and the business and conduct of the Respondent. That is not the function of the Expert. Under paragraph 2 b of the Policy, it is for the Complainant to establish its case on a balance of probabilities..
In what circumstances might an Expert conduct searches intended to rectify deficiencies in a Complaint? The approach of other Experts in other cases provide some assistance in this respect. In particular, the Expert in Chivas Brothers Limited v David William Plenderleith (DRS 292) considered that, since the Complaint itself was a full and properly prepared document, he was prepared to carry out online searches to verify certain information. Conversely, the Expert in HIT Entertainment Plc v Tom Loosemore (DRS 1544) concluded that the Complaint was defective, and on this basis, he was not prepared to carry out further research.
In the present case, the Complainant has not set out a coherent case either of the question of whether it has Rights in the name EQUAZEN or whether the Domain Name is an Abusive Registration in the hands of the Respondent. The Complainant has merely set out rudimentary background information regarding its activities by reference to EQUAZEN, and made a blanket assertion that the registration of the Domain Name was Abusive. The Expert's role is not to write the Complainant's case but to reach a decision on the basis of the information and submissions provided by the parties. It is inappropriate on these facts for the Expert to undertake further work on the Complainant's behalf.
In the absence of a Response, the Expert accepts as accurate (save as indicated below) the Complainant's account of the background giving rise to its Complaint. However, the paucity of the Complaint means only the following material facts have been provided:
i. The Complainant was incorporated in 1999.
ii. The Complainant trades in the health supplement industry.
iii. The Complainant states that it operates a website through equazen.com.
The Complainant states that it holds "the trademark equazen" although no evidence of this (such as a copy of the Certificate of Registration) has been provided.
iv. The Complainant also states that it frequently appears in the news/press.
v. No information about the Respondent has been provided by the Complainant. However, as with every Complaint, Nominet has provided the Expert with a copy of a screen shot of the home page to which the Domain Name resolves. As at 17 June 2005, the home page contains the statement: "For Equazen try these sponsored links" and then contains a number of links to websites which appear to sell vitamins and other health supplements.
vi. The Complainant states that the Respondent "is using [EQUAZEN] to drive business to other supplement companies through the site, which is damaging the Complainant's brand name". The Complainant goes on to state that [the Respondent] "is clearly trying to capitalise on our activity, and is damaging the goodwill invested in the name equazen".
Complainant
The Complainant makes no attempt to structure its submissions by reference to the grounds of the Policy on which it seeks to rely.
Respondent
The Respondent has not filed a response.
Requirements which must be satisfied in order for the Complaint to succeed
The Complainant must prove, on the balance of probabilities, that:-
- it has Rights in respect of a name or mark which is identical or similar to the Domain Name (paragraph 2(a)(i) of the Policy); and
- the Domain Name in the hands of the Respondent, constitutes an Abusive Registration (paragraph 2(a)(ii)).
Paragraph 2a(i) - the Complainant's Rights
The Complainant assert that its has owned the trade mark EQUAZEN since it was formed in 1999. Accordingly, although this is not expressly stated, the Complainant's position is that the Domain Name is identical to a name or mark in which the Complainant has Rights. The Expert accepts that the Domain Name is identical to, the word EQUAZEN, it being usual to ignore to ".co.uk" suffix.
The meaning of Rights under the Policy includes rights enforceable under English law. Where a Complainant has relevant registered trade marks, it is usual for it to rely on them as evidence of its Rights.
The Complainant states that it trades through a website at equazen.com. However, the Complainant has not provided any copies of pages from the website nor has it provided any other evidence to support its assertion that it trades as EQUAZEN, such as details of hits to its website or marketing material. The only information provided about the Complainant's activities is that it trades in the health supplements industry.
It is not appropriate for the Expert to make assumptions on behalf of the Complainant in the absence of evidence. There is no evidence of registered trade mark rights produced beyond the simple assertion. There is no evidence of any goodwill in EQUAZEN. The Expert has been given no information to enable him to make a finding that the Complainant has rights in the name EQUAZEN and he declines to do so.
Paragraph 2a(ii) - Abusive Registration
For the sake of completeness, the Expert deals briefly with the issue of Abusive Registration.
As indicated above, the Complaint is defective under paragraph 3 b (v) of the Procedure as it does not adequately explain the grounds on which the Complainant considers the registration is Abusive. Again, the Complainant is required to identify those parts of the Policy which are relevant to the circumstances of this Complaint. Abusive Registration is defined in paragraph 1 of the Procedure as:-
"a Domain Name which either
(i) was registered or otherwise acquired in a manner which, at the time 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 constitute evidence that the Domain Name is an Abusive Registration are set out at paragraph 3 of the Policy. Although the definition of what constitutes an Abusive Registration is not restricted to the matters outlined at paragraph 3 of the Policy, it is nonetheless for the Complainant to explain why the Domain Name in the hands of the Respondent is an Abusive Registration.
Does the Complaint establish that the Domain Name was registered or acquired in a manner which took unfair advantage of or was unfairly detrimental to the Complainant's Rights? There is no evidence, nor even any express assertion, that this is the case.
Alternatively, does the Complaint show that the Respondent has used the Domain Name in a manner which takes unfair advantage of or is unfairly detrimental to the Complainant's rights? Again, there is neither any evidence provided by the Respondent nor even an assertion that this has occurred. The only evidence before the Expert concerning the Respondent's use of the Domain Name is the screen shot of the Respondent's website provided by Nominet. This shows that the site is being used as a portal for sponsored links but not every use of a site as a portal constitutes an Abusive Registration and it is for the Complainant to explain its case in this respect, not for the Expert to make it.
The Expert does not find that the Complainant has been able, on the balance of probabilities, to satisfy the requirements of paragraph 2 of the Policy and, as a consequence, the Complainant's request for transfer of the Domain Name is refused.
Antony Gold