Complainant: Ms Stacey Schuham
Country: US
Respondent: djlsolutions.co.uk
Country: GB
6pm.co.uk;
("the Domain Name")
The complaint was first received electronically by Nominet on 25 April, 2008 with hardcopies subsequently being received in full on 29 April, 2008. Nominet validated the complaint and informed the Respondent, by letter and email on 29 April, 2008, using the purported contact details from the WHOIS records, and noting that the Dispute Resolution Service had been invoked and that the Respondent had 15 days (until 22 May, 2008) to submit a Response. No Response or reply of any sort was received from the nominal Respondent. Nominet informed the Complainant accordingly on 27 May, 2008, noting that Informal Mediation was not an option in this situation, and inviting the Complainant to pay the fee to obtain an Expert Decision pursuant to Paragraph 7 of the Nominet UK Dispute Resolution Service Policy ("the Policy"). The fee was duly received by Nominet on 2 June, 2008.
On 3 June, 2008, Nominet invited the undersigned, Keith Gymer ("the Expert"), to provide a decision on this case and, following confirmation to Nominet that the Expert knew of no reason why he could not properly accept the invitation to act in this case and 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, Nominet duly appointed the undersigned as Expert with effect from 9 June, 2008.
For the reasons explained below, the Expert considers that, owing to apparently inadequate efforts by, and insufficient information from, the Complainant, it is likely that the nominal Registrant/Respondent in this case, "djlsolutions.co.uk", and/or the person stated to have operated this entity, have not been notified of, or made aware of, this Complaint.
The Complainant, Ms Stacey Schuham, although apparently styling herself as a "Brand Evangelist" and doing business under the name Brandplay, has pursued this Complaint as an individual, claiming rights by purchase, without disclosure of any related commercial interests or intellectual property rights.
Ms Schuham appears to have acquired administrative control over the Domain Name in late 2004, but evidently failed to follow the appropriate Nominet procedures to change the name of the Registrant at that time.
According to Nominet's Register entry for the Domain Name, 6pm.co.uk was first registered on 21 November, 2003.
The WHOIS record presently shows the registrant nominally identified as "djlsolutions.co.uk", supposedly a "Non-UK Corporation", with a purported contact address now at:
6060 Greenwood Plaza Blvd
Greenwood Village
80111
US
The administrative contact is identified as a Mr Slotter with an email address @ebags.com.
"eBags" is apparently an on-line retailer of bags and accessories. The above contact address is actually eBags US address. Its interest in the Domain Name is not explained in the Complaint.
The above address, and the administrative contact details for the Domain Name were evidently changed after the control of the Domain Name was passed to Ms Schuham. Clearly, "djlsolutions.co.uk" is not a trading style of eBags and the Complaint is not directed at eBags. However, procedurally, the Complaint has effectively been notified to eBags rather than the nominal Registrant/Respondent, because no contact details for the latter have been provided.
Complainant:
The Complainant has asserted that:
1. The Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Names (Policy Paragraph 2a(i)); and
2. The Domain Names, in the hands of the Respondent, are Abusive Registrations (Policy Paragraph 2a(ii)).
In support of these assertions, the Complaint makes the following submissions:
"I purchased this name from an individual, David Leake, in October 2004. We conducted the sale and transfer through an escrow service at escrow.com. Mr. Leake was informed by his current registrar, 1and1.co.uk, that the domain name could be transfered to a new owner directly through their system. We conducted the domain name transfer to a new account at 1and1.co.uk and I released the funds once I had access to change the administrative information. However, I have since learned that this was incorrect information and that an ownership transfer cannot be conducted this way; thus, the ownership transfer was never completed. In the interim, Mr. Leake can no longer be reached at the contact email, website and/or phone number which I was provided earlier. I have now learned through 1and1.co.uk and through Nominet that the only way to correct this ownership registration information is through filing for dispute resolution through Nominet UK."
In support, the Complainant provided a printout of an Escrow.com transaction record, apparently showing transfer of $5000.00 on 26 October, 2004 from Stacey Schuham as Buyer to David Leake as seller, for the Purchase of 6pm.co.uk. Also provided was a copy of an email showing correspondence between Ms Schuham and Mr Leake in the period 15-25 October, 2004.
The Complainant requests transfer of the Domain Name to the Complainant.
Respondent:
No response was received from the Respondent.
General
Paragraph 2 of the Policy requires that, for the Complainant to succeed, it must prove to the Expert, on the balance of probabilities, both that it has Rights in respect of a name or mark which is identical or similar to he Domain Name; and that the Domain Name, in the hands of the Respondent, is an Abusive Registration as defined in Paragraph 1 of the Policy.
Complainant's Rights
The Complainant in this case has asserted in the standard terms of Nominet's Complaint system, that the Domain Name is "identical or similar to a name or mark" in which she has Rights.
In fact, the Complainant's only claim to "Rights" is from the apparent 2004 purchase of the Domain Name from Mr David Leake, who, it is to be presumed, was the real person behind the registrant "djlsolutions.co.uk", although the Complainant provides no evidence specifically addressing this point.
"Rights" under the Policy is broadly defined and is not necessarily limited to Rights in existence at the time of registration of the Domain Names at issue, nor are "Rights" limited to registered trade mark rights.
Accordingly, for the purposes of the Policy, the Expert is prepared to conclude that the Complainant does have Rights in this case in respect of a name or mark, which is similar to the Domain Names at issue.
Abusive Registration
The Complainant also has to show that the Domain Name is an Abusive Registration. Paragraph 1 of the Policy defines "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.
A non-exhaustive list of factors, which may be evidence that the Domain Name is an Abusive Registration is set out in Paragraph 3a of the Policy:
i. Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name:
A. primarily for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly associated with acquiring or using the Domain Name;
B. as a blocking registration against a name or mark in which the Complainant has Rights; or
C. primarily for the purpose of unfairly disrupting the business of the Complainant;
ii. Circumstances indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant;
iii. The Complainant can demonstrate that the Respondent is engaged in a pattern of registrations, where the Respondent is the registrant of domain names (under .uk or otherwise) which correspond to well known names or trade marks in which the Respondent has no apparent rights, and the Domain name is part of that pattern;
iv. It is independently verified that the Respondent has given false contact details to us; or
v. The domain name was registered as a result of a relationship between the Complainant and the Respondent, and the Complainant:
A has been using the domain name registration exclusively; and
B paid for the registration and/or renewal of the domain name registration.
Clearly, it cannot be said that the Domain Name 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". The Domain Name was registered before the Complainant acquired any relevant Rights. Thus the first alternative of Paragraph 1 cannot apply and the Complainant's case must rely on the second.
However, the minimal evidence does not show that the Domain Name has even been in use at all, and there is certainly no evidence whatever of any of the sort of misconduct by the original Registrant/Respondent, which might normally be characterised as "abusive".
Rather, in this case, the Complainant's case seems to rely on a purported inability – four years after the original transaction – for the Complainant to be able to make contact with Mr Leake in order to have the Registrant details changed in accordance with the procedures specified by Nominet for this purpose.
Paragraph 3a(v) of the Policy indicates that the scope of what may be an "Abusive Registration" under the Policy may include cases where there has been some breakdown in an original business relationship between Complainant and Respondent and the original intent of that relationship has been frustrated with some unfairly detrimental consequences for the Complainant.
Thus. the wording of Paragraph 1(ii) "has been used in a manner, which took unfair advantage of or was unfairly detrimental to the Complainant's Rights" may be construed as encompassing situations where the "use" is to be considered as unfair to the Complainant's Rights because the Domain Name is not actually registered in the Complainant's name, when the accepted intention of both parties was clearly that it should ultimately be so registered.
The Expert would be prepared to accept that the intention of Ms Schuham and Mr Leake, from the Ocotber 2004 email exchanges, was that the Domain Name was intended to be put into the Complainant's name as Registrant.
However, in the absence of any corroborating evidence in the Complaint, the Expert is not prepared to accept that the reason this has not been done, should now be put down to some deemed "abusive" conduct on the part of the original Registrant/Respondent.
When this Complaint was first filed, the Complainant was sent Nominet's standard letter of "Warning in relation to short or unsubstantiated complaints", which is intended to alert Complainant's to the problems where little or no evidence is provided to back up a Complaint. The Expert considers that warning was wholly appropriate in this case.
The Complainant has not provided any evidence of efforts made to contact Mr Leake to have the requisite Nominet transfer forms duly completed, nor indeed explained why such efforts were not made in 2004. It took the Expert less than five minutes, using the Nominet WHOIS – i.e. WHOIS for the domain "djlsolutions.co.uk" and a simple Google search for the email element "davidjleake" to identify a likely contact address, and a Myspace entry and related domain "sixpm.co.uk", which the Complainant could potentially also have located and followed up herself.
As noted above, in the Expert's view, in addition to the Complainant's apparent lack of serious effort to identify current contact details for Mr Leake, it is also highly probable that the official correspondence relating to this Complaint will never have been seen by Mr Leake or anyone else representing the original Registrant "djlsolutions.co.uk".
In these circumstances, the Expert considers that it would be unfair now to deem "djlsolutions.co.uk" (and Mr Leake by association) as having made an "Abusive Registration", when there is no evidence that they are even aware that their cooperation has been requested to rectify the original omission, and certainly no evidence that they have unreasonably refused such cooperation (which might justify being deemed "abusive").
The Expert does not believe that it is appropriate for the DRS to be used simply to circumvent Nominet's regular procedures for recording a change of Registrant, without clear evidence that all reasonable efforts have been made to obtain due compliance with those procedures beforehand.
If the Complainant were subsequently to obtain evidence to demonstrate that such efforts had been made and had been clearly frustrated by the non-cooperation of the Registrant/Respondent, then this might provide the basis for a fresh Complaint and it would be open to another Expert to then take a different view.
However, for the purposes of the Policy, on the present evidence, the Expert is not prepared to conclude that the Domain Name, in the hands of the Respondent, is to be deemed an Abusive Registration.
Having concluded that the Complaint does not adequately demonstrate that the Domain Name may presently be deemed an Abusive Registration under the terms of the Policy, the Expert orders that no action be taken in response to this Complaint.
Keith Gymer Date June 23, 2008