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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Richfords Ltd v Parker [2004] DRS 1603 (27 April 2004) URL: http://www.bailii.org/uk/cases/DRS/2004/1603.html Cite as: [2004] DRS 1603 |
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NOMINET UK DISPUTE RESOLUTION SERVICE
DRS 01603
RICHFORDS LIMITED
- AND -
SHAUN PARKER
RE: RICHFORDS-RESTORATION.CO.UK
Decision of Independent Expert
Parties:
Complainant: Richfords Limited
Represented by: Mr. Ralph Jones
Respondent: Mr. Shaun Parker
Disputed Domain Name: richfords-restoration.co.uk
Abbreviations used in this decision:
Abbreviation Definition
DRS Nominet UK's Dispute Resolution Service
DRS Policy Nominet UK's Dispute Resolution Service Policy
DRS Procedures Nominet UK's Dispute Resolution Service Procedures
The Expert Kirsten Houghton
Procedural Background:
1. The Complaint was lodged with Nominet on 3rd March 2004 and hard copies were received on the same day.
2. Nominet validated the Complaint on 8th March 2004.
3. On 8th March 2004, Nominet sent the complaint to
(a) The Respondent’s address by the fax number listed in Nominet’s database;
(b) By e-mail to the Respondent’s email address listed in Nominet’s database and
(c) By e-mail to postmaster@richfords-restoration.co.uk
4. No response was received and, accordingly, mediation was not attempted.
5. On 13th April 2004, the Complainant paid the fee in order to obtain a decision of an independent expert.
6. On 19th April 2004, I confirmed to Nominet that I knew of no reason why I could not properly accept the invitation to act as expert in this case and further confirmed that I knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question my independence and/or impartiality.
Outstanding Formal/Procedural Issues (if any):
7. None.
The Facts:
(1) The Parties – the Complainant
8. The Complainant is a business which specialises in fire and flood restoration for clients whose premises have been damaged. The Complaint provides very little additional information about the Complainant. I am told that the business was set up in 1977 and incorporated in March 2001 and I have been provided with a company search which confirms the date of registration.
(2) The Parties - the Respondent
9. I have not been told anything about the Respondent. www.highposition.net leads to a website referring to the Respondent, and offers to provide website design and positioning services.
(3) The Complainant’s rights
10. The Complaint contains only vague assertions as to the Complainant’s rights in “richfords-restorations”:
“The domain name richfords-restoration.co.uk exactly describes Richfords Ltd - a Fire and Flood Restoration Company. Richfords Ltd were founded 1977 and registered as a private limited Company on 21-Mar-2001. I am providing evidence (in the form of invoices) that Richfords Ltd were trading as Richfords Fire & Flood Restoration prior to the registration date of the disputed domain on 04-Sep-2001.”
11. The invoices referred to are as follows:
(a) A credit note for £164.50 dated 28th June 1999 addressed to “Richfords” at “The Old Museum, Trevenson Road, Camborne and
(b) Part of an invoice for stationery dated 30th June 1999 addressed to “Richfords, Fire & Flood Restoration” at The Old Museum etc.
12. The Domain Name was registered by the Respondent on 4th September 2001.
13. The DRS Policy (Definitions, paragraph 1) states as follows:
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;
14. I do not have any evidence as to how any goodwill etc. was transferred from the unincorporated business to the limited company which makes the complaint. I have only been provided with the scantest evidence that there was an unincorporated business trading in 1999, and none to suggest that there was any business called “Richfords” trading at the time of registration in September 2001, although I am told that a limited company was formed in March 2001. I do not have any evidence to show that the limited company which makes the complaint was trading at the time the Domain Name was registered – I have not been provided with any accounts, details of turnover etc., although it is clear that the limited company was registered at that date.
15. Accordingly, the evidence which has been put forward to support an allegation that the Complainant has rights in the name “richfords-restorations” or a name similar to that one, is very thin indeed, amounting to little more than the fact that there is a company called Richfords Limited which existed at the date of registration.
16. This is unsatisfactory. If Richfords Limited is a substantial concern which has built up goodwill in a particular business or geographical area, or which has, perhaps, registered trademarks or other names, there is no reason why such evidence should not have been put forward.
17. However, I bear in mind that Mr. Jones, the signatory, does not appear to have any legal experience, and also that a number of other experts on the DRS Panel have held that the mere registration of the name of a limited company is sufficient to give a complainant “rights” in a name for the purpose of the DRS Policy.
18. In the circumstances, I find that the Complainant has rights in a name which is similar to the Domain Name.
(4) The Complaint
19. The Complaint is very sparse:
“The website www.richfords-restoration.co.uk is currently being used to improve search engine positioning for a competitor to Richfords Ltd. The web page contains a number of links and keywords designed to improve search engine rankings and a "Click to Enter" link taking visitors to http://www.merryhill-idm.co.uk/. We believe the use of the richfords-restoration.co.uk domain name deliberately misleads our customers, taking them to a competitors website. The website also attempts to be ranked higher than Richfords Ltd's own website in search engine searches.”
20. The Complainant must establish that the registration or use of the Domain Name by the Respondent is an abusive registration. The DRS Policy defines “abusive registration” as follows:
“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…”
21. The Complainant has not alleged abusive registration under limb (i). In any event, in my view, the evidence provided by the Claimant is insufficient to substantiate any such claim.
22. Www.richfords-restorations.co.uk leads to a page which contains a number of links and photographs of damaged items. There is no reference to the name of any particular business. However, clicking on any of the links on this page leads to a site at http://www.merryhill-idm.co.uk/, which appears to belong to a fire and flood restoration company based in Essex and the West Midlands, but which also provides its services nationwide. It is not clear from either site whether there is any connection between this company and the Respondent, but it seems likely that the company has retained the Respondent or his business to register the Domain Name for it or to provide some other services.
23. Richfords Ltd.’s own website (www.richfords.com) shows that the company supplies similar services in the west of England and some services nationwide. For what it is worth, www.richfords.co.uk appears to belong to a business that makes rubber stamps and resolves to a site with a different domain name. www.richfords.com does not show that the company trades under the name “Richford Restorations” (rather, it seems to go by the name “Richfords Fire & Flood”). A Google search for “Richfords” produces the Complainant’s website at the top of the list, as does a search for “richfords restoration.”
24. The Complainant asserts that its customers are being misled, but has produced no evidence to support that contention. I think it is inherently unlikely that any customer or potential customer of the Complainant would be misled by the use of the Domain Name principally because it seems very unlikely that any potential customer would search for the Complainant using the words of the Domain name as search term and because those words, in any event, bring the Complainant’s business to the or near the top of search results in any event.
25. The Complainant also asserts that the Domain Name is being used to attempt to improve search engine positioning for its competitor. This does seem likely, based on the limited information available to me. Bearing in mind that a direct business competitor appears to be benefiting (or at least, attempting to benefit) from the use of the Complainant’s name, which is being used to generate additional goodwill and contacts for the competitor, and the lack of any explanation from the registrant of the name for its use of the name, I find that the Domain Name has been used in a manner that takes unfair advantage of the Complainant’s rights, and is an abusive registration in the hands of the Respondent.
Decision
26. In these circumstances, I find that the Complainant has rights in a name or mark which is similar to the Domain Name, and that the Domain Name should be transferred to the Complainant as requested.
Kirsten Houghton
Date: 27 April 2004