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	Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> LHH Ltd v IcedIT.com [2005] DRS 2823 (29 September 2005) URL: http://www.bailii.org/uk/cases/DRS/2005/2823.html Cite as: [2005] DRS 2823

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LHH Ltd –v- IcedIT.com

Nominet UK Dispute Resolution Service

DRS 02823

LHH Limited and IcedIT.com

Decision of Independent Expert

1. PARTIES:

Complainant: LHH ltd

Great Britain

Respondent: IcedIT.com

Australia

2. DOMAIN NAME:

lhhscotland.co.uk (the "Domain Name")

3. PROCEDURAL BACKGROUND:

3.1      The dispute was entered into the Nominet Dispute Resoloution Service ("DRS") system on 27 July 2005. Hardcopies of the complaint were received and validated by Nominet on 10 August 2005 and a copy sent to the Respondent on the same day. No response has been received from the Respondent. On the 8 September 2005 the fee was paid for an Expert's Decision pursuant to paragraph 21 of the Nominet DRS procedure (the "Procedure").

3.2      On the 12 of September 2005 Nominet invited Veronica Bailey the undersigned expert (the "Expert") to provide an Expert Decision on the case. The Expert accepted the appointment, having first confirmed that she knew of no reason why she should not accept the appointment or why her independence or impartiality might be called into question.

3.3      On 25 September 2005, the Expert, pursuant to paragraph 13 of the Procedure, requested a copy of the Complainant's certificate of incorporation.

4. OUTSTANDING FORMAL/PROCEDURAL ISSUES:

4.1      The Respondent has not submitted a response to Nominet in time (or at all) in compliance with paragraph 5(a) of the DRS Procedure.

4.2      Paragraph 15(b) of the Procedure provides that: "If, in the absence of exceptional circumstances, a Party does not comply with any time period laid down in the Policy or this Procedure, the Expert will proceed to a Decision on the complaint."

4.3      Nominet has used all available contact details to try and bring the complaint to the Respondent's attention. There do not appear to be any exceptional circumstances involved, and in accordance with paragraph 15(b) of the Procedure, a decision will be made on the complaint notwithstanding the absence of a response.

5. THE FACTS:

5.1      The complaint is made by LLH Ltd.

5.2      The Domain Name was registered by the Respondent on 30 June 2004.

5.3      Large Holiday Houses Limited is a company registered in Scotland on 7 October 2003 and acts as a letting agent for holiday houses in Scotland and France. It markets properties for holidays lets in Scotland under the names "Large Holiday Houses Scotland" and "Little Holiday Houses Scotland" and uses the abbreviation "LLH" in connection with its domain name lhhscotand.com and its web address www.lhhscotland.com.

5.4      The domain name lhhscotland.com was registered to Large Holiday Houses Limited on 29 June 2000. It uses as its web address www.lhhscotland.com which features prominently on all Large Holiday Houses Limited's advertising, marketing material and stationary

5.5      At the time the complaint was made, the web site at www.lhhscotland.co.uk listed the names of properties let exclusively by Large Holiday Houses Limited and provided links to pornographic sites. The content of that web site has changed and it now provides links to holiday businesses at the lower end of the market which appear to have no connection with Large Holiday Houses Limited or the Complainant, LHH Ltd.

6. THE PARTIES' CONTENTIONS:

The parties' contentions may be summarised as follows:

Complainant

6.1      The Complainant contends that it has rights in the disputed Domain Name because:

(i) it trades under the name LHH Ltd and has done so since 1998;

(ii) its domain name LHHScotland.com, which is used in connection with its web address, was registered on 29 June 2000;

(iii) LLH Ltd has advertised using its web address www.lhhscotland.com since 29 June 2000 and used that web address on all its advertising and correspondence

(iv) LLH Ltd provides a service using the name LHHScotland.com.

6.2      The Complainant also contends that the Domain Name in the hands of the Respondent is an Abusive Registration because:

i) it was registered to primarily to disrupt the Complainant's business and uses the name "LHHScotland" which is identical to a business name used by the Complainant;

ii) the website to which the Domain Name resolves lists Lochsherrif, Pitcalzean House, Auschnagonalin House and Forest Lodge, which are properties let exclusively by the Complainant, and provides links from those property names to pornographic sites;

iii) it is used in a way which has confused people into thinking that the disputed Domain Name is controlled by the Complainant.

Respondent

6.3 The Respondent has not filed a response.

1. DISCUSSIONS AND FINDINGS

7.1      Paragraph 2 of the Policy requires that the Complainant must prove, on the balance of probabilities, that:

i. the Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and

ii. the Domain Name, in the hands of the Respondent, is an Abusive Registration (as those capitalised terms are defined in paragraph 1 of the Policy).

Rights

7.2      Rights as defined by paragraph 1 of the Policy: "includes, but is not limited to, rights enforceable under English law. However, a Complainant will be unable to rely on rights in a name of term which is wholly descriptive of the Complainant's business". In determining whether a party has Rights in a domain name, the first and second suffixes (.co.uk) should be ignored.

7.3      As stated by the Appeal Panel in DRS 00248 Seiko. UK Limited v Designer Time/Wanderweb: "The requirement to demonstrate "rights" is not a particularly high threshold test."

7.4      A considerable amount of evidence has been submitted by the Complainant to demonstrate that it has rights in a name which is similar to the Domain Name. This evidence relates not to LHH Ltd's use of the name "LHH Scotland" but to use of that name and the rights of Large Holiday Houses Limited. It includes evidence showing that Large Holiday Homes Limited is the registrant of the domain name "lhhscotland.com" which is used in connection its web address at www.lhhscotland.com. That web address also appears on Large Holiday Houses Limited's letter head, marketing materials and advertising and as such forms part of its branding.

7.5      The Complainant asserts that it has traded under the name "LHH Ltd" since 1998. However, the certificate of incorporation (provided in response to the request pursuant to paragraph 13 of the Procedure referred to at 3.3 above) is for Large Holiday Houses Limited. That certificate of incorporation shows that Large Holiday Houses Limited was incorporated on 7 October 2003. There is no certificate of incorporation submitted for LHH Ltd which if produced might show that the Complainant has used the name LHH Ltd since 1998, or is the same legal entity as Large Holiday Houses Limited. It is quite possible that there may be other companies registered with the initials "LHH" as part of its corporate name. Accordingly, I am unable to conclude that the Complainant, LHH Ltd and Large Holiday Houses Limited are the same legal entity.

7.6      Paragraph 16 a. of the Procedure requires that the Expert must decide the complaint on the basis of the Parties' submissions, the Policy and the Procedure. The evidence, which the Complainant has submitted to support its complaint, relates to Large Holiday Houses Limited rather than to the Complainant, LHH Ltd.

7.7      Although, the Respondent has not filed a Response, this does not relieve the Complainant of its obligation to prove, on the balance of probabilities, that it has rights in a name or mark which is similar to the Domain Name as required by paragraph2 a.i of the DRS Policy. Considering all the circumstances and the evidence submitted, I am unable to find that the Complainant has proved, on the balance of probabilities, that LLH Ltd, has rights in the name, which is similar to the Domain Name.

Abusive registration

7.8      As the Complainant has failed to show that it has Rights in the name, which is similar to the Domain Name, it is not necessary to consider whether the Domain Name in the hands of the Respondent is an Abusive Registration as set out in paragraph 3 of the Policy.

7.9      It is outside the scope of this decision to comment on who does have Rights in the Domain Name. However, without prejudging the merits of any future case, it seems likely that the company Large Holiday Houses Limited may have these Rights and that a complaint filed by that company would stand a better chance of success.

2. DECISION

For reasons set out above, the Expert finds that the Complainant has not proved on the balance of probabilities that it has Rights in the name which is similar or identical to the Domain Name makes no order in respect of the Domain Name.

VERONICA BAILEY

Date: 29 September 2005