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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Elite Personnel Services Ltd v Sevens [2007] DRS 4812 (9 August 2007) URL: http://www.bailii.org/uk/cases/DRS/2007/4812.html Cite as: [2007] DRS 4812 |
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Complainant: Elite Personnel Services Limited
Country: UK
Respondent: Sevens
Country: UK
elite-personnel.co.uk ("the Domain Name")
The Complaint was lodged with Nominet on June 20, 2007. Nominet validated the Complaint and notified the Respondent of the Complaint on June 26, 2007 and informed the Respondent that he had 15 working days within which to lodge a Response. The Respondent did not provide a Response.
On July 30, 2007 the Complainant paid Nominet the appropriate fee for a decision of an Expert pursuant to paragraph 7 of the Nominet UK Dispute Resolution Service Policy ("the Policy").
Dawn Osborne, the undersigned, ("the Expert") confirmed to Nominet that she knew of no reason why she could not properly accept the invitation to act as expert in this case and further confirmed that she knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question her independence and/or impartiality.
The Complainant acquired the business and assets of a recruitment business in December 2000 known as Elite Personnel. One of the assets was the Domain Name. The Domain Name was not formally transferred as the Respondent could not be located or contacted. It is believed that "Sevens" was an independent contractor. However the Registrant contact details were changed to the address of the Managing Director of the Complainant. Nominet has advised the Complainant that the only way to correct the registrant name details is to commence the Dispute Resolution Procedure.
Complainant:
The substance of the Complaint is as follows:
1. Section 3 of the Policy provides a list of non exhaustive factors which may be evidence that the Domain Name is an Abusive Registration.
2. Section 3(a) (v) of the Policy gives one of these criterion as:
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.
3. On the facts of this case because the Complainant acquired the assets subsequent to the registration of the Domain Name there never was a relationship between the Respondent and the Complainant. However, the list of factors in Paragraph 3 of the Policy is non exhaustive and the Respondent has had no involvement with the Domain Name, the Complainant has been using the Domain Name without objection by the Respondent and the Complainant has paid for the renewal of the Domain Name Registration.
4. The Domain Name in the hands of the Respondent is an Abusive Registration.
Respondent:
No Response was submitted.
General
To succeed in this Complaint the Complainant has to prove to the Expert pursuant to paragraph 2 of the Policy on the balance of probabilities, first, that it has Rights (as defined in paragraph 1 of the Policy) in respect of a name or mark identical or similar to the Domain Name and, secondly, 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 must prove it has enforceable legal rights in a name or mark which is identical or similar to the Domain Name.
The Complainant does not appear to have any registered trade marks for "Elite-Personnel". However, since 2000 it has been trading as Elite Personnel and appears to have built up trading goodwill in this name since then. It is also clear that the Complainant has rights in the company name Elite Personnel Services Limited and it is similar to the Domain Name.
Accordingly, the Expert finds that the Complainant has demonstrated that it has Rights in respect of a name or mark, which is similar to the Domain Name.
Abusive Registration
This leaves the second limb. Is the Domain Name, in the hands of the Respondent, 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."
5. A non-exhaustive list of factors, which may be evidence that the Domain Name is an Abusive Registration is set out in paragraph 3 of the Policy. Section 3(a) (v) of the Policy gives one of these criterion as:
" (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.
6. The Complainant has been using the Domain Name exclusively and paying for its renewal. Further, whilst the Complainant does not technically come within paragraph 3 (a) (v) because it had no relationship with the Respondent, the Respondent did have a relationship with the Complainant's predecessor. Further it seems to the Expert that Section 3 (a) (v) was intended to cover situations where the Domain Name is registered for a company by an individual who then cannot be located due to passage of time. This case is such a case and although the Complainant does not come strictly within paragraph 3 (a)(v) as drafted, the criteria in Paragraph 3 are not exclusive. Certainly, it appears the Domain Name should be in the name of the Complainant and it is an accident of history that it remains in the name of the Respondent. As such, the Expert is satisfied that the Domain Name is, in the hands of the Respondent, an Abusive Registration.
7. Decision:
In light of the foregoing findings, namely that the Complainant has Rights in respect of a name or mark which is identical to the Domain Name and that the Domain Name, in the hands of the Respondent, is an Abusive Registration, the Expert directs that the Domain Name be transferred to the Complainant.
Date August 9, 2007
Dawn Osborne