Woodbills Ltd v Granite Internet [2004] DRS 1886 (28 August 2004)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

Nominet UK Dispute Resolution Service
DRS 01886
Woodbills Ltd. v. Granite Internet (In Liquidation)
Decision of Independent Expert

3. Procedural Background:
3.1. The chronology of the dispute was:
08/07/2004 Dispute entered into system
08/07/2004 Hardcopies of complaint received by DRS staff
14/07/2004 Complaint validated
14/07/2004 Complaint documents generated and sent out to
Parties
06/08/2004 No formal response received from Respondent
06/08/2004 “No response to complaint” process followed and documents generated and sent to Complainant.
20/08/2004 Expert fees received from Complainant
3.2. On the 23rd. August 2004 I (Iain M. Tolmie, the undersigned, “the Expert”) was contacted by the Nominet Dispute Resolution Service and I confirmed to them that:
“I am independent of each of the parties. To the best of my knowledge and belief, there are no facts or circumstances, past or present, or that could arise in the foreseeable future, that need be disclosed as they might be of a such a nature as to call in to question my independence in the eyes of one or both of the parties.”
3.3. I was appointed as the Independent Expert for this Case from 27th August 2004 to respond on or before 13th September 2004.

4. Outstanding Formal/Procedural Issues:
4.1. The Respondent made a response that does not meet the criteria set out in paragraph 5 of the Nominet Dispute Resolution Procedure (“the Procedure”). The DRS staff have treated the response received as a “no response” and the no response procedure as set out in the Procedure has been followed.
4.2. The situation is unusual but by no means exceptional, there being no compulsion upon Respondent to make a formal response. I have not been made aware of any specific exceptional circumstances so I shall proceed as permitted by paragraphs 15b and 15c of the Procedure
“If, in the absence of exceptional circumstances, a Party does not comply with any time period laid down in this Policy or the Procedure, the Expert will proceed to a Decision on the complaint.”
"If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure…, the Expert will draw such inferences from the Party’s non-compliance as he or she considers appropriate."

5. The Facts:
5.1. There are very few hard facts available to me. The Domain Name entry in the Nominet Register is as follows:
Domain Name:
devongardenfurniture.co.uk

    Registrant's Address:
        Portsmouth Arms Sawmill
        Burrington
        Umberleigh
        Devon
        EX37 9ND

    Registrant's Agent:
        Designer Servers Limited [Tag = DSVR]
        URL: http://www.dsvr.co.uk

    Relevant Dates:
        Registered on: 15-Feb-2000
        Renewal Date:   15-Feb-2006
        Last updated:   05-Jul-2004

5.2. It should be noted that the Registrant name is Granite Internet but that the address is the Complainant’s address.
5.3. Nominet DRS staff have carried out company searches and found that Granite Internet is in voluntary liquidation, the Liquidator being Mr. G. R. Frampton who is entered as the Respondent.

6. The Parties’ Contentions:
Complainant
6.1. The entirety of the complaint is as follows:
6.1.1. I confirm that Domain Name(s) in dispute are identical or similar to a name or mark in which I have Rights.
6.1.2. I confirm that Domain Name(s) in the hands of the Respondent is an Abusive Registration.
6.1.3. The original website was set up by Granite, a website development business. Recently , we have had the site re-developed by Clare Associates. The problem has arisen when the registration needs renewing. The domain name does not have a registered address and is therefore causing problems with renewal. We would like to register it in the Company name at the Company address.
Respondent
6.2. The Respondent made the following short response on 16th July 2004:
6.2.1. Mr Frampton ceased to act as Liquidator on 25th June 2004. We therefore have no standing to deal with this matter.
6.3. This was a non-compliant response and is only included for clarity.

7. Discussion and Findings:
Burden of Proof
7.1. In order for a Complainant to succeed he must (under Paragraph 2 of the DRS Policy – “the Policy”) prove to the Expert, on the balance of probabilities, both:
i that he has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
ii that the Domain Name, in the hands of the Respondent, is an Abusive Registration as defined in Paragraph 1 of the Policy.
The Claimants case as presented
7.2. In my opinion, the Claimant’s formal complaint does not address the requirements in paragraph 2 of the DRS Policy (7.1 above) in whole or in part. He makes no attempt to identify the Rights he is claiming, or to explain how he acquired those rights, nor does he explain why the Domain Name registration appears as it does, and why that makes it an Abusive Registration.
7.3. His complaint is inaccurate (at least as at 5th July 2004) in that there is an address on the Registration (his address), and it does not require renewal until 15th February 2006. His complaint is dated 7th July 2004. I have no way of knowing what the Registration details were before 5th July 2004.
7.4. It may have been valid for Granite Internet to register the Domain in their name – it may have been a contractual arrangement. The Complaint does not address that issue. There is no evidence supplied by the Complainant as to whether (for example) he has approached either Granite Internet in the past, or the Liquidator recently, to arrange the transfer of the Domain Name. It may be that the Claimant does not know that Granite Internet is in liquidation. It may be that there is no dispute.
7.5. It is possible to speculate and to produce several scenarios which would fit the few facts that I have at my disposal, however I would simply be speculating, and I would have no way of knowing which (if any) of my scenarios might be the correct one. It is not appropriate for an Expert to put himself in the position of filling deficiencies in the complaint on behalf of the Complainant.
7.6. The Procedure provides (at paragraph 13) an opportunity for me to seek additional information from the Complainant or Respondent:
a. In addition to the complaint, the response and if applicable the reply and any appeal, the Expert may request further statements or documents from the Parties. The Expert will not be obliged to consider any statements or documents from the Parties which he or she has not received according to the Policy or this Procedure or which he or she has not requested.
7.7. I have to consider how far such a course would be helpful. It is quite possible either that the complaint is entirely misconceived, or in the alternative that it is mischievous. It is not immediately clear to me that there are items of information that could be requested that would clarify the complaint, but rather that questions would have to be asked of the Complainant in order to prompt a review of the nature of the complaint. I do not consider that such a course is a proper one to follow. The Expert is required to be independent and not to involve himself on behalf of any one party.
7.8. Whilst I am sympathetic towards a small businessman trying to deal with the complexities of this subject, I can only make the following points:
7.8.1. It was open to him to seek advice on how to deal with whatever problem he may think he has. The problem may indeed be of an entirely different nature and amenable to other solutions rather than generating a complaint under the Dispute Resolution Procedure. Is there indeed a dispute?
7.8.2. The automated process that he used to submit his complaint includes considerable help towards understanding how to submit a complaint. There are also sample complaints that he could have used as a pattern. All the available information was apparently ignored. Whilst the process is intended to be simple, it is also a serious matter and requires careful thought on behalf of the Claimant.
7.8.3. If I were to accept a 6 line vague complaint, and extrapolate from it in order to produce something amenable to the Dispute Resolution process, not only would that be an abuse of the process, but it would also create a precedent which could damage the good name of the Nominet DRS.
7.8.4. The complaint is so unclear that to ask for additional information from the Complainant (as allowed for in the Procedure) would be inviting him to completely rework the complaint – and carries the risk of being drawn into a dialogue. Once more there would be the risk of abuse of process and creating precedents.
7.9. Whilst this defective complaint may well be the result of a naïve misunderstanding, I have also to consider that it may be an attempt to obtain an unjustifiable change in Registration. I have no way of deciding which it is, and there is a possibility of setting dangerous precedents if I attempt to deal with it as it stands.
7.10. The Complainant has not discharged his burden of proof as required by paragraph 2 of the Policy. He has not proved to my satisfaction “that he has Rights in respect of a name or mark which is identical or similar to the Domain Name”. I must therefore dismiss the complaint.

8. Decision:
8.1. For the reasons set out above I dismiss the complaint.
8.2. I determine that there should be no action taken on the Domain Name registration.

______________________________
Iain M. Tolmie (“the Expert”)
Date: 28th August 2004

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Woodbills Ltd v Granite Internet [2004] DRS 1886 (28 August 2004) URL: http://www.bailii.org/uk/cases/DRS/2004/1886.html Cite as: [2004] DRS 1886