[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Butler Group v Verwierden [2006] DRS 3857 (8 December 2005) URL: http://www.bailii.org/uk/cases/DRS/2005/3857.html Cite as: [2006] DRS 3857

[New search] [Printable RTF version] [Help]

 


Butler Group – v – Danny Verwierden

Nominet UK Dispute Resolution Service

DRS 3857

Butler Group and Danny Verwierden

Decision of Independent Expert

1. PARTIES:

Complainant: Butler Group

Country: GB

Respondent: Danny Verwierden

Country: NL

2. DISPUTED DOMAIN NAME:

butlergroup.co.uk. ("Domain Name")

3. PROCEDURAL BACKGROUND:

3.1      The dispute was entered in to the Nominet Dispute Resolution Service (DRS) on the 19^th of October 2005. Hard copies of the Complaint were received in full by Nominet on the 21^st of October 2005 and on the same day the Complaint was validated by Nominet and a copy of the Complaint was sent to the Respondent.

3.2      No response was received by the Respondent and therefore informal mediation was not possible.

3.3      On the 15^th of November 2005 Nominet informed the Complainant that a Response had not been received. On the 17^th of November 2005 the Complainant paid the fee to obtain an Expert Decision pursuant to Paragraph 7 of the Nominet Dispute Resolution Policy ("the Policy").

3.4      On the 24^th of November 2005, Veronica Bailey, the undersigned Expert ("the Expert"), having confirmed to Nominet that she was independent of each of the parties and that she knew of no matters which ought to be drawn to the attention of the parties, which might appear to call in to question her independence and/or impartiality, was appointed Expert.

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 for the conduct of proceedings under the Dispute Resolution Service ("the Procedure").

4.2      Paragraph 15(c) of the Procedure provides that: "If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure or any request by us or the Expert, the Expert will draw such inferences from the Party's non-compliance as he or she considers appropriate".

4.3      Nominet appears to have used all the available contact details to try to bring the Complaint to the Respondent's attention. There do not appear to be any exceptional circumstances involved and in accordance with Paragraph 15(c) of the Procedure a Decision will be made on the Complaint notwithstanding the absence of a Response.

4.4      The Complainant has not provided any evidence to support its Complaint nor set out in any detail why the Domain Name should be considered an Abusive Registration (as defined in paragraph 1 of Policy), nor referred to or discussed any applicable aspects of paragraph 3 of the Policy which support the Complainant's assertion that the Domain Name is an Abusive Registration. The Expert has considered whether to call for a further statement from the Complainant in accordance with paragraph 13. The Expert has had the opportunity of reading the decisions in DRS 00292 Chivas Brothers Limited v. David William Plenderleith which also had to consider whether to call for an additional statement from the parties or whether the expert should make further searches himself. The present Complaint is not one where there is a small piece of information missing in an otherwise well formed and well documented Complaint and the Expert has decided not to call for an additional statement for the reasons set out in more detail below.

5. THE FACTS:

5.1 The Domain Name butlergroup.co.uk was registered to the Respondent on the 13^th September 2005.

5.2 The Complainant is the registrant of the domain name butlergroup.com which it uses in connection with its website at www.butlergroup.com.

6. THE PARTIES' CONTENTIONS:

Complainant

6.1      The Complainant makes the usual submissions that the Domain Name in dispute is identical or similar to a name or mark in which it has Rights; and the Domain Name in the hands of the Respondent is an Abusive Registration.

6.2      The substance of Complainant's Complaint is brief and states that:

"Butlergroup.co.uk was registered to the Butlergroup until early 2005, the employee's name that it was registered with ceased working for the Butlergroup so when the domain came up for renewal the renewal request wasn't received. After this came to our attention in September we have tried contacting the new owners with no response. We are the owners of www.butlergoup.com and have a trading name Butlergroup and therefore would like the domain back. Can you help with our request?"

The Complainant has filed no evidence to support its contentions.

Respondent

6.3 The Respondent has not submitted a Response.

1. DISCUSSIONS AND FINDINGS

Burden of Proof

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

(i). it has Rights in a name or mark that 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. The Complainant has provided no evidence to support its claim that it has Rights in a name or mark that is identical or similar to the Domain Name. The Expert has made a search of the website at www.butlergroup.com, which indicates that Butler Group website is run by Butler Direct Limited which has its headquarters at the same address of the Complainant. A search of Companies House register carried out by the Expert shows that Butler Direct Limited was incorporated in England and Wales on the 28^th April 1997 (prior to registration of the Domain Name) and has company number 03360695 but that its registered office is different from its headquarters address shown on the website at www.butlergroup.com. This search does little to assist the Expert in determining the Complaint. The Complainant has not asserted that the company Butler Direct Limited, which runs the website at www.butlergroup.com has rights in the name or mark which is similar to the Domain Name as the Complaint being bought in the name of Butler Group. It does however, raise that question in the Expert's mind of whether Butler Group is just a trading name used and owned by Butler Direct Limited rather than an entity in its own right.

7.3. In the absence of any evidence to support its assertion that the Complainant has Rights in the name which is the same or similar to the Domain Name, the Expert is unable to conclude, on the balance of probabilities that the Complainant has Rights in the name or mark that is similar to the Domain Name.

Abusive Registration

7.4. The Complainant has provided no evidence to support its claim that the Domain Name, in the hands of the Respondent, is an Abusive Registration. Further, the Complainant has not identified any of the non exhaustive list of factors set out in paragraph 3 of the Policy which may be evidence of Abusive Registration, or any other factors which, if proven may be evidence of Abusive Registration.

7.5. The Expert is obliged to determine the Complaint on the basis of the Parties' submissions, the Policy and the Procedure (DRS Procedure Paragraph 16 a). It is not for the Expert to construct the Claimant's case or carry out searches on its behalf. The DRS Policy at paragraph 2c recommends that the parties use the help and guidance which may be found at the Nominet's website and which in turn emphasises the need to provide evidence to support a party's assertions.

7.6. The Complainant has not identified any factors which might be evidence of Abusive Registration and in the absence of any documentary evidence to support its assertion, the Expert is unable to conclude on the balance of probabilities the Domain Name is an Abusive Registration.

8. DECISION

For the reasons set out above the Expert finds that the Complainant has not proved, on the balance of probabilities, both elements of paragraph 2a of the Policy, and accordingly makes no order that the Domain Name be transferred to the Complainant.

Veronica M Bailey

8 December 2005