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Nominet UK Dispute Resolution Service |
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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> The Buckland Project Ltd v B-Com International [2007] DRS 4938 (11 September 2007) URL: http://www.bailii.org/uk/cases/DRS/2007/4938.html Cite as: [2007] DRS 4938 |
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Nominet UK Dispute Resolution Service
DRS Number 4938
The Buckland Project Ltd
v
B-Com International
Decision of Independent Expert
Complainant: The Buckland Project Ltd
Country: GB
Respondent: B-Com International
Country: GB
bucklandhall.co.uk - registered on 1 September 1999
The Complaint was lodged with Nominet on 7 August 2007. Nominet validated the Complaint and notified the Respondent of the relevant Complaint on 7 August 2007 and informed the Respondent that it had 15 days within which to lodge a Response.
No response was received. No mediation having been possible, on 7 September 2007 the dispute was referred for a decision by an Independent Expert following payment by the Complainant of the required fee for a decision of an Expert pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service Policy ("the Policy").
David Flint, the undersigned, ("the Expert") confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as expert in this case and further confirmed that he knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question his independence and/or impartiality.
None
The Complainant have tried and failed to contact the company that registered the domain name bucklandhall.co.uk on our behalf. They now need to get the domain name transferred to our ownership before the registration runs out on 1st September 2007. Our rights to the domain name bucklandhall.co.uk Buckland, as an estate, has been in existence and known by this name since the early sixteenth century and the mansion on the estate has been called Buckland Hall since 1989. The Buckland Project Ltd is named after the Hall and the company was set up in 1996 to acquire, develop and operate Buckland Hall. The Buckland Project Ltd has no other business activity other than that at Buckland Hall. We run Buckland Hall as a conference and retreat centre and like most hospitality enterprises with a single venue, we use the building name (Buckland Hall) as our trading name. Practically all business with clients and suppliers is done under the trading name "Buckland Hall" and it is used in our bank accounts. "Buckland Hall" is used for all promotional purposes and was the obvious name to choose when we wished to set up a website. However, initially, we had thought to have a shorter website address and had considered using just the name "buckland.co.uk, but that domain was already in use. So, we opted for "bucklandhall.co.uk".
In 1999 we employed B-Com International to set up our website, and register www.bucklandhall.co.uk and www.buckland.org.uk as domain names on our behalf. (buckland.org.uk was never used. Since registration of bucklandhall.co.uk in 1999, we have used it as our sole website.
Complainant
I. We believed we were paying for the domain name to be ours and not registered to B-Com International. See letter dated 27th August 1999 - this is our initial payment for the registration of bucklandhall.co.uk to ourselves See letter dated 28th August 1999 confirms our request to register 2 domain names to ourselves bucklandhall.org.uk bucklandhall.co.uk - includes payments for such Fax dated 2nd July 2002 we asked them too redirect the domain name to a different host
II. In February 2007, we had an eCommerce review with Opportunity Wales, which informed us that bucklandhall.co.uk was not registered in our own name as we had presumed. And, that this registration was due to expire in September. They recommended that we immediately set about having this domain name transferred over to ourselves. We have tried to contact B-Com International to request a transfer of registration, but we have failed totally to get in contact them. They appear to have gone out of business. Please see our attempts at communication below: B-Com International
III. Since we have always called ourselves Buckland Hall, this is the title line used in all promotional material. There are 5 examples of the kind of advertising we have been paying for going back to 1998
IV. The Domain Name as an Abusive Registration. The Complainant submits that the Domain Name is an Abusive Registration as the Respondent acquired and is using the Domain Name in a way which takes unfair advantage of and is unfairly detrimental to the Complainant's Rights.
V. This is evidenced by the following:
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.
VI. The Complainant seeks transfer of the Domain Name.
Respondent
No response was received from the Respondent.
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
In this case the first limb of that task is straightforward. The Complainant has been known under a name identical to the Domain Name since 1989. In those circumstances the Expert is satisfied that the Complainant does have Rights in respect of a name or mark which is identical or 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."
A non-exhaustive list of factors, which may be evidence that the Domain Name is an Abusive Registration is set out in paragraph 3a of the Policy. There being no suggestion that the Respondent has engaged in a pattern of making Abusive Registrations and there being no suggestion that the Respondent has given to Nominet false contact details, the only potentially relevant 'factor' in paragraph 3 is to be found in subparagraph a.v, which reads as follows:
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.
The Expert therefore considers that the test of paragraph 3.a.v has been satisfied.
The Expert interprets "as" in sub-paragraph 3.i.B as being synonymous with "for the purpose of". Were it to be interpreted otherwise all domain name registrations would inevitably constitute "blocking registrations" for any later arrival wishing to use the name in question.
Accordingly, the Expert finds that the Domain Name is an Abusive Registration within the definition of that term in paragraph 1 of the Policy on the basis that it was registered in a manner which, at the time when the registration took place, took unfair advantage of the Complainant's rights.
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 bucklandhall.co.uk be transferred to the Complainant.
David Flint
11 September 2007
