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	Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Wrigglesworth v Insiteswebdesign [2008] DRS 5536 (24 April 2008) URL: http://www.bailii.org/uk/cases/DRS/2008/5536.html Cite as: [2008] DRS 5536

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NOMINET UK DISPUTE RESOLUTION SERVICE DRS NUMBER 5536 MRS EMMA WRIGGLESWORTH v INSITESWEBDESIGN

1. Parties

Complainant: Mrs Emma Wrigglesworth

Country: GB

Respondent: insiteswebdesign

Country: GB

2. Domain Name

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

3. Procedural Background

1. The Complaint was sent to Nominet in two forms, each dated 11 March 2008. The one was unsigned and without annexes, sent electronically. The other was a hard copy, signed by the Complainant and accompanied by the annexes referred to in paragraph 16 below. The Complaint in these two forms was received by Nominet, which validated the Complaint on 13 March 2008. On the same date, Nominet notified the Respondent of the Complaint by 2 letters. One letter was sent to the address recorded on the register held by Nominet relating to .uk domain name registrations ("the Register"), and accessible by a WHOIS search. That address was 8 Elm Grove, St Monans, Anstruther, Fife, KY10 2DA. The address to which the second letter was sent had been provided by the Complainant in her Complaint and was slightly different to the registered address, in that it omitted 'Anstruther'.
2. By email dated 14 March 2008, a Mr David J. Wright informed Nominet that he had received both notices, but that he was not the owner of the Domain Name, nor was he "Ian Johnston, the owner of 'Insites Web Design". He went on to state that he had owned the property at 8 Elm Grove for almost 4 years, had informed Nominet that Mr Johnston had moved from that address and had contacted him at the email address [email protected] about the previous communications from Nominet. Mr Wright stated that on 19 November 2006 Mr Johnston had replied to an email sent by Mr Wright to that email address, in the following terms, -

'Hi David,

Thanks for taking the time to email me. I'm sorry if you are getting hasstle [sic] with all my mail. Over the next week [I] will look into my 123reg domain name account and update it so all certificates are sent to my current address – Glasclune, Rosebank Road, Blairgowrie, Perthshire, PH10 7EB. In the meantime just bin all the domain name stuff from Nominet as they are only certificates [I] get sent periodically and I never use or need them anyway. If there is any other mail, however, I would appreciate it if you could forward it. … When we moved we did a 12 month royal mail transfer of all mail to our new address, so hopefully (apart from the [N]ominet stuff) you haven't been getting mail sent in error … Regards Ian Johnston.'

3. Mr Wright concluded his email by asking Nominet to 'follow this up to ensure Mr Johnston is given appropriate notice of DRS'. In subsequent email correspondence passing between Nominet and Mr Wright and ending on 17 March 2008, Nominet pointed out that under the DRS Procedure ("the Procedure") notice of a Complaint was properly served at the address held on the Register, that further correspondence in connection with the Complaint would be arriving at the 8 Elm Grove address, but that future communications concerning the Complaint would also be sent to the address in Blairgowrie and by email to the address identified by Mr Wright.
4. On 13 March 2008 an email attaching a copy of the unsigned complaint dated 11 March 2008 without attachments was sent to [email protected], [email protected] and [email protected]. The latter address is a contact address for the Domain Name recorded in the part of the Register not accessible to the general public. The contact name there recorded was Ian Johnston. The email to [email protected] (generated from [email protected]) was returned undelivered.
5. No Response was, or has since been, received by Nominet. By letter dated 10 April 2008 Nominet wrote to the Respondent at the registered address in Fife, giving notice that it was not possible to offer mediation for the dispute in view of the failure to respond to the Complaint and that if the Complainant were to pay the relevant fees by 24 April, Nominet would appoint an Expert to make a decision on the matter (as directed by paragraphs 5d and 21 of the Procedure). A letter in the same terms and again dated 10 April 2008 was sent to the Respondent at the Blairgowrie address, and copied as an attachment to an email sent to [email protected]. The Post Office subsequently returned to Nominet the letter sent to the Blairgowrie address, marked 'addressee has gone away'.
6. Meanwhile, by letter dated 13 March 2008 Nominet had written to the Complainant notifying her of certain procedural steps in connection with the Complaint. This letter also enclosed what has become known as a 'Chairman's Letter', from the Chairman of the DRS Expert Panel, Mr Tony Willoughby. That letter stated that, among other things -

'I have not read your submission, and nor has Nominet. However, I have asked Nominet to send this letter to any Complainant who has sent in a complaint the substance of which is under 15 lines long; and/or has no evidence attached to it. That does not mean that these complaints will fail. It simply means that it is less likely to contain the detail or evidence required to enable the Expert to give full weight to the case you are seeking to make. ……………… I would encourage you to look at your complaint to see if it sets out the required information, adequately supported by documentary evidence. …..'

7. The Complainant did not supplement her Complaint in the light of the Chairman's Letter. By letter dated 10 April 2008 Nominet notified the Complainant that in view of the Respondent's failure to respond to the Complaint, she could pay the necessary fees by 24 April 2008, to enable a decision to be made. The fees were received by Nominet on 14 April 2008.
8. On 15 April 2008 I was given notice of my selection as the Expert in the case. On 18 April 2008 I formally confirmed to Nominet that I knew of no reason why I could not properly accept the invitation to act as expert in the case and that I knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question my independence or impartiality. The date of my appointment was given as 21 April 2008.

4. Outstanding Procedural Matters

9. There is a procedural issue as to whether or not the Respondent has been properly served with the Complaint, consistently with the requirements of the Procedure. My findings on this issue are as follows. Paragraph 2a of the Procedure provides, -

'a We will send a complaint (see paragraph 3) to the Respondent by using, in our discretion, any of the following means:

i. sending the complaint by first class post, fax or email to the Respondent at the contact details shown as the registrant or other contacts in our Domain Name register database entry for the Domain Name in dispute;

ii. sending the complaint in electronic form (including attachments to the extent available in that form) by email to;

A. < postmaster@, the domain name in dispute >; or

B. If the Domain Name resolves to an active web page (other than a generic page which we conclude is maintained by an ISP for parking Domain Names), to any email address shown or email links on that web page so far as this is practicable; or

iii. sending the complaint to any addresses provided to us by the Complainant under paragraph 3(b)(ii) so far as this is practicable.'

10. The reference in paragraph 2a.iii. to 'paragraph 3(b)(iii)' must be a mistaken reference to paragraph 3c.iii., which refers to the 'Respondent's contact details which are known to the Complainant.' Subparagraph 3b.iii. (not 3(b)(iii)) makes provision for a lead Complainant where there is more than one Complainant and is not relevant.
11. Paragraph 2a.i. is satisfied by (First Class) postal service at the address on the Register. Even though the Respondent moved address, it is the address appearing on the Register that is material for the purposes of paragraph 2a.i. By the contract of registration between Nominet and the registrant, the latter is required to notify Nominet of any change of address. This enables the necessary change to be made to the Register. The Respondent failed to do this on 1 if not 2 occasions, in relation to his moves from the Fife and Blairgowrie addresses. Mr Wright's email of 14 March, acknowledging receipt of both letters, indicates that First Class post was used.
12. The letters of 13 March 2008 both state that '[a] full copy of the complaint (including evidence if any has been provided) is enclosed …'. Unlike some letters containing enclosures, there is no reference at the foot of either letter to 'encs.'. The file of papers sent to me as Expert did not include any copies of the enclosures. However, these facts do not justify the inference that a copy of the signed Complaint with annexes was not enclosed. The whole purpose of the letter is to notify the Respondent of the Complaint, as required by the Procedure. The letter on its own tells the addressee nothing of the content of the Complaint. Given the importance of this procedural step, it is unlikely that these documents were omitted.
13. The address to which the second copy of the letter of 13 March 2008 was sent was the postal address provided by the Complainant in the Complaint. For the same reasons, I find it likewise likely that this letter also enclosed a copy of the signed Complaint with annexes. Thus, subparagraph a.iii. of the Procedure is also satisfied by postal service at the Fife address. I also find that it to be inherently unlikely that neither of the 2 letters contained a copy of the Complaint and annexes.
14. I therefore find that the Complaint was properly served by postal service, pursuant to paragraphs 2a.i. and iii. Accordingly, it is not necessary to decide whether the Complaint was also validly served by email. In view of the fact that the Respondent has not served a Response and because the Complainant has paid the relevant fees as required by paragraph 21 of the Procedure, the appointment of an Expert to make a decision was appropriate, there being no exceptional circumstances.

5. The Facts

15. The facts in the case are extremely sparse. The Complainant is the owner of a guest house called Bootham Guest House and has traded under that name since 2002, carrying on a Bed & Breakfast business. The Respondent registered the Domain Name on 21 September 2002, the registration was renewed on 16 October 2006 and is due for renewal on 21 September 2008. The identity of the Respondent is recorded on the Register as 'insiteswebdesign' and its status as 'unknown'. The likelihood is that insiteswebdesign is, or at least was, a trading name of Mr Ian Johnston, formerly (but no longer of) of 8 Elm Grove, St Monans, Anstruther, Fife, Scotland KY10 2DA, the address recorded in the Register.

6. The Parties' Contentions

16. The substantive part of the Complaint is very brief and I shall repeat it in full. It states, -

'The Complainant has rights in the Domain Name because: It is the personal name of the Guest House of the Complainant, and has been since 2002 [.] It trades under the name Bootham Guest House and has done so since Mrs Wrigglesworth bought the property in 2002 [.] It has advertised using the name Bootham Guest House since 2002 and [sic] spent about £1000 on such advertisements this year. It provides Bed and Breakfast under the name Bootham Guest House as evidenced by the brochures that I will send to you. Currently the domain name is registered with incorrect name and address details. I have written, e-mailed and telephoned Mr Johnston who has moved and left no forwarding address. The registrant's address is false on your records. I will also send you copies of bills to prove that I own the property.'

Annexed to the hard copy of the Complaint are copies of, -

i. a demand dated 2 June 2006 for payment of Non-domestic Rates from York City Council;

ii. a letter dated 30 April 2007 from Beckingtons, a firm of Chartered Accountants, to the Complainant expressed to enclose copies of accounts for Mrs Wrigglesworth for the year ended 31 March 2007, together with a Tax Return for 2007 for her signature;

iii. an advertising brochure for the Bootham Guest House, which refers to a web-site at www.boothamguesthouse.co.uk;

iv. a business card for Emma and Scott Wrigglesworth referring to the same web-site and an email account at [email protected].

The Complainant seeks transfer of the Domain Name.

17. The Respondent has not responded. Included in the case papers are what appears to be the home page of the website operated at the Domain Name on 13 March 2008, a copy of the extract from the Register from a WHOIS search made on 13 March 2008, a copy of those details on the Register which are not publicly available, and copy correspondence concerning service of the Complaint and succeeding procedural steps.

7. Discussion and findings

General

18. According to paragraph 2 of the Nominet Dispute Resolution Policy ("the Policy"), in order to succeed in this Complaint the Complainant has to 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.'

These matters must be proved, notwithstanding the Respondent's failure to respond to the Complaint. By paragraph 15c of the Procedure, the effect of this default is to require the Expert to draw such inferences (if any) as he considers to be appropriate, there being no exceptional circumstances.

Does the Complainant have Rights in the Domain Name?

19. By paragraph 1 of the Policy, 'Rights' includes, but is not limited to, rights enforceable under English law. However, a Complainant will be unable to rely on a name or term, which is wholly descriptive of the Complainant's business. The word 'boothamguesthouse' is not wholly descriptive. It is descriptive to a degree, but no more.
20. I find that the Complainant has since 2002 owned a property known as and situated at Bootham Guest House, 56 Bootham Crescent, from which she has traded as Bootham Guest House, carrying on a Bed & Breakfast business. The business has been advertised under that name through brochures. The Domain Name resolves, as I have found by accessing it, to a web-site advertising Bootham Guest House, run by Emma and Scott Wrigglesworth. The home page of the web-site is in the same form as it appeared in the copy web-page for 13 March 2008.
21. On the evidence before me, I find that the name 'Bootham Guest House' refers and would be understood to refer to the Bed & Breakfast business carried on by the Complainant in York.
22. I find that the Complainant has unregistered rights in the name 'Bootham Guest House' that would be enforceable in English law by an action for passing off and therefore find that the Complainant has rights in a name, namely 'Bootham Guest House' similar to the Domain Name.

Abusive Registration

23. 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.'

Paragraph 3a. of the Policy provides a non-exhaustive list of factors, which may be evidence that a domain name is an Abusive Registration. These include, so far as presently relevant, the following -

' …………………………..

iv. It is independently verified that the registrant has given false contact details to us; or

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.'

24. The only complaint of Abusive Registration that can be found in the Complaint relates to the contact details provided by the Respondent. However, this is not a case of a registrant failing to provide accurate contact details for the Register, but of failing to keep those details up-to-date. As indicated, failure to provide an up-to-date address to Nominet is a breach of the contract between it and the registrant. However, this does not amount to Abusive Registration. Paragraph 3a.iv. of the Policy is directed at registrants who typically provide false contact details in order to disguise their whereabouts with a view to retaining domain names registered or used in obvious contravention of the Rights of others.
25. From the available facts, it appears that this may well be a case where the Respondent has registered the Domain Name for the Complainant as part of web-site design services provided by 'insiteswebdesign'. The present use of the Domain Name (and no doubt at least some past use) is not the Respondent's, but the Complainant's. However, is one thereby entitled to conclude on the balance of probabilities that the circumstances specified paragraph 3a.v. are made out?
26. It is striking that the Complaint does not make an allegation relating to the circumstances set out in paragraph 3a.v.. Even though the Complainant is not legally represented, one would have expected the Complaint to have contained an allegation of this sort, had the circumstances justified it. It is an obvious matter of complaint if one asks a designer to register a domain name for one's business and the designer refuses to hand over the registration despite payment. Moreover, the facts relevant to such a complaint would be wholly within the Complainant's knowledge.
27. What else do we know about the facts of the case, and what inferences may be drawn from them? The extract from the Register shows that the Domain Name was registered on 21 September 2002. This is consistent with the Complainant's purchase of the property in 2002 and her running the Bed & Breakfast business from that address since 2002.
28. The extract from the Register shows that the registration fee for the Domain Name was last paid on or not long before, 16 October 2006. There is no evidence as to the identity of the paying party. The Domain Name is due to be renewed on 21 September 2008.
29. The email correspondence between Nominet and Mr David Wright, referred to in section 3 above, indicates that in November 2006 the Respondent still had an active interest in the Domain Name. However, his subsequent failure to ensure Nominet was informed of his new address is a matter to be borne in mind. What, if any, inference can be drawn from the failure to file a Response? Did the Complaint come to the attention of the Respondent? I am unable to draw that conclusion on the evidence. The fact that the emails sent to [email protected] have not been returned undelivered does not justify the inference on all the evidence that they have been read. However, looking at all the circumstances, I am prepared to infer that the Respondent has shown no great interest in the Domain Name. The fact that the returned email to [email protected] was generated from [email protected] suggests that the Respondent may have linked the two email addresses, but no clear or at least helpful conclusions can be drawn from this, if it be the case.
30. Notwithstanding the various clues that are provided by the available material, I find that it is not possible to conclude that the Registration is Abusive. It is necessary to emphasise that it is for the Complainant to establish her case on the balance of probabilities. As indicated, she has not established Abusive Registration under paragraph 3a.iv. of the Policy. She has not expressly or by implication raised a case under paragraph 3a.v. In any event, there is no evidence of payment for the registration by the Complainant, as required by paragraph 3a.v.B. of the Policy. Further, had paragraph 3a.v. been a ground of complaint, the likelihood is that such a complaint would have been specifically made, for the reasons given above. Finally, the available evidence viewed as a whole does not justify a finding of facts consistent with paragraph 3a.v.
31. The Complainant alleges that the Domain Name is also registered under the wrong name, as well as with the incorrect address. In substance, however, paragraph 3a.v. of the Policy is directed at just such a case. Once again, the evidence does not establish to the required evidential standard that a Registration is Abusive in relation to the incorrect name or on any possible wider ground.
32. I bear in mind that the circumstances listed paragraph 3a. of the Policy are not necessarily the only circumstances in which continued retention of a Domain Name may be Abusive and also that the Expert is at liberty to make a finding of abuse if abuse is apparent from the facts found. I also take into account the fact that the Complainant has not chosen to amplify her Complaint, notwithstanding the invitation to do so in the Chairman's Letter. All in all, bearing in mind the facts as I have found them to be, I am unable to find that there has been Abusive Registration in this case.

8. Decision

33. In the light of the findings made above, namely that the Complainant has failed to prove on the balance of probabilities that the Domain Name is an Abusive Registration within the definition of that term in paragraph 1 of the Policy, the Expert refuses the request for transfer of the name.

Stephen Bate 24 April 2008