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Nominet UK Dispute Resolution Service |
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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Black Knights Parachute Centre Ltd v Payconet [2008] DRS 5839 (4 August 2008) URL: http://www.bailii.org/uk/cases/DRS/2008/5839.html Cite as: [2008] DRS 5839 |
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Nominet UK Dispute Resolution Service
DRS Number 05839
Black Knights Parachute Centre Ltd -v- Payconet
Decision of Independent Expert
Complainant Type: Business
Country: GB
Respondent: Payconet
Country: GB
bkpc.co.uk ('the Domain Name')
The complaint was lodged electronically with Nominet on 25 June 2008 and hard copy was received on 1 July 2008. The Respondent made no reply to Nominet's correspondence, and the Complainant decided to proceed to an expert decision.
The fee for an expert decision was received on 25 July 2008. On the same day Claire Milne was selected to act as expert in the case, having confirmed that she knew of no reason why she could not properly do so; and 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. Her date of appointment was 1 August 2008.
Since the Complainant's inability to contact the Respondent is at the heart of this case, I have paid particular attention to Nominet's attempts to contact the Respondent. From the papers supplied to me, it appears that Nominet's correspondence was sent using post, fax and email to Payconet, at the address in Nominet's registration record, that is, care of Entanet. Entanet is a functioning company at the address used, and there is no reason to expect that either post or fax would not have been received, although email sent to [email protected] proved undeliverable. No evidence has been provided relating to any contact between Entanet and Payconet.
The following account is based on information supplied by the Complainant and supported by evidence.
1. Black Knights Parachute Centre (BKPC) Limited is a small business providing skydiving and parachute training and facilities. It has no IT staff and relies on the voluntary support of its membership to help operate its IT systems.
2. In 1999 BKPC Ltd wished to have email and a basic web site. Mr Mike Sowden, a skydiver, had experience in internet businesses and offered to facilitate an internet presence on a complimentary and voluntary basis.
3. Mr Sowden was owner / director of "Payconet" Payco UK Ltd, renamed to Touch Point Media Ltd on 10/02/2004 and dissolved on 19/02/08.
4. Mr Sowden registered bkpc.co.uk on behalf of Black Knights Parachute Centre Limited in 1999 through Payco's then ISP (Entanet).
5. Since the initial registration in 1999 the bkpc.co.uk domain has been continuously used and promoted by BKPC Ltd as its sole internet domain for email and for their web site.
6. Until November 2007 BKPC Ltd's web site / email system worked to its satisfaction, but at that time it was decided to upgrade these facilities. BKPC staff tried to contact Mr Sowden about this using various email addresses, telephone numbers and postal addresses, but without success.
7. The bkpc.co.uk domain is still active, is well known in the UK skydiving community and is used on a wide range of advertising materials.
6. The Parties' Contentions
Complainant's Contentions
The Complainant wishes to gain control of the Domain Name in order to upgrade its web site. It states that Mr Sowden has always been a valued advocate of the Black Knights Parachute Centre, and that there are no outstanding disputes between BKPC and Mr Sowden or his company. The Complainant believes that the Respondent would have no objection to the domain transfer.
Respondent's Contentions
There has been no response.
The Nominet Dispute Resolution Service Policy ('the Policy') paragraph 2 requires that for a complaint to succeed the Complainant must demonstrate to the Expert, 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.
Rights
The Policy paragraph 1 states
Rights include, but are not limited to, rights enforceable under English law. However, a Complainant will be unable to rely on rights in a name or term that is wholly descriptive of the Complainant's business.
BKPC is plainly an acronym for Black Knights Parachute Centre Ltd, a registered company. The Complainant has provided ample evidence that this company provides skydiving services in the North West of England, and uses the website at bkpc.co.uk to do so. I regard this as sufficient demonstration of Rights in the name.
Abusive Registration
The Policy paragraph 1 states that an Abusive Registration is a domain name that:
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.
The Policy paragraph 3 (a) (v) provides as one factor which may be evidence that the Domain Name is an Abusive Registration:
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 the renewal of the domain name registration.
This is clearly relevant to the current case, although it is not entirely applicable. Certainly, the domain name was registered as a result of a relationship between the Complainant and the Respondent, and the Complainant has been using the registration exclusively. The position relating to payment and especially to renewal is less clear: the Complaint states that Mr Sowden initially registered the name "on a complimentary and voluntary basis" and the implication is that the Complainant has not paid the Respondent for his services at any time.
I suppose that Mr Sowden regarded BKPC as a worthy undertaking that he wanted to support in kind. Even if he was not paid, he may have been rewarded for his efforts by some kind of membership privileges; or maybe his reward was just personal satisfaction. Either way, I feel that BKPC's not paying for the name should not invalidate the factor as a way of showing Abusive Registration – although in this case, unusually, any abuse appears to lie only in neglect and failure to stay in touch. I note that the name has continued to be renewed, which shows that neglect has not been total, though bkpc.co.uk may well have been only one among several domain names which Mr Sowden has routinely renewed.
The evidence shows that BKPC tried hard to contact Mr Sowden during February 2008, using various contact details that they found for him online (he had not been skydiving with them for four years). He is evidently a man of many interests, including providing an interactive voting system used by the W H Smith "People's Choice" Book Awards, and running the campaign to refund penalty bank charges to consumers.
More recently, Nominet tried to contact him about the complaint, through his ISP Entanet. Since Entanet received multiple communications about the complaint, I expect that they also tried to contact Mr Sowden, but to no effect.
Nothing in the case papers suggests why Mr Sowden has proved so elusive. He could be taking an extended break from email, or unwell. I think it most likely, however, that he is simply too busy to attend to every detail of all his many undertakings, and that responding to enquiries about bkpc.co.uk was one detail that got overlooked.
I conclude that on the balance of probabilities the registration was abusive through neglect, an instance of abusive use (Policy 1 (ii)).
The Complaint succeeds. I direct a transfer of the name to the Complainant, as requested.
Claire Milne
4 August 2008
