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	Nominet UK Dispute Resolution Service
You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Just Bathrooms v Moonstone [2007] DRS 4759 (20 July 2007) URL: http://www.bailii.org/uk/cases/DRS/2007/4759.html Cite as: [2007] DRS 4759

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Nominet UK Dispute Resolution Service

DRS Number 04759

Just Bathrooms -v- Moonstone

Decision of Independent Expert

1. Parties

Complainant Type: Business

Complainant: Just Bathrooms

Country: GB

Respondent: Moonstone

Respondent name: Mr Roydon Woodford

Country: GB

2. Domain Name

justbathrooms.co.uk ('the Domain Name')

3. Procedural Background

The Complaint was lodged electronically and in hard copy with Nominet on 5 June 2007.

The Respondent was duly notified of the Complaint by post to two postal addresses in Cambridgeshire, email to two email addresses and fax. A letter to the postal address shown in the complaint was returned marked as undeliverable because the addressee (Moonstone) was unknown at that address, and the email to [email protected] also proved undeliverable. Nominet received no response to its correspondence.

Accordingly, on 29 June 2007, the Complainant was invited to pay the fee for an expert decision. The fee was received on 9 July 2007. On 11 July 2007 Claire Milne was appointed 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.

4. Outstanding Formal/Procedural Issues (if any)

None

5. The Facts

From the Complaint and supporting evidence, I take the following uncontested points as fact.

On 14 December 1984 the private company Just Bathrooms Limited was incorporated, with a registered office in Cambridge.

The Respondent, Mr Roydon Woodford, is the son-in-law of Mr Norman King, the founder and until recently the proprietor of Just Bathrooms. Mr Woodford's business interests include internet service provision, and in particular an ISP called Zayga, trading as Zone Holdings (a Nominet tag holder). On 20 May 1997 Mr Woodford registered the domain name justbathrooms.co.uk on Mr King's behalf.

The domain name has been used exclusively by Just Bathrooms since it was first registered. Since before 2001, Mr Woodford has hosted a website for Just Bathrooms at www.justbathrooms.co.uk. The registration has been renewed whenever necessary, most recently on 20 May 2007. The domain name has been used routinely as part of the company's marketing, incorporated into advertising material, stationery, painted on vehicles and so on.

In December 2006 Mr King sold the company to the Complainant, Mr Dean Fordham, as a going concern. The intention was that the sale should include the website and the domain name justbathrooms.co.uk. However, the Respondent has not completed the relevant part of the Domain Name Transfer form which the Complainant sent to him.

Within two weeks of the company transfer, all incoming emails to the company ceased and the Complainant was unable to access the website to make changes to it. Mr King has both orally and in writing requested Mr Woodford to transfer the domain name to the company's new owner, but Mr Woodford has not done so.

At the date of the complaint the URL www.justbathrooms.co.uk resolved to a screen saying "server not found". Today I get a page of links to cached versions of the old website, which are themselves inaccessible.

6. The Parties' Contentions

There has been no response. The Complainant's contentions follow.

The Complainant has bought the company Just Bathrooms, complete with all its assets, including the website and the domain name.

The previous proprietor, Mr King, used the domain name exclusively and continuously since 1997 as an integral part of the Just Bathrooms business.

The new proprietor (the Complainant) has already spent over £11,000 on new advertising for the company, including the domain name.

The Respondent has persistently refused to complete the paperwork needed to transfer the domain name to the Complainant, despite entreaties from the Complainant, Mr King and Mr King's solicitors.

The Complainant has commissioned Xanthos Ltd to design a new website for the company. The Respondent has suggested to the Complainant that he (Mr Woodford) should continue to maintain the existing website, unless made "an offer I cannot refuse" to transfer the name. The Respondent also offered to "point the domain name at the Complainant's web address". The Complainant has turned down these suggestions.

The effect of the Respondent's behaviour is to disrupt the Complainant's business by blocking the Complainant from receiving incoming emails to the advertised email address [email protected] or updating the website.

The Respondent's activity breaches the normal terms and conditions applicable to a Nominet Registrar, including failing to act after getting a specific request to rectify a problem.

7. Discussion and Findings:

I am sorry that there has been no response, and so I have had no opportunity to hear Mr Woodford's side of this story. However, I do not doubt that he is aware of this proceeding (three of the five methods used to contact him appear to have worked) so I must assume that he has chosen not to respond. In the circumstances, I have to assess the evidence before me on the balance of probabilities. I find the Complainant's evidence in the case clear, consistent and plausible, so as it is also unchallenged, on the balance of probabilities I accept it as true.

The Nominet Dispute Resolution Service Policy ('the Policy') paragraph 2 requires that for a complaint to succeed the Complainant must demonstrate, on the balance of probabilities, that both:

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.

Complainant's Rights

The previous proprietor registered the company name Just Bathrooms in 1984 and traded under that name continuously until he sold the company, complete with name and all other assets. Apart from the suffix and a missing space, the domain name justbathrooms.co.uk is identical to the company name and has been used exclusively by that company since it was registered. Plainly, the Complainant has the Rights required by 2(i) of the Policy.

Abusive Registration

In Nominet's Policy, an Abusive Registration is one 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.

In this case, the original registration was not abusive – it was in accordance with the then Rights holder's intentions - so we are looking at the second limb, subsequent usage.

Paragraph 3 (a) of the Policy is a non-exhaustive list of factors which may be evidence of abusive registration. The last of these is highly relevant to this case:

3(a)(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.

This point was added to the list when Nominet's policy was revised in 2004, because there had been several similar cases where a previous business relationship with a domain name registrant had led to problems for the rights holder. It was intended that lack of co-operation by the registrant should support a finding of abusive registration.

If Mr King had been the Complainant in this case, then these circumstances would have applied exactly. There were two relationships between the parties, both family and business. Evidence has been supplied showing a series of invoices from Mr Woodford to Mr King for website maintenance and domain name registration. These invoices must have been paid or the business relationship would have ended.

In the current case, the new proprietor and the old one are acting in unison, so I feel that this factor does apply even though Mr King is not the Complainant.

In this case, the Respondent's behaviour is also having the effect of disrupting the Complainant's business and blocking his access to the name, which are both certainly detrimental to his business. Mr Woodford has put forward no justification for this behaviour, which supports the view that it is unfair.

Therefore I find the registration abusive by virtue of its recent usage.

The Complainant has mentioned the terms of a Nominet Registrar agreement. I am unclear that these are relevant, as no evidence has been supplied about the terms on which the parties agreed that Mr Woodford would supply services to Just Bathrooms.

8. Decision

The Complaint shows that the Complainant has Rights in a name similar to the domain name and that the registration was abusive. The Complaint therefore succeeds and the domain name should be transferred to the Complainant as requested.

Claire Milne

20 July 2007