Evolution Voice and Data plc -v- Leigh Evans

Nominet UK Dispute Resolution Service

DRS 03432

Evolution Voice and Data plc -v- Leigh Evans

Decision of Independent Expert

1.	Parties:

Complainant:	Evolution Voice and Data plc

Respondent:	Mr Leigh Evans

2.	Domain Name:

evd-uk.co.uk ("the Domain Name")

3.	Procedural Background:

The Complaint was received by Nominet on 15 February 2006.  Nominet validated the Complaint and sent a copy to the Respondent.

No Response was received by Nominet.

On 16 March 2006 the Complainant paid Nominet the required fee for a decision of an Expert pursuant to the Nominet UK Dispute Resolution Service Policy ("the Policy").

Nominet invited the undersigned, Jason Rawkins ("the Expert"), to provide a decision on this case and duly appointed the undersigned as the Expert with effect from 23 March 2006.

4.	The Facts:

In April 2003 the Complainant entered into an arrangement with the Respondent's business, which included the registration of the Domain Name and it being directed to the Complainant's existing website at www.evd-uk.com.

Pursuant to that arrangement, the Domain Name was registered by the Respondent's business, in the Respondent's name, on 19 April 2003.

In May 2003 the Respondent invoiced the Complainant for the registration of the Domain Name.

5.	The Parties' Contentions:

Complainant:

A summary of the Complainant's submissions is as follows:

1.	The Complainant has rights in a name which is identical or similar to the Domain Name:

(1)	The Complainant's name is Evolution Voice and Data plc.

(2)	Before the Domain Name was registered, the Complainant already owned the domain name evd-uk.com and operated a website at www.evd-uk.com, this being evidenced by the reference in the Respondent's May 2003 invoice to registering evd-uk.co.uk (the Domain Name) and "pointing it at www.evd-uk.com".

2.	The Domain Name is an Abusive Registration in the hands of the Respondent:

	The Complainant relies on the facts set out in section 4 above.  In addition:

(1)	The Complainant paid the Respondent's May 2003 invoice (for registration of the Domain Name).

(2)	The agreement between the Complainant and the Respondent was that the Respondent would have administrative rights over the Domain Name whilst the parties' contractual relationship continued, but not ownership of the Domain Name.

(3)	In any case, the contractual relationship between the parties was terminated in November 2004.

(4)	In November 2005 the Complainant approached an alternative supplier to carry out some maintenance and design work on its website.  At this point the Complainant found out that the Domain Name was not registered in its name but in the name of the Respondent.

(5)	The Complainant therefore contacted the Respondent to ask him to transfer the Domain Name to the Complainant and to provide the Complainant with the access password for the related website.  This request was made on a number of occasions over the next three months but the Complainant has received no response from the Respondent.

Respondent:

The Respondent did not file a Response.
6.	Discussion and Findings:

General
Paragraph 2 of the Policy provides that, to be successful, the Complainant must prove on the balance of probabilities that:
i	it 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 (as defined in paragraph 1 of the Policy).

Complainant's Rights

The Complainant's name is Evolution Voice and Data plc.  The Complainant has not put forward any evidence to suggest that it has used the trading acronym "EVD" on headed paper, business brochures or the like.  However, it is apparent from the May 2003 invoice that, prior to the registration of the Domain Name, the Complainant had been operating a website under the "evd-uk" name, that is www.evd-uk.com.  I am prepared to infer on the balance of probabilities that this will have led some customers and potential customers of the Complainant to associate the "evd" and/or "evd-uk" shorthand with the Complainant and that the Complainant therefore developed a degree of goodwill in those shorthands.

As has been stated in other Nominet decisions, paragraph 2i of the Policy (Rights) is not intended to be a high hurdle.  I am therefore prepared to find that the Complainant has Rights in "evd" and "evd-uk" shorthands.  These are in one case identical to the Domain Name (excluding the .co.uk suffix) and in the other clearly similar.  I accordingly find that the Complainant has satisfied what is required under paragraph 2 of the Policy.

Abusive Registration

Paragraph 1 of the Policy defines an "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 3 of the Policy sets out a non-exhaustive list of factors which may be evidence that a Domain Name is an Abusive Registration.  The factor of relevance here is set out in paragraph 3av:

"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."

In this case, the Domain Name was clearly registered as a result of a relationship between the Complainant and the Respondent.  The Domain Name was, according to the May 2003 invoice, registered in order to be pointed at the Complainant's existing website.  In addition, the website at www.evd-uk.co.uk does set out information about the Complainant and uses the same logo as appears on the Complainant's headed paper (an example of which was appended to the Complaint).  In the light of these facts, I find on the balance of probabilities that the Complainant has been using the Domain Name registration exclusively.

The final element of paragraph 3av requires the Complainant to have paid for the registration.  The Complainant appends to its Complaint the relevant invoice of the Respondent (the May 2003 invoice) and states that it paid that invoice.  The Complainant does not, however, provide any evidence to corroborate that statement.  It would have been preferable for the Complainant to have done so.  Nevertheless, since the Respondent has not sought to challenge the Complainant's case by filing a Response, I am prepared to find on the balance of probabilities that the Complainant did pay the invoice.

As a consequence, the factor at paragraph 3av of the Policy does apply.  As the Policy makes clear, this may be evidence of an Abusive Registration.  Looking at this matter generally, it seems to me that the Respondent's registration of the Domain Name in his own name, rather than that of the Complainant, was not what one would reasonably expect to happen.  Given that the Domain Name was being paid for by the Complainant, the Complainant could reasonably have expected it to be registered in its name.  By not doing so, and by thereby removing full control from the Complainant, in my view the registration was unfairly detrimental to the Complainant's Rights.  

In addition, the Complainant states that the Respondent has subsequently not responded to the Complainant's requests for the Domain Name to be transferred to it now that the relationship between it and the Respondent has come to an end.  The Complainant has not provided any evidence of its requests to the Respondent.  It would again have been preferable for the Complainant to have done so.  However, given that the Respondent has not challenged this by filing a Response, and given that it accords with common sense that a company in the Complainant's position would make such request of the Respondent before going to the trouble of filing a Complaint with Nominet, I am willing to find on the balance of probabilities that what the Complainant says is true.  The Complainant's inability to regain control of the Domain Name is preventing it from carrying out maintenance and design work on its website.  Such use of the Domain Name by the Respondent is clearly unfairly detrimental to the Complainant's Rights.

7.	Decision:

Having found that the Complainant has rights in respect of a name which is identical or similar 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 evd-uk.co.uk be transferred to the Complainant.

Jason Rawkins
29 March 2006