Nominet UK Dispute Resolution Service
DRS 02282
Ours Travel –v- Richard James
Decision of Independent Expert

1.	Parties:
Complainant:	Ours Travel
Great Britain
Respondent:	Richard James
Great Britain

2.	Disputed Domain Name:
ourstravel.co.uk
3.	Procedural Background
The Complaint was received in full by Nominet on 4 January 2005.  The Complaint was validated on 7 January 2005 and was sent by Nominet to the Respondent on that date.  Nominet informed the Respondent that it had 15 working days, i.e until 28 January 2005, to respond to the Complaint.
By 28 January 2005, no Response having been received from the Respondent, Nominet wrote to the Complainant confirming that no Response had been filed and inviting the Complainant to request an Expert Decision.
The Complainant duly paid the fee within the relevant time limit and the matter was duly referred to me, Simon Chapman, (“the Expert”) for an Expert Decision following confirmation to Nominet that I knew of no reason why I could not properly accept the invitation to act in this case and of no matters which ought to be drawn to the attention of the parties, which might appear to call into question my independence and/or impartiality.
4.	Outstanding Formal/Procedural Issues
The Respondent has not submitted a response to the Complaint.  From the papers that have been submitted by Nominet to me it is apparent that efforts have been made to send the Complaint to the Respondent by post and e-mail to the contact details held on Nominet’s register.  I have noticed that the letter sent to the Respondent has been returned by the Royal Mail, with a notice saying that “the addressee has gone away” and “DOES NOT LIVE HERE”.  The email, however, does not appear to have been returned.  I think that it is therefore reasonable to conclude that the Respondent has been served with the Complaint.  
When registering a UK domain name applicants agree to be bound by Nominet’s Terms and Conditions.  Clauses 7.2 and 7.3 of those terms and conditions provides that:-
“7.2	any identity and contact information you (either yourself or through your agent) send us must be correct;
7.3             you will send us the information needed under condition 7.2 as soon as possible, through your agent if possible, and you will keep them up to date”
In addition, Paragraph 2(e) of the Procedure states that:-
“Except as otherwise provided in this Procedure or as otherwise decided by us or if appointed, the Expert, all communications provided for under this Procedure shall be deemed to have been received:
i.             if sent by facsimile, on the date transmitted; or
ii.            if sent by first class post, on the second Day after posting; or 
iii.          if sent via the Internet, on the date that the communication was transmitted;
iv.         	and, unless otherwise provided in this Procedure, the time periods provided for under the Policy and this Procedure shall be calculated accordingly.”
In light of the above it is my view that Nominet has done everything that it is obliged to do to bring the Complaint to the attention of the Respondent.
I now move on to consider the consequences of the Respondent not submitting a response.
The procedure envisages just such a situation and provides in Paragraph 15 that:-
“c.	If, in exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure or any request by us or the Expert, the Expert will draw such inferences from the Party's non compliance as he or she considers appropriate.”
I am not aware of any exceptional circumstances to explain why the Respondent should not have responded to the Complaint, and as such believe it appropriate to proceed to a Decision. 
I will draw such inferences from the Respondent’s failure to respond as I think appropriate, but must bare in mind that there may be a number of reasons why a respondent might fail to serve a response, for example that they have nothing useful to say, or that the Complaint has not in fact come to his attention.
5.	The Facts
Ours Travel (“Ours Travel”), the Complainant, is a travel agency based in London specialised in providing travel services to the far East.  It trades from shop premises at 301 Euston Road, London NW1 3AD.  
The Complainant asserts that it has been trading under the name Ours Travel since 1996 and has been using the domain name ourstravel.com since 1998.  The Complainant’s website at ourstravel.com shows the Complainant’s shop facia depicting “OURS TRAVEL” in large gold coloured capital letters.  The website claims that Ours Travel has become the largest travel agent specialising in travel to far-eastern countries.  When users enter this website, they are asked whether they wish to view it in English or Chinese.  
From a Companies House search, it appears that the Complainant has operated through UK registered company Ours Travel Services Limited (company number 05011544) since its incorporation on 9 January 2004.  From a trade mark registry search, it appears that the Complainant has no registered trade marks.
On 4 September 2004 the Respondent registered the Domain Name, ourstravel.co.uk. The Domain Name is presently used by the Respondent, a former customer of the Complainant, as a critisism site about the Complainant.  The Domain Name resolves to a home page emblazoned with “OURSTRAVEL” in large capital letters.  The words: “Poor Service Travel Agent in London” appear in much smaller font below.  To enter the website, the user must click to view it in either English or Chinese.
6.	The Parties Contentions
	Complainant
The Complainant contends that the Domain Name is identical to a name or mark in which it has Rights, namely its unregistered mark OURSTRAVEL.  
The Complainant asserts that the Domain Name in the hands of the Respondent is an Abusive Registration.  The Complainant asserts that the Respondent is using the Domain Name in a manner which takes unfair advantage of or is unfairly detrimental to the Rights of Ours Travel.  The Complainant asserts that the Domain Name has been used by the Respondent “to air his discontent”.  The Complainant also asserts that: “…as well as giving a completely one sided portrayal of an incident which took place in April of this year, a large number of untruths have been added to further twist the story and discredit our company. The Respondent has also, since, been in contact with ourselves and another party involved requesting that our agency be further “punished”.” 
The Complainant has requested that the Domain Name be cancelled. 
Respondent
As stated above, the Respondent has not filed a Response.
7.	Discussions and Findings
	General
To succeed in this Complaint, the Complainant must, in accordance with paragraph 2 of the Policy, prove to the Expert on the balance of probabilities that:
(i)	it has Rights (as defined in paragraph 1 of the Policy) in respect of the name or mark 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).
Burden
Despite the absence of a response from the Respondent, the Complainant must make out its case to the Expert on a balance of probabilities.  It is still incumbent on the Expert to assess the admissibility, relevance, materiality and weight of the evidence as presented in the Complaint (see Paragraph 12b of the Procedure).
Complainant’s Rights
The Complainant has been trading as OURSTRAVEL since 1996 and using the domain name Ourstravel.com since 1998.  The Complainant has also asserted that it believes it has a “reasonable claim” upon the name OURSTRAVEL and this has not been contradicted by the Respondent.  
The definition of “Rights” within the Policy excludes the protection of names or terms which are wholly descriptive of the Complainant’s business.  In my view this exception does not apply in the present case.  The word “wholly” makes the restriction very narrow in application. “Ours Travel” is not descriptive, being an unusual juxtaposition of two otherwise descriptive words which does not fully describe the business of the Complainant. 
The first (.uk) and second (.co) levels of the Domain Name should be discounted for the purposes of comparison as being of a generic nature.  For the reasons set out above, I find that the Complainant has established that it has Rights in respect of a name or mark which is identical to the Domain Name.
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 Complainants Rights.
A non-exhaustive list of factors, which may be evidence that the Domain Name is an Abusive Registration, is set out in paragraph 3 of the Policy.  The Complaint does not address any of these specific grounds, but implies that the Respondent’s registration of the Domain Name was primarily for the purpose of unfairly disrupting the business of the Complainant and that the Respondent’s use of the Domain Name is unfairly detrimental to the Complainant’s Rights.  The potentially relevant “factors” in this case are, therefore, as follows:
(i)	Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name;
(C)	primarily for the purpose of unfairly disrupting the business of the Complainant. 
The Domain Name, being identical to the Complainant’s name, is intended to refer to the Complainant.  In this case, as in Nominet decision Pharmacia AB and Steve Wagstaff (DRS 00048) and Nominet Appeal decision Hanna-Barbera Productions, Inc v Graeme Hay (DRS 00389) (the “Scooby-Doo case”), the Domain Name does not of itself indicate that it would lead to a tribute or criticism site as would, for example, a “[company]sucks.org.uk” domain name.  For a tribute or criticism site, it is not necessary to select the precise name of the person to whom one wishes to pay tribute or criticise.  Taking the Domain Name in these circumstances arguably amounts to impersonation of the owner of the name, and impersonation can rarely be fair.  A significant proportion of internet users looking for the Complainant’s website will likely visit the Respondent’s site in the expectation that the site is the Complainant’s site (sometimes referred to as ‘initial interest confusion’).  
I agree with the statement made by Expert in the Pharmacia case that: “The nature and use of the Complainant’s mark must at all times be clear and should not create the impression of a connection or affiliation with the Complainant, even momentarily”.  In this case, the Respondent has not only chosen a domain name identical to the Complainant’s name, it is also using the Complainant’s name in large capital letters, similar to how the Complainant’s name appears on its shop facia, and, like the Complainant’s website, offers Internet users the opportunity to view the site in English or Chinese.  The words “Poor Service Travel Agent in London”, which appear underneath in small font, may not cause the visitor to realise immediately on entering the Respondent’s site that it has not in fact reached the Complainant’s website.  
The Respondent’s choice of domain name identical to the Complainant’s name, and the use made of the Complainant’s name on the Respondent’s site are likely to cause Internet users to be given a false impression that the Respondent’s website is connected or affiliated with the Complainant.  When such users realise from the content of the site that this is not in fact the case, they may then be encouraged by the contents of the Respondent’s site to refrain from using the Complainant’s services.  The site’s explanation that it “stands for consumers’ rights” is ineffective in undoing the unfair advantage gained in using the Complainant’s name.  The reasoning of the Panel in the Scooby-Doo case also applies in this case: by the time the disclaimer is seen, the Respondent will have achieved an opportunity that in most cases he would not otherwise have had.
In the absence of any valid explanation from the Respondent I cannot draw the inference that the Domain Name was registered by the Respondent primarily for the purpose of unfairly disrupting the business of the Complainant.  However, it has been used to unfairly disrupt the Complainant’s business whatever the Respondent’s intention when he registered it.  As paragraph 3 is a non exhaustive list of factors, I find that this use is evidence of this being an Abusive Registration.
A non-exhaustive list of factors, which may be evidence that the Domain Name is not an Abusive Registration, is set out in paragraph 4 of the Policy.  The potentially relevant “factors” in this case are as follows:
(a) (i) 	Before being aware of the Complainant’s cause for complaint (not necessarily the ‘Complaint’ under the DRS), the Respondent has:
   	(C) 	made legitimate non-commercial or fair use of the Domain Name.
(b)	Fair use may include sites operated solely in tribute or in criticism of a person or business.
The website to which the Domain Name resolves is clearly being used by the Respondent solely as a criticism site.  Fair use “may”, but will not always, include such sites.  As I have determined (for the reasons given above) that the Respondent’s use is not fair, that the site is used solely as a criticism site is not evidence that such use is not an Abusive Registration.
As the Respondent has chosen not to file a Response, and in the absence of a credible explanation for its selection and use of the Domain Name, I must consider, on balance, whether the registration and/or use of the Domain Name is Abusive.  In my opinion, for the reasons given above, it is an Abusive Registration within the definition of that term in paragraph 1.ii of the Policy on the basis that it has been used in a manner which was taken unfair advantage of or was unfairly detrimental to the Complainant’s Rights. 
For some considerable time before the Respondent registered the Domain Name, a name identical to it has been used by the Complainant.  The Complainant has, in effect, been denied the opportunity to reflect its name in an identical “.co.uk” domain name.  In  the absence of any credible explanation from the Respondent, I am of the view that the selection of a domain name identical to the name in which the Complainant has invested time and money building its reputation, was intended to unfairly disrupt the Complainant’s business.
8.	Decision
For the reasons set out above, I find that the Complainant has Rights in respect of a name or mark which is similar or identical to the Domain Name, and that the Domain Name, in the hands of the Respondent, is an Abusive Registration.  
The Complainant has asked that the Domain Name be cancelled.  However, I am mindful of the fact that ordering cancellation would allow the Respondent and others the opportunity to re-register the Domain Name following cancellation of the Respondent’s present registration.  Paragraph 16(a) of the Procedure allows me to decide the Complaint on the basis of the Parties’ submissions, the Policy and the Procedure.  I therefore direct that the Domain Name, at the Complainant’s election (to be notified to Nominet within 7 days of the Complainant receiving this Decision), shall either be cancelled or transferred to the Complainant.

Simon Chapman							28 February 2005