Dawkes Music v Musical Instrument Megastore Limited  [2005] DRS 02543 (31 May 2005)

 Dawkes Music –v- Musical Instrument Megastore Limited

Nominet UK Dispute Resolution Service

DRS 02543

Dawkes Music and  Musical Instrument Megastore Limited

Decision of Independent Expert

1.	PARTIES:

	Complainant:			Dawkes Music
					
	Respondent:			Musical Instrument Megastore Limited
					SN9 5PZ

2.	DOMAIN NAME:

	dawkesmusic.co.uk (“the Domain Name”)

3.	PROCEDURAL BACKGROUND:

3.1.	A hardcopy of the Complaint was received in full by Nominet on 13th April 2005. Nominet validated the Complaint and notified the Respondent of the Complaint on 18th April 2005.

3.2.	No Response was received by the Respondent and therefore informal mediation was not possible.  On 23rd May 2005 the Complainant paid the fee to obtain the Expert Decision pursuant to paragraph 21 of the procedure for the conduct of proceedings under the Nominet Dispute Resolution Service ("the Procedure").

3.3.	On 23rd May 2005, Nick Phillips, the undersigned ("the Expert"), confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as the Expert in this case and further confirmed that he knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question his independence and/or impartiality.  

4.	OUTSTANDING FORMAL/PROCEDURAL ISSUES: 

4.1.	The Respondent has not submitted a Response to Nominet in time (or at all) in compliance with paragraph 5(a) of the Procedure.

4.2.	Paragraph 15(b) of the Procedure provides, inter alia, that "If, in the absence of exceptional circumstances, a Party does not comply with any time period laid down in the Policy or this Procedure, the Expert will proceed to a Decision on the complaint".

4.3.	Nominet appears to have used all of the available contact details to try to bring the Complaint to the Respondent's attention.  There do not appear to me to be any exceptional circumstances involved and I will therefore proceed to a Decision on the Complaint notwithstanding the absence of a Response.

5.	THE FACTS:

5.1.	The Complainant is made by Mr David Dawkes on behalf of Dawkes Music.

5.2.	The Respondent has registered the Domain Name. This was registered on 17th March 2005. 

5.3.	The Domain Name links to a holding site run by the hosting agent, UK2NET.  

6.	THE PARTIES' CONTENTIONS:

The parties' contentions can be summarised as follows:

Complainant

6.1.	In its Complaint, the Complainant makes the following submissions:

6.1.1.	The Domain Name is identical or similar to a name or mark in which the Complainant has Rights;

6.1.2.	The Domain Name in the hands of the Respondent is an Abusive Registration;

6.1.3.	The Domain Name has quite obviously nothing whatsoever in common with the business of the Respondent other than the fact that the Respondent is in direct competition with the Complainant.

Respondent

6.2.	The Respondent has not responded to the Complaint.

7.	DISCUSSIONS AND FINDINGS
	
General

Under clause 2 of the DRS Policy ("the Policy") the Complainant is required to show, on the balance of probabilities that:

7.1.	It has Rights in respect of a name or mark which is identical or similar to the Domain Name; and

7.2.	The Domain Name, in the hands of the Respondent, is an Abusive Registration.

Complainant's Rights

7.3.	The first question I must answer is therefore whether the Complainant has proved on the balance of probabilities that it owns Rights in a name or mark that is identical or similar to the Domain Name.  

7.4.	The Policy defines Rights as including but not being limited to, "….rights enforceable under English law…..". This has always been treated in decisions under Nominet's DRS as a test with a low threshold to overcome and I think that must be the correct approach.

7.5.	The Complainant has provided absolutely no evidence to show that it has Rights in a name or mark that is identical or similar to the Domain Name.  It simply asserts that the Domain Name is identical or similar to a name or mark in which the Complainant has Rights.  This is despite the fact that the guidance which Nominet provides for would-be Complainants on its website  makes it clear that evidence should be provided to prove all aspects of the Complainant’s case.  Further, Nominet makes available an example Complaint Form which gives fairly lengthy examples of the kind of evidence which one would expect to see.  

7.6.	However and because the Nominet DRS is a relatively informal dispute resolution process I have carried out some limited investigations into the name Dawkes Music in order to provide some background against which to assess this Complaint.  

7.7.	Firstly, I have carried out a “google” search against the name Dawkes Music.  This throws up a number of results.  The first ten or so of these seem to relate to a limited company called Dawkes Music Limited and the top search item is a link to a website at www.dawkes.co.uk.  

7.8.	The website at www.dawkes.co.uk is a website advertising the goods and services of “Dawkes Music” which has premises both at the same Maidenhead address of the Complainant and also in Paignton in Devon.  

7.9.	In addition, I have carried out a “whois” search against the Domain Name Dawkes.co.uk.  This shows the Registrant of the Domain Name Dawkes.co.uk to be a company called Windcraft Limited which features on the Dawkes Music website and is said to be a “sister company” of Dawkes Music Limited.  

7.10.	A company search against Dawkes Music Limited shows it to have the same registered office address as the Complainant.  It also reveals that David Dawkes, who has brought this Complaint on behalf of the Complainant, is one of four directors and that he holds forty out of one thousand issued shares with Lindsay Dawkes being the majority shareholder (928 shares) and the balance of shares being held by other members of the Dawkes family.

7.11.	Given all this I have some difficulty in concluding that the Complainant, Dawkes Music has Rights in the name Dawkes Music.  I do not know whether this is the trading name of Mr David Dawkes or a partnership which includes Mr David Dawkes as a partner but the investigations I have been able to make show that it appears to be a limited company called Dawkes Music Limited which uses the trading name Dawkes Music and not the Complainant.  

7.12.	What I cannot do is to assume that the Complainant is one and the same as the limited company Dawkes Music Limited.  That is simply too big a leap and if the Complainant was intended to be the limited company that should have been made clear.  Indeed, the importance of disclosing a corporate name when using a business name has been given legal force by the Business Names Act 1985 which provides that where a company carries on business under a name which does not consist of its corporate name, it must ensure that its corporate name appears on all business letters, invoices and receipts issued in respect of the business as well at any premises where the business is carried out.

7.13.	It is outside the scope of this decision to comment on who does have Rights in the Domain Name but it seems likely that the company Dawkes Music Limited may have these Rights and that a Complaint filed by this company would stand a better chance of success particularly if it was supported by evidence.  That is of course not to pre-judge the merits of any future Complaint.

7.14.	In all these circumstances I do not feel that I can make a finding that the Complainant has Rights in a name or mark that is identical or similar to the Domain Name. 

7.15.	Having found that the Complainant has not proved, on the balance of probabilities, that it has Rights in a name which is either identical or similar to the Domain Name I will, therefore, not go on to address the other half of the test, namely whether the Domain Name is, in the hands of the Respondent, an Abusive Registration. 

8.	DECISION

8.1.	In the circumstances, I find that the Complainant has not proved on the balance of probabilities that it has Rights in a name or mark which is identical or similar to the Domain Name and I therefore decide that the Complaint should be rejected.

NICK PHILLIPS
31 May 2005