Nominet UK Dispute Resolution Service

DRS Number 3083

Kafevend Group Ltd -v- Vending Services 

Decision of Independent Expert

1.	Parties

Complainant:	Kafevend Group Ltd	
Country:	GB	  

Respondent:	Vending Services
Country:	GB

2.	Domain Name

kafevend.co.uk (“the Domain Name”)

3.	Procedural Background

26 October 2005: 	Complaint lodged with Nominet electronically	
27 October 2005:	Hardcopy complaint received by Nominet	
27 October 2005:	Nominet forwarded complaint to Respondent	
22 November 2005:	No response received by Nominet	

On 15 December 2005 I, Adam Taylor, the undersigned, confirmed to Nominet that I knew of no reason why I could not properly accept the invitation to act as expert in this case and further confirmed that I knew of no matters that 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 (if any)

None.

5.	The Facts

The Complainant was incorporated on 5 March 1992 and is a supplier of drinks vending machines.

The Domain Name was registered on 22 February 2000. 

The Complainant currently operates a website at the Domain. 

6.	The Parties’ Contentions

Complainant

The complaint is extremely brief. It simply says: “Kafevend.co.uk was registered by a company called Intronet on our behalf. Kafevend is our trading name and has been for the past 15 years. Intronet no longer exist as a company and therefore it has not been possible for us to transfer this domain.”

Respondent

There was no response.

7.	Discussion and Findings:

General

To succeed, the Complainant has to prove in accordance with paragraph 2 of the DRS Policy on the balance of probabilities, first, that it has rights (as defined in paragraph 1 of the DRS Policy) in respect of a name or mark identical or similar to the Domain Name and, second, that the Domain Name, in the hands of the Respondent, is an abusive registration (as defined in paragraph 1 of the DRS Policy).

Complainant’s Rights

The Complainant asserts that it has traded under the name “Kafevend” for 15 years. While there is no supporting evidence, I am prepared to accept that the Complainant has common law rights in the name “Kafevend” based on longstanding use.

It is generally accepted in DRS decisions that “rights” is a low threshold test. 

There is no response denying the Complainant’s assertion and I have no other reason to doubt it.

A company search included in the bundle shows that the Complainant has been in existence for some 13 years and that the word “Kafevend” was the dominant part of its corporate name for all of that time.  

For those reasons I conclude that the Complainant has established common law rights in respect of a name or mark identical to the Domain Name.

Abusive Registration

Is the Domain Name an abusive registration in the hands of the Respondent? Paragraph 1 of the DRS 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 Complainant’s Rights.”

Paragraph 3a of the DRS Policy lists non-exhaustive factors which may be evidence that the Domain Name is an abusive registration. Only one is relevant here:

“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.”

Was there a relationship between the Complainant and the Respondent? 

The Complainant says that a company called Intronet registered the Domain Name on its behalf. The Complainant has not provided proof of this as it should have done. However, the following are significant:

First, the Complainant’s assertion is supported by the Nominet register entry. This shows both that the original tag for the Domain Name (since changed) was “INTRONETS” and that an “@intronets.com” email address appears in the “created by” field. Neither of these pieces of information is available on the public “whois”.

Second, there is no response denying the Complainant’s allegation.

Third, the Domain Name equates exactly to the trading name which the Complainant has been using for many years.

I think it reasonable to infer from these facts that a company using the name Intronet or Intronets did indeed register the Domain Name on behalf of the Complainant.

The registrant of the Domain Name and Respondent in these proceedings is “Vending Services”, not Intronet. While “Vending Services” is referable to the type of services offered by the Complainant, it clearly does not in fact denote the Complainant as otherwise these proceedings would have been unnecessary. Presumably “Vending Services” was the registrant name used by Intronet when it registered the Domain Name and in the absence of any other explanation for this, I see no reason to distinguish between Intronet and the registrant name it entered. 

I conclude that the Domain Name was registered as a result of a relationship between the Complainant and the Respondent.

The Complainant is using the Domain Name for a website now and I have no reason to doubt that it has been using the Domain Name exclusively since it was registered.

I also think it reasonable to infer, in the circumstances outlined above, that the Complainant paid for registration and/or renewal of the Domain. 

I am satisfied on the balance of probabilities that Paragraph 3a.v of the DRS Policy applies here and that the Domain Name was an “abusive registration” as defined in the DRS Policy. 

8.	Decision

The domain name kafevend.co.uk should be transferred to the Complainant.

______________________                                        _________________                                      
            Adam Taylor                                                                  Date