Nominet UK Dispute Resolution Service

Dispute no. 3294

Forum Bioscience Holdings Limited -v- Darren Rowe

Decision of Independent Expert

1.	Parties

Complainant:	Forum Biosciences Holdings Limited
Country:		United Kingdom

Represented by:	AA Thornton & Co.
Country:		United Kingdom

2.	Domain Name

<aqualutionltd.co.uk> (the “Domain Name”)

3.	Procedural Background

3.1	The Complaint entered Nominet’s system on 16 January 2006. Hardcopies of the Complaint were received by Nominet on 17 January 2006. The Complaint was validated and sent to the Respondent on 23 January 2006. No response was received within the deadline for response on 17 February 2006 and therefore no response was forwarded to the Complainant. Mediation not being possible and the Complainant having paid the relevant fee, the Complaint was referred to me on 23 February 2006. On that date, I confirmed that I was not aware of any reason why I could not act as an Independent Expert in this case and I was appointed as such on 28 February 2006.

3.2	On 3 March 2006, I issued a procedural order (the “Procedural Order”) under paragraph 13(a) of the procedure for the conduct of proceedings under the Dispute Resolution Service Procedure (the “Procedure”).  In the Procedural Order I set out my understanding of the products and services offered by the Complainant and the Respondent’s company, Aqualution Limited, having reviewed the website of the Complainant and the website operating from the Domain Name, and invited further submissions from the parties in connection with the nature of the businesses operated by the parties.  The Procedural Order also invited the Complainant’s comments as to what extent, if at all, the Complainant maintained that the business referred to at the website operating from the Domain Name is a not a genuine business.

3.3	The Procedural Order provided the Complainant with the option of making a further submission by no later than 9 March 2006 and for the Respondent’s response to the same to be submitted by no later than 14 March 2006. The Procedural Order also provided that the time by which I should forward a decision in this matter to Nominet be extended to 21 March 2006.

3.4	I was initially notified by Nominet that neither the Complainant nor the Respondent filed additional submissions pursuant to the Procedural Order.  I therefore proceeded to prepare a decision in this matter and this was forwarded to Nominet on 21 March 2006.  Upon receipt of this decision the Complainant’s advisers contacted Nominet and informed Nominet that it had submitted a response to this Procedural Order.  Upon investigation by Nominet this appears to have been correct.  

3.5	Accordingly, on 23 March 2006, Nominet forwarded the Complainant’s submission to the Respondent and stated that if he wished to provide a substantive response to that submission should do so within 4 working days.   The Respondent did not reply to that enquiry. 

3.6	I have therefore amended and re-issued my decision to take into account the Complainant’s additional submission in this respect and it is my amended decision that follows.   It should be noted that these amendments have not led to a different outcome from that set out in my initial decision.

4.	The Facts

4.1	The Complainant is a private limited company, incorporated in England and Wales on 4 July 1980, with company registration number 01506354.  According to the Complainant’s website, the Complainant started as a distributor of life science ingredients to the Pharmaceutical, Food, Feed and Health Products industries. Since that time, “Forum has expanded its skill base across the life sciences value chain”.

4.2 	The Respondent is an individual living in Peterborough.  He is a director of Aqualution Limited, a company incorporated in England and Wales on 7 April 2005 with registered company number 05417761.  Aqualution Limited is engaged in the business of the provision of services in relation to the sourcing, installation, implementation and maintenance of hydrotherapy equipment (in particular “Aquamed 250” systems).  It would appear that this equipment is primarily used by chiropractors in the treatment of their patients.

4.3	The Complainant does not offer goods and services relating to the sourcing, installation, implementation and maintenance of hydrotherapy equipment.

4.4 	The Domain Name was registered on 1 June 2005 in the name of the Respondent (by whom it continues to be held).  The Domain Name automatically redirects visitors to www.aqualutionltd.com, which is the website for the Aqualution Limited business (the “Website”).

4.5	On 12 September 2005 the Complainant wrote directly to Aqualution Limited at the address for the company given on the Website alleging that the company’s use of the AQUALUTION name constituted trade mark infringement. No reply was received. 

4.6	The Complainant’s trade mark agents, A.A.Thornton & Co wrote by fax and post to Aqualution Limited on 25 October 2005 again alleging trade mark infringement.  The letter was also copied to the Respondent and his co-Director, Giles David Collett. Again, no response was received.

5.	The Parties’ Contentions

Complainant

5.1	The Complainant seeks transfer of the registration of the Domain Name into its name on the grounds that it is identical or similar to a name or mark in which it has Rights (as defined in the Policy) and that the registration of the Domain Name in the name of the Respondent is an Abusive Registration.  The reasons given for this are as follows.

5.2 	The Complainant is the proprietor of UK Trade Mark Registration Number 2349356 (“AQUALUTION”) and Community Trade Mark Registration Number 3816428 (“AQUALUTION”) (“the Trade Marks”).  Material provided by the Complainant in this respect indicates that UK Trade Mark was filed on 20 November 2003 and that the Community Trade Mark was filed on 17 May 2004.

5.3	The registered mark AQUALUTION is “confusingly similar to the domain name in dispute AQUALUTIONLTD.COM” (which should presumably read AQUALUTIONLTD.CO.UK).  The dominant element of both the Domain Name and the registered mark is the word AQUALUTION and that the addition of “LTD” to the Domain Name does not serve to distinguish the Domain Name from the registered mark since “LTD” is a well established abbreviation for the descriptor of company type “LIMITED”. 

5.4	The Trade Marks have a priority date of 20 November 2003 and the Domain Name was not registered until 1 June 2005. The Trade Marks are registered in various classes including: 

Class 10: Water treatment apparatus for use in dental applications. 

Class 11: Water treatment apparatus; water treatment apparatus for disinfectant and biocide in agriculture, milk production, aquaculture, horticulture, food processing, pharmaceutical and dental applications. 

5.5	The Website offers beds “which incorporate as a dominant feature water treatment facilities”.  According to the Complainant, these products are, therefore, identical to or similar to the products protected by the Trade Marks. 

5.6	The Complainant asserts that “even the most rudimentary trade mark searches conducted by the Respondent would have revealed that the Complainant was the registered proprietor of the mark” the Respondent adopted and, therefore, “either the Respondent deliberately adopted an identical mark and a confusingly similar domain name, or he proceeded without conducting even the most basic searches and in ignorance of the Complainant’s registered trade mark rights”. 

5.7	Ignorance is said to be no defence to registered trade mark infringement and in light of the Complainant’s registered trade mark rights the Respondent knew, or should have known, that he did not have the right to use the mark AQUALUTION or the Domain Name, and therefore that he had no legitimate interest in the mark. 

5.8	This “deliberate decision of the Respondent to knowingly infringe the rights of the Complainant” indicates, according to the Complainant, that the Domain Name was primarily registered to disrupt the business of the Complainant.  It is claimed that if the Respondent’s primary purpose was not to disrupt the business of the Complainant, then he would have taken steps to respond to the numerous approaches made prior to this Complaint being initiated. 

5.9	The Complainant asserts that given the number of different attempts to contact the Respondent or his company it is not plausible to suggest that none of these communications were received and that the lack of response to the various approaches from the Complainant and their attorneys confirms the assumption that the Domain Name was “registered in bad faith”. 

5.10	The Complainant asserts that the Respondent deliberately adopted the Domain Name to benefit from the reputation of the Complainant and that it is apparent that by using the Domain Name, the Respondent is “intentionally attracting for commercial gain, internet users” to the Website, by “creating a likelihood of confusion with the Complainant’s registered mark as to the source, sponsorship, affiliation, or endorsement of the Website or location or of a product or service on the Website or location”. 

5.11	The Respondent is a Director of Aqualution Limited.  Companies House records show that the company was registered on 7 April 2005, a date after the filing of the Trade Marks. 

5.12	The Complainant also points out that the company was previously called Aqualutions Limited and that the company name was changed to Aqualution Limited on 13 December 2005. The fact that the Respondent registered “www.aqualutionltd.com” rather than “www.aqualutionsltd.com” (both of which, again, should presumably have the suffix .co.uk) suggests, the Complainant claims, that the Domain Name was deliberately registered to disrupt the business of the Complainant and to attract commercial gain by creating a stronger likelihood of confusion with the Complainant’s registered mark.

Respondent

5.13 	As set out above, the Respondent has served no Response in these proceedings.

6.	Discussion and Findings:

The Structure of the Complaint

6.1	There is one other point that it worth making in this case before addressing the substance of the Complainant’s contentions.  Throughout the Complaint the Complainant makes assertions which sit oddly with the wording of the Policy.  It is alleged that the Domain Name is “confusingly similar” to the trade mark.  The Respondent is alleged to have acted in “bad faith”.  The Respondent’s activities are alleged to be “intentionally attracting for commercial gain, internet users” .    These are not phrases that are to be found in the Policy.  They are, however, all phrases that appear in the Uniform Domain Name Dispute Resolution Policy (UDRP) that apply in relation to .com, .net, and .org domain names.  The Complainant also incorrectly refers on two occasions in the Complaint to the Domain Name as “aqualutionltd.com”.

6.2	At first sight it appears that the Complainant or his advisors have prepared this Complainant on the basis that it is the UDRP and not the Nominet DRS that applies.  However, it is hard to believe that trade mark agents of the standing of the Complainant’s advisors could have made such a basic and embarrassing error.   What appears more likely is that the Complainant or its advisors have deliberately cut and pasted assertions made in a separate complaint brought in relation to aqualutionltd.com under the UDRP without going to the expense of preparing a proper complaint under the Nominet procedure.   I comment upon the possible reasons for this later on in this decision.   

6.3	In the UDRP decision of HQHair Limited v. Head Quarters (WIPO Case No. D2003-0942) I criticised an attempt to rely upon a response in Nominet proceedings as an adequate response in parallel UDRP proceedings.   These criticisms equally apply to any attempt to rely upon a UDRP complaint as a complaint in Nominet proceedings.

6.4	There are some similarities between the UDRP and Nominet systems, but they are not the same and should not be treated as the same.  There are important and significant differences.    

6.5	In this decision, I have tried to pull out from the Complaint those assertions that are relevant to the DRS and match the assertions made to the relevant provisions in the DRS.   However, this has at times proved difficult.   It may also be that as a result I have at times misunderstood or mischaracterised aspects of the Complainant’s case.  If so, then frankly the Complainant and their advisors have only themselves to blame.  

6.6	No reference to a parallel UDRP complaint is made in the Complaint in these proceedings.  However, given my comments above, shortly prior to completing the first version of this decision I checked whether or not a UDRP complaint had been made in relation to aqualutionltd.com.   It appeared from information available on the WIPO website that such a complaint had indeed been made and a decision given.  I did not do so prior to finalising the substantive parts of this decision so as to prevent there being any allegation that the reasoning in that decision (in respect of which neither party had made submissions in the current proceedings) may have influenced the outcome of the case before me.     

What needs to be proved

6.7	To succeed under the Nominet Dispute Resolution Service Policy (the “Policy”), the Complainant must prove on the balance of probabilities, first, that he has Rights in respect of a “name or mark” that is identical or similar to the Domain Name (paragraphs 2(a)(i) of the Policy) and secondly, that the Domain Name is an Abusive Registration in the hands of the Respondent (paragraph 2(a)(ii) of the Policy).

6.8 	Abusive Registration is defined in paragraph 1 of the Policy in the following terms:

Abusive Registration means 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.

6.9	The failure by the Respondent to file submissions in response does not entitle the Complainant to the equivalent of a default judgment on these issues. The Complainant still has to make out his case on the balance of probabilities under the Policy in order to obtain the decision it wants.   

6.10	For a respondent not to respond to a complaint under the Policy will often be ill advised. Very little evidence from a complainant may be sufficient for an expert to conclude that on the balance of probabilities the complainant’s case is made out (for a good example of this, see my decision in J F Home Improvements Ltd -v- Mr David Giddy [2005] DRS 3051 and my comments at paragraph 7).    

6.11	Further, an expert may in some cases draw an adverse inference from the fact that a respondent does not respond to allegations made in a complaint.  The reasons why a respondent registered or uses a domain name are frequently vitally important and this is something that is peculiarly in the knowledge of the respondent.    

6.12	Nevertheless, failure to provide a response is not by itself sufficient to justify a decision in the Complainant’s favour.  A respondent is under no obligation to provide a response and he is quite entitled if he thinks that a complainant has not proved his case to sit back in the hope that the expert will form a similar view.

Complainant’s Rights

6.13	It is apparent from the Complaint that the Complainant has registered trade mark rights in the name “AQUALUTION”. When one discards the letters “LTD” and the “.co.uk” suffix from the Domain Name, the Complainant’s registered trade mark and the Domain Name are identical.

6.14 	Accordingly, I find that the Complainant has shown that it has Rights in a name or mark which is identical or similar to the Domain Name within the meaning of paragraph 2(a)(i) of the Policy.

Abusive Registration

6.15	Paragraph 3 of the Policy provides a non-exhaustive list of factors which may be evidence that a domain name registration is an Abusive Registration. It would appear from the Complaint that the Complainant is alleging (but see my comments at paragraph 6.5 above in relation to the structure of the Complaint) that Paragraph 3(a)(i) C and 3(a)(ii) are of application in this case.  

6.16	Paragraph 3(a)(i) C states:

“Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily for the purpose of disrupting the business of the Complainant.”

6.17	Paragraph 3(a)(ii) states:

“Circumstances indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant.”

6.18	However, before addressing these issues it is convenient in this case first to address a separate question i.e. to what extent the Respondent was aware of the Complainant’s interest in or use of the name “AQUALUTION” at the time he registered the Domain Name.  The Complainant’s contentions in this respect are as follows:  

(i)	That the Respondent either knew or should have known about the Complainant’s rights in the name “AQUALUTION” and, therefore, should have known that he had no legitimate right to use the name;

(ii)	The fact that the Respondent failed to respond to the numerous approaches made prior to this Complaint being initiated, which is said to confirm “the assumption that the domain name was registered in bad faith” ; and

(iii)	The failure by the Respondent to register a domain name that corresponds to the actual company name (as it was at the time the Domain Name was registered).

6.19	Unfortunately for the Complainant, I do not accept these contentions. 

6.20	“AQUALUTION” is not a purely descriptive name.   However, the Complainant does not allege that the name is so unusual or distinctive that the Respondent must have known of the Complainant’s interest.  This is not surprising given that the name on its face appears to be an elision of the word “Aqua” for water and some other word ending in “lution”.  Possibilities include, solution, evolution and revolution.  That the Respondent might have chosen this name with the Aqualution Limited business in mind is not improbable.   The products in question are “Aquamed” hydrotherapy units and the business appears to use the strap line “revolution through evolution”.

6.21	Further the Complainant does not allege that the use of the name is so well known either amongst the general public or those engaged in the trade in which the Respondent is engaged that the Respondent must have known about it.  In its response to the Procedural Order the Complainant made the following statement:

“The Complainant does use the mark AQUALUTION even though it does not feature on their website at www .forum .co .uk. The current use of the mark AQUALUTION concerns apparatus, a water solution and services relates to farming and agriculture. However, the water solution and the related goods and services have very broad application in a variety of other areas, and the Complainant is, for example, developing AQUALUTION water to use as a disinfectant which can be used in hospitals, nursing homes, to clean medical instruments, as a virucidal treatment, a treatment for wounds and ulcers, in the food and beverage industry, oil industry and healthcare applications.”

6.22	The extent of the usage of this mark in the farming and agriculture fields is not revealed and no further evidence is offered in support of this statement.  In the circumstances I am not convinced that the Respondent, which is not engaged in the farming and agricultural fields would or is likely to have known about this activity.  The Complainant also states that: 

“Presentations have also been made to various businesses in industry sectors such as food, beverage, aquaculture, horticulture, medical, petrochemical.”

Again, however, even if correct, on the evidence before me it does not follow from this that the Respondent is likely to have known of the Complainant’s interest in the name.   
  
6.23	The Panel notes that at one point in the Complaint, the Complainant characterises the Respondent as a “competitor” but, again, there is nothing to substantiate this assertion.   

6.24	Therefore, at the heart of the Complainant’s submission here is the claim that the “most rudimentary trade mark searches would have revealed the Complainant’s rights”.  As a statement of fact this may well be right but the Complainant does not go so far as to contend that in the circumstances of this case a search was in fact or was likely to have been made by the Respondent.    Indeed, trade mark lawyers and trade mark agents are painfully aware of the fact that companies (particularly small companies) frequently do not conduct such searches before adopting a name. 

6.25	Therefore, the Complainant is essentially advancing the contention that the Respondent had “constructive” notice or knowledge of the Complainant’s mark.  However, the concept of constructive notice or knowledge is one that in my opinion neither needs to be nor should be imported into the Policy.   

6.26	The fact that the Respondent did not respond to correspondence from the Complainant’s trade mark agents does not in this case take matters further.  I accept the Complainant’s submission that it is not plausible to suggest that none of these communications were received.  Therefore, I am prepared to accept in the absence of any statement or evidence from the Respondent to the contrary that the Respondent received some or all of the communications from the Complainant, its representatives and Nominet and chose not to respond.  It is perhaps unfortunate that the Respondent chose this course of action.  However, I do not think that this non-response can be said to provide evidence of the Respondent’s initial knowledge of the Complainant’s interest in the AQUALUTION name.   Indeed, both the initial letter from the Complainant, and the letter from its trade mark agents do not even suggest that this is the case.  They simply assert that Aqualution Limited’s acts constitute trade mark infringement.

6.27	The fact that Aqualution Limited was initially registered with the name Aqualutions Limited, also takes matters little further.  Why this occurred I do not know.  I accept that this is rather odd and it is noteworthy that the company changed its name to match the Domain Name after the Complainant’s trade mark agents had written letters of complaint to the Respondent.  However, whilst curious, I do not think that this can be said to constitute evidence of the Respondent’s initial knowledge of the Complainant’s interest in the name.  Nor is there any attempt by the Complainant to explain why this might be so.   

6.28	Lastly it needs to be recorded that in its response to the Procedural Order, the Complainant refers to various other domain names it possesses that are similar to the Domain Name and from which I am asked to infer that the Respondent has the relevant knowledge.  This essentially represents the Complainant’s case on this point at its highest.  However, I believe that it makes no difference.  Firstly, there is the procedural point that this is not an assertion that is made in the original Complaint and I am unconvinced that this is a point of relevance to the issues upon which the parties were invited to make further submissions by means of the Procedural Order.  This is therefore in essence a non-standard submission under paragraph 13 of the Nominet Procedure and absent further explanation I am disinclined to take notice of this in this decision.  Further, I am doubtful it takes the Complainant much further in any event.  The domain names are said merely to link through to the Complainant’s site at www.forum.co.uk where products quite different from those of the Respondent are mentioned and where no reference to any product under the AQUALUTION name is to be found.  The best that could be said is that if the Respondent was aware of these related domain names, they might raise a suspicion in his mind that AQUALUTION was a name that the Complainant was interested in using.  I do not think this is sufficient in this case.    

6.29	Therefore, in short, the Complainant has not shown that at the time that the Respondent registered the Domain Name he was aware of the Complainant’s interest in the name.     

6.30	I also do not accept the Complainant’s contention in its additional submission pursuant to the Procedural Order that the Complainant’s business is not a genuine one.  The basis for that assertion is essentially the contentions already set out at paragraph 6.18 and 6.27 above.  They do not justify that conclusion.  

6.31	With this in mind I now turn to the allegations under paragraphs 3(a)(i) C and 3(a)(ii) of the Policy.

6.32	Paragraph 3(a)(i) of the Policy gives a series of examples of what might constitute  abusive registration or acquisition.  Key here is the Respondent’s intention at the time of registration. Given my finding as to the Respondent’s knowledge in this case, the Complainant’s assertion that the registration by the Respondent of the Domain Name was primarily (or at all) for the purpose of disrupting the Complainant’s business, must fail.

6.33	However, the allegation under paragraph 3(a)(ii) cannot be dismissed so easily.  Paragraph 3(a)(ii) provides an example not of abusive registration but abusive subsequent use.  Neither intention nor knowledge on the part of the Respondent is strictly required by this paragraph (although this may well still be very relevant so far as the factors listed in paragraph 4 of the Policy are concerned). 

6.34	Could it be said then that there are circumstances in this case indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant?   I think not.  

6.35	As I have already mentioned above, the Complaint and the Respondent operate in quite different fields.  There is little or no evidence as to the extent of the Complainant’s usage of the AQUALUTION name.  In the circumstances, it seems improbable that any internet user would think that the Domain Name is connected with the Complainant.   

6.36	Before leaving this issue there is one further point worth addressing in passing. The Complainant alleges trade mark infringement.   The assertion is essentially that the Respondent’s use of the AQUALUTION name would result in trademark infringement and that therefore the registration of the Domain Name was in “bad faith”.  I have already explained above why this assertion fails, but it is inherent in that allegation that the Complainant’s subsequent use has constituted trade mark infringement.  Can it be said that in such circumstances the subsequent use is of itself sufficient to justify a finding that there is an “Abusive Registration”; particularly since 12 September 2005 when the Complainant informed the Respondent of its trade mark rights?

6.37	I should make it clear that this is not how the Complainant puts its case.   Indeed, that it should not do so is unsurprising if, as I believe, this is essentially a cut and pasted UDRP complaint.  To put forward such a contention in UDRP proceedings where both bad faith registration and use is required would be misconceived.   However, even if the Complainant did put its case in this manner, I believe this contention would fail.    

6.38	Although the Respondent’s actions may constitute trade mark infringement, the materials in the Complaint are insufficient for me to form a view on this.  However, even if this were not the case, for present purposes this does not matter.

6.39	As was stated by the Appeal Panel in Seiko UK Ltd -v- Designer Time/Wanderweb [2002] DRS 248:

“The question of trade mark infringement is, as both parties (and the Expert) agree, one for the courts to decide. The question of abusiveness is for the Expert to decide. The two jurisdictions co-exist alongside each other, and no doubt there will be considerable overlap. However, there may well be factual scenarios in which an abusive registration under the Policy would not be an infringement of trade mark under the 1994 Act, and where an infringement of trade mark under the 1994 Act would not be an abusive registration under the Policy. The safest course for parties and Experts is simply to address the terms of the Policy.”

6.40	This was followed by a majority of the Appeal Panel in Consorzio del Prosciutto di Parma -v- Vital Domains Ltd [2002] DRS 359.  I see no reason to depart from this reasoning in this case. 

6.41	In conclusion, I find that the Complainant has failed to show that there has been abusive use or registration of the Domain Name.

Reverse Domain Name hijacking

6.42	Reverse domain name hijacking is defined in the DRS procedure as “using the Policy in bad faith in an attempt to deprive a registered domain name holder of a domain name.”  There is, of course, no call by the Respondent in this case for me to make such a finding.  However, this does not preclude me from making such a finding should I consider it to be appropriate (see for example, Cardpoint Plc -v- Riga Industries [2002] DRS 538 and Pleasureland Ltd v Dotcombiz.au [2005] DRS 2206).  

6.43	I have already held that the Complainant has failed to show that the Respondent was aware of the Respondent’s interest in the AQUALUTION name.   However, I would go further and say that there was nothing in the Complaint that might be said to ground any real belief on the part of the Complainant that the Respondent had that knowledge.  It was no more than a speculative assertion on the part of the Complainant.  Further, AQUALUTION is not an unnatural name for the Complainant’s business and despite being given an opportunity to do so, the Complainant has not alleged that the business is anything but genuine.

6.44	In the circumstances, the Complaint appears on its face to have been a speculative one, perhaps (and this is speculation on my part) in the hope that in a Response the Respondent might inadvertently make the Complainant’s case for it.

6.45	Further there is the issue of the structure of the Complaint itself. A poorly drafted complaint is not of itself something that would justify a finding of “bad faith” (see Auto Exposure Ltd –v- Mr Kevin Beard [2003] DRS 1063).  However, what appears to have happened here is that the Complainant’s advisors have made minor modifications to a UDRP complaint rather than formulate a proper complaint under the Nominet procedure.  The obvious conclusion is that the Complaint was a somewhat half hearted attempt to “try one’s luck” under the Nominet procedure in a way that would minimise additional expense.  This I think is a factor that I am entitled to take into account when it comes to the question of bad faith.

6.46	Had the Complainant suggested in correspondence prior to the Complaint that the AQUALUTION name had been chosen by the Respondent with knowledge of, and with the intention of taking advantage of, the Complainant’s interest in the Domain Name and the Respondent had chosen not to respond to that allegation, then this might tell against a finding of bad faith.  A respondent has no obligation to respond to such correspondence but the fact that he does not do so is something that may well fortify a suspicion or belief on the part of a complainant that there has been abusive registration or use of the domain name.  But this is not what the Complainant did in this case. It simply alleged that Aqualution Limited’s actions constituted trade mark infringement in a series of “without prejudice” letters.   

6.47	In the circumstances, this is a case where I was initially inclined to make a finding of reverse domain name hijacking.  However, in the end I have decided not to do so.  The main reason for this is that such a finding would be based upon conclusions and criticisms in relation to the conduct and motivation of the Complainant and its advisors that have not been put, and in all fairness should be put, to the Complainant if they are to form the basis of such a finding.   This could be addressed by the making of a further procedural order directed at the Complainant, but this would result in yet further delay in the issuance of a decision in the Respondent’s favour.  Since the Respondent has not sought a finding of reverse domain name hijacking I believe that such further delay would be unfair to the Respondent.  

7.	Decision

7.1 	For the reasons set out above, the Complaint is dismissed.

Matthew Harris
31 March 2006