Nominet UK Dispute Resolution Service

DRS Number 3853

Sylvia Broeckx t/a Ever After Video Productions v Branchcom Limited

Decision of Independent Expert

1.	Parties

Complainant:	Sylvia Broeckx t/a Ever After Video Productions	
Country:	GB	  

Respondent:	Branchcom Limited
Country:	GB

2.	Domain Name

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

3.	Procedural Background

21 July 2006: 	Complaint lodged with Nominet electronically	
24 July 2006:	Hardcopy complaint received by Nominet	
24 July 2006:	Nominet forwarded complaint to Respondent	
16 August 2006:	No response received	

On 18 September 2006 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 has been providing wedding videos under the business name “Ever After Video Productions” since April 2002.  She registered the domain name <everaftervideos.co.uk> in around 2002 and has been using this as her website.  

Her other marketing activities include a colour leaflet branded “Ever After” in large stylised font and the words “Video Productions” in smaller font underneath. She has spent £1151.42 on advertising in the tax year ending April 2006.

The Domain Name was registered on 15 April 2006 in the name of the Complainant. The registrant contact was “Colvin Ecclestone”.

As of 20 July 2006, the Domain Name resolved to a webpage prominently branded “Wedding Video For Ever After Productions” with a copyright notice in the name of “A Day to Remember Limited”. The page is used to promote “unique creative wedding video in Sheffield, Manchester, Yorkshire, Cheshire and all of the UK”. One of the headings on the page states: “Productions for ever after”. The metatitle states: “Wedding Video For Ever After Productions – Wedding Video Productions”. Users are invited to “follow this link to the most experienced wedding studio for high definition wedding video in the UK”.  This is the only link on the page and it leads to the website of “The Manchester Wedding Studio” at www.manchesterweddingstudio.co.uk bearing the signature of “Colvin Ecclestone, Director”.  This latter website also bears a copyright notice “A Day to Remember Limited”.
  
According to a Companies House printout as of 24 July 2006 supplied with the bundle from Nominet, Colvin Ecclestone is a director of the Respondent.

6.	The Parties’ Contentions

Complaint

The Complainant has rights in the name “Ever After Video Productions”.

The Domain Name is abusive as it being used to bring up a title and domain suggesting association with the Complainant’s business. The only link on the page leads to a known competitor offering the same service. This page is in an attempt to divert possible clients to its business. The omission of the final letter in the Complainant’s own domain name and the usage of “Ever After Productions” on his website are clear attempts to create customer confusion and misdirection. 
 
Response

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 has been trading under the name “Ever After Video Productions” since 2002.  While her marketing spend (at least in the most recent tax year) was not substantial, nonetheless I think it reasonable to infer that over four years trading (including marketing via her website and colour brochure) she has built up a degree of goodwill in the name “Ever After Video Productions” such that it has become distinctive of her business.

Furthermore, I have concluded below that the Respondent set out to divert business intended for the Complainant. Such activity by the Respondent presupposes that the Complainant’s business was known and identified by its name.

The only differences between the name “Ever After Video Productions” and the Domain Name are that the Domain Name uses “video” instead of “videos” and omits the word “productions”. These distinctions are insignificant.

In my view the Complainant has established rights in a name which is similar to the Domain Name. 

In reaching this conclusion, I am mindful that decisions under the Policy have consistently held that the threshold for establishing rights is a low one. And, as the appeal panel pointed out in DRS 3316 (<bounce.co.uk>), this is not a court process; the DRS is intended to be a relatively simple, user friendly method of adjudicating domain name disputes and experts are permitted to use a measure of common sense. 

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.”

The Complainant’s own domain name <everaftervideos.co.uk> is an abbreviation of its trading name. 

The Respondent, a company with the same director as a competitor of the Complainant, has registered the Domain Name (<everaftervideo.co.uk>) which is identical to the Complainant’s domain name except to change “videos” to “video”. 

The Domain Name makes extensive references to variations of the Complainant’s trading name eg “Wedding Video For Ever After Productions” yet it redirects users to the competitor’s website.

I think it reasonable to infer from such conduct that the Respondent did not register / use the Domain Name for a genuine purpose but rather its aim was to divert business from the Complainant by attracting and confusing internet users into thinking that the Domain Name was connected with the Complainant.  Indeed the Respondent has not appeared in these proceedings to contest the Complainant’s assertions to that effect.

In my view the Domain Name was registered and has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant's rights and is therefore an abusive registration. 

8.	Decision

The domain name <everaftervideo.co.uk> should be transferred to the Complainant.

            Adam Taylor                                                                  Date