Nominet UK Dispute Resolution Service

DRS 04274

Goldmine International –v- GoldMine Int.

Decision of Independent Expert

1.	Parties

Complainant Type:	Business
Country:		NO

Respondent:		GoldMine Int.
Country:		GB

2.	Disputed Domain Name

The domain name at issue is < goldmineint.co.uk>.

3.	Procedural Background

On 4 December 2006, the Complaint was lodged with Nominet UK in accordance
with the Dispute Resolution Service Policy (the “DRS Policy”) and hard copies of the Complaint were received in full on 20 December 2006.

On 20 December 2006, Nominet UK validated the Complaint and on the same day Nominet UK sent a copy of the Complaint to the Respondent together with a notice that inter alia advised the Respondent that the Nominet UK Procedure for the Conduct of Proceedings under the Dispute Resolution Service (“the DRS Procedure”) had been invoked and allowed the Respondent 15 working days within which to file a Response to the Complaint.

On 17 January 2007, as no Response had been received from the Respondent by Nominet UK, the Complainant was notified accordingly and the Respondent was sent a notice advising that mediation would not be offered and that the dispute would be sent to an Expert under the DRS procedure for determination if the Complainant so requests.

Nominet UK received delivery failure reports in relation to the notices sent by email to the Respondent by email on 20 December 2006 and 17 January 2007. Said notices were sent to both the contact given by the Respondent at the time of registration of the domain name namely, <info@glodmineint.co.uk> and to <postmaster@goldmineint.co.uk>. The notice sent to the Respondent by post on 17 January 2007 to the postal contact address at 33, Queen Anne Street, London was returned to Nominet UK marked “please return to sender”.

On 31 January 2007, Nominet UK received the relevant fee for these proceedings from the Complainant and Nominet UK proceeded to select and appoint an expert.

On 7 February 2007, James Bridgeman was selected and duly appointed as Expert and the file was transmitted to the Expert pursuant to paragraph 11 of the DRS Procedure.

4.	The Facts

The Complainant claims to have a registered business name GOLDMINE INTERNATIONAL since 11 February 2000. On examination of the Certificate of Registration submitted as an annex to the Complaint it would appear that the Complainant’s registered business name is in fact GOLDMINE INTERNATIONAL ANDRE ROSHAN.

Since 13 August 2003 the Complainant has carried on business under the names GOLDMINE INTERNATIONAL and GMI. 

The Complainant is the owner of the gTLD domain names <goldmineint.com> and <goldmineint.net>. Both domain names <goldmineint.com> and <goldmineint.net> were registered by the Complainant on 13 August 2003. The Complainant has maintained a website at those Internet addresses offering his goods for sale since September 2003.

There is no information about the Respondent except for the details provided for the purposes of registering the domain name in dispute. 

According to the WHOIS database, the domain name in dispute was registered by the Respondent on 16 August 2006. When applying to register the domain name in dispute, the Respondent did not supply details of its legal status or its name servers. The Respondent stated that its contact person is M. Goldmine with an email address at <info@glodmineint.co.uk>. It is to be noted that this is email address is very similar to the domain name in dispute, having only the letters “ol” reversed.

The domain name does not resolve to any active web site.

5.	The Parties’ Contentions

Complainant’s Submissions

The Complainant claims to have a registered business name GOLDMINE INTERNATIONAL since 11 February 2000. 

The Complainant does not claim to own any registered trade marks but has provided evidence that he has carried on business using the names GOLDMINE INTERNATIONAL and GMI as trade marks and claims to have done so since 13 August 2003.

The Complainant is the owner of the gTLD domain names <goldmineint.com> and <goldmineint.net> and claims to have maintained a website at those addresses since September 2003.

The Complainant claims that he has advertised and carried on business selling gold coins, jewellery and watches using the names GOLDMINE INTERNATIONAL and GMI since 2003. The Complainant has submitted two gold-plated watches and a product packaging box and printed matter as examples of his goods and packaging.

The Complainant submits that the domain name in the hands of the Respondent is an Abusive Registration because it was primarily registered to unfairly disrupt the Complainant’s business “by stealing and manipulation of information with intentions to spoil company's reputation and goodwill.” 

The Complainant submits that the Respondent has used by the domain name in dispute in a way which has already confused people into thinking that it was controlled by the Complainant. The domain name in dispute is identical to the Complainant’s .com and .net gTLD domain names.  

The Complainant further submits that the Respondent has also engaged in the following unlawful activities on its web site.

i.	violations of rights for registered business e.g., logo, trademark, identity;
ii.	stealing and manipulation of product/services and e.g. information, official contacts, promotions and feedbacks 
iii.	Invasion of privacy e.g., emails etc.

Respondent’s Submissions

The Respondent has not filed any Response.

6.	Discussion and Findings:

Preliminary Issue as to Service on the Respondent

A preliminary issue arises in this undefended case as to whether the Respondent was properly served with the required notices.

Nominet UK received delivery failure reports in relation to the notices sent by email to the Respondent by email to both the <info@glodmineint.co.uk> and to postmaster@goldmineint.co.uk addresses on 20 December 2006 and 17 January 2007. The notice sent by post to the Respondent at its postal address at 33, Queen Anne Street, London was returned to Nominet UK marked “please return to sender”.
Such circumstances were anticipated in paragraph 2 of the Nominet UK DRS Procedure that addresses service of documents inter alia as follows:
“2. Communication
a. We will send a complaint (see paragraph 3) to the Respondent by using, in our discretion, any of the following means:
i. sending the complaint by first class post, fax or e-mail to the Respondent at the contact details shown as the registrant or other contacts in our Domain Name register database entry for the Domain Name in dispute;
ii. sending the complaint in electronic form (including attachments to the extent available in that form) by e-mail to;
A. postmaster@<the Domain Name in dispute>; or
B. if the Domain Name resolves to an active web page (other than a generic page which we conclude is maintained by an ISP for parking Domain Names), to any e-mail address shown or e-mail links on that web page so far as this is practicable; or
iii. sending the complaint to any addresses provided to us by the Complainant under paragraph 3(b)(iii) so far as this is practicable.
…
e. 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;
and, unless otherwise provided in this Procedure, the time periods provided for under the Policy and this Procedure shall be calculated accordingly.”
In the circumstances the Respondent is deemed to have received the notices in accordance in accordance with sub-paragraphs 2(e)(ii) and  2(e)(iii) of the Nominet UK DRS Procedure.

Substantive Issues

In order to succeed in these proceedings, paragraph 2(b) of the DRS Policy requires the Complainant to prove on the balance of probabilities that both elements of the test set out in paragraph 2(a) are present viz. that 

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

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

Complainant’s Rights

The Complainant claims to have a registered business name GOLDMINE INTERNATIONAL. On examination of the Certificate of Registration submitted as an annex to the Complainant it would appear that the Complainant’s registered business name is in fact GOLDMINE INTERNATIONAL ANDRE ROSHAN.

While the Complainant does not appear to have a registered trade mark, it has submitted evidence in the form of its marketing materials and two gold plated watches as evidence of his use the words GOLDMINE INTERNATIONAL and the letters GMI as trade unregistered trade marks.

On the balance of probabilities, the Complainant has made out a sufficient case to establish that he has rights in the unregistered trade marks GOLDMINE INTERNATIONAL and GMI.

Furthermore the Complainant is the owner of the gTLD domain names <goldmineint.com> and <goldmineint.net> and has maintained a website at those addresses since September 2003.

In the view of this Expert, the domain name in dispute is similar to the Complainant’s unregistered trade mark GOLDMINE INTERNATIONAL.

Abusive Registration

The Complainant has alleged that the Respondent has engaged in 

“i.	violations of rights for registered business e.g., logo, trademark, identity;
ii.	stealing and manipulation of product/services and e.g. information, official contacts, promotions and feedbacks;
iii.	Invasion of privacy e.g., emails etc.”

but he has not provided any evidence to support these allegations.

Paragraph 3 of the DRS Policy sets out a non-exhaustive list of factors which may be evidence that the domain name is an Abusive Registration. Paragraph 3 iv. of the DRS Policy provides that “where it is independently verified that a respondent has given false contact details to us, it may be taken as evidence that the domain name is an Abusive Registration”. 

In the present case, it would appear that both the postal address of the Respondent and the email address of the Respondent’s contact <info@glodmineint.co.uk> were incorrect.

The factors listed in paragraph 3 of the DRS Policy as indicators of an Abusive Registration, also include circumstances indicating that the Respondent has registered or otherwise acquired the domain name primarily for the purpose of unfairly disrupting the business of the Complainant.

The Respondent has chosen to register a domain name that is identical to the Complainant’s gTLD domain names <goldmineint.com> and <goldmineint.net>. The domain name is also very similar to the Complainant’s unregistered trade mark GOLDMINE INTERNATIONAL. On the balance of probabilities the choice of the identical domain name and the similarity of the domain name in dispute and the Complainant’s unregistered trade marks are more than a co-incidence. Any Internet search would have disclosed the Complainant’s website to the Respondent at the time the domain name in dispute was registered by the Respondent on 16 August 2006. At that time the Complainant already an established Internet presence for almost three years.

On the balance of probabilities the Respondent registered or otherwise acquired the domain name primarily for the purpose of unfairly disrupting the business of the Complainant. 
  
In the circumstances, this Expert must conclude that the domain name in dispute is an Abusive Registration.

7.    Decision

This Expert therefore directs that the domain name < goldmineint.co.uk > shall be transferred to the Complainant.

         James Bridgeman                                                       Date:  20 February 2007