NOMINET UK DISPUTE RESOLUTION SERVICE

DRS 04324

DECISION OF INDEPENDENT EXPERT

KELSEYSBAR v MGI

1.	Parties
	Complainant	:	Kelseysbar
Country		:	GB

Respondent	:	MGI
Country		:	GB

2.	The Domain Name
kelseysbar.co.uk 

3.	Procedural Background
3.1	On 20 December 2006 the Complaint was lodged with Nominet in accordance with the Nominet UK Dispute Resolution Service Policy (“the Policy”).  Hard copies of the Complaint and its attachments were received in full by Nominet on 22 December 2006.
3.2	On 22 December 2006 Nominet validated the Complaint.   On the same day it sent a copy of the Complaint to the Respondent, and inter alia advised the Respondent that the Procedure for the conduct of proceedings under the Nominet UK Dispute Resolution Service (“the Procedure”) had been invoked and allowed the Respondent 15 working days within which to respond to the Complaint.
3.3	By 18 January 2007 no Response had been received from the Respondent by Nominet and the Complainant was advised accordingly.  
3.4	On 25 January 2007 the relevant fee was received by Nominet from the Complainant in order for the matter to be referred to an independent expert for a decision.   
3.5	On 26 January 2007 Bob Elliott was selected and duly appointed as Expert and the file was transmitted to the Expert pursuant to paragraph 11 of the Procedure.

4.	Outstanding Formal/Procedural Issues
4.1	None.

5.	The Facts
5.1	The Complainant, represented by Mr Jasminder Satsavia appears to be a business (the legal status of which is not explained) which runs a bar in Leamington Spa.  According to an internet search conducted by the Expert, it appears that the bar is popular with local university students, and has been in operation for at least the last two or three years.   
5.2	The Domain Name currently resolves to a website, which promotes Kelseysbar.  The website itself is comparatively basic. 
5.3	It appears from the Complaint itself, which is set out in full below, that the dispute as to the Domain Name has arisen because the Complainant reached an agreement with a third party to purchase the Domain Name, which was to be transferred to it, following a series of payments and that transfer has not happened, because of the ensuing bankruptcy of the third party and/or inability of the Complainant to make contact with the entities involved.
5.4	The Expert has been provided with no meaningful information as to the Respondent, “MGI”.
 
6.	The Parties’ Contentions
		Complainant’s Submissions
6.1	The Complaint, in its entirety is as follows:-
“The following complaint concerns the loss of control and breach of contract over the website for my business, www.kelseysbar.co.uk. 3 years ago, I the owner of the bar purchased the website with the company saversite.co.uk, and entered into agreement with the aforementioned, to provide an advertising space for the business. The agreement stated that after the allocated period of time, during which I provided payment by direct debit in regular, on time instalments, the website and address would be handed over to me with full access privileges and control. Saversite.co.uk proceeded to go through bankruptcy on 31/12/2004, during my contractual period, and since then I have been unable to establish contact with any person to recollect funds, and more importantly the ownership rights to my website. This means that for an extended period of time I have had no access, been unable to receive emails or any form of correspondence from potential customers via the website, leading to a substantial potential loss in profit. Furthermore I have been the recipient of warnings from police and the local council due to false advertising relevant to the business, as there is no possible method of altering the descriptions and appearance of my website. Following copious hassle in trying to deal with these serious problems, which distract from my time and other areas of business, it has come to my attention that the company saversite.co.uk fall under the name MGI. In an attempt to trace and contact these people I have reached a dead end as I seem to always be redirected back to saversite.co.uk once again. I cannot telephone, fax or email anyone directly, and I do not receive any response in return. It appears that www.iomart.co.uk hold the domain name themselves but again I come across severe difficulties in establishing contact”.
6.2	As regards the remedies requested, the Complaint is as follows:-
“I want to keep the name but receive full control of the website. Whether this means transferring the name to a different domain server or not is not an issue so long as the name is maintained along with access”.

	Respondent’s Submissions 
6.3	The Respondent has not filed a Response.  

7.	Discussion and Findings:
General
7.1	In order to succeed in these proceedings, paragraph 2.b of the 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 namely 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.
7.2	The Complaint is clearly extremely unsatisfactory, as to its vagueness, its lack of detail, and absence of any supporting material.   The Complainant was sent a standard form warning letter in relation to short or unsupported complaints by Nominet encouraging the Complainant to look at the Complaint again to see if it set out the required information, and could be supported by documentary evidence.  There is, however, no sign that the Complainant has done so (or if he did, it appears that he has not taken up Nominet’s suggestion to contact Nominet).  At the same time, the Respondent, “MGI” has not replied to the Complaint, and in accordance with paragraph 15.c of the Procedure, if a party does not comply with any provision in the Policy or the Procedure, the Expert is to draw such inferences from the party’s non-compliance as he or she considers appropriate.   

Complainant’s Rights
7.3	The Complainant Kelseysbar describes itself as a business.  In the Complaint, Mr Satsavia, who appears to be the proprietor of the bar, refers to himself in the first person singular and it appears that he and the Complainant are effectively synonymous.  Mr Satsavia provides a contact email address in the Complaint Form, which includes the name “kelseysbar”.  The website at the Domain Name itself suggests that there is an active business called Kelseysbar at the address given, and this is supported by the Expert’s own internet search.  Although the Expert has considerable reservations about the lack of detail provided, the test as to whether a Complainant has Rights under the Policy is not a rigorous one.  On balance, the Expert is prepared to find that the Complainant has succeeded in making out the first element of the test as set out in paragraph 2.a.i of the Policy, in establishing reputation and goodwill in at least a part of the United Kingdom in the use of the name Kelseysbar, which is identical to the Domain Name.

Abusive Registration
7.4	On any view, the Complaint is vague and unspecific on a number of accounts.  It appears to the Expert that Mr Satsavia’s principal assertion is that he entered into a contract with a company he describes as “saversite.co.uk” about 3 years ago, to purchase the Domain Name, and to set up a website in order to advertise his business.  After a period of time, the Domain Name (and apparently the associated website) would be handed over to the Complainant, providing the Complainant made a number of payments.  However, “saversite.co.uk” apparently went into “bankruptcy” on 31 December 2004, and since then the Complainant has been unable to make contact with anyone in order to assist in transferring the Domain Name, or control of the website, to the Complainant.   
7.5	Mr Satsavia then says, despite his best efforts in trying to address the problems which had arisen (including warnings from the Police and the local council in relation to the content of the website), it came to Mr Satsavia’s attention “that the company saversite.co.uk fall under the name MGI”.   The meaning of this sentence is not clear.   There is no other explanation of who or what “MGI” is.  The address given for “MGI” is Iomart Limited, which is a company which the Expert is aware provides both web hosting and domain name purchasing services, through its Easyspace website.
7.6	Although the Complaint refers on a number of occasions to attempts to make contact with “these people” and Iomart Limited, there is no evidence provided of any such communications. 
7.7	The Complaint makes no attempt to try to identify any of the non-exhaustive list of factors which might be evidence that the Domain Name is an Abusive Registration which are set out in paragraph 3 of the Policy.  However, it appears that the nub of the Complaint is that the Domain Name was registered as a result of a relationship between the Complainant and the Respondent, and the Complainant has been using the Domain Name registration exclusively, and paid for the registration and/or renewal of the Domain Name registration, which if established would fall within paragraph 3.a.v of the Policy.
7.8	It seems to the Expert that the question to be decided in this case is whether, despite the vague and unparticularised nature of the Complaint, the Expert is prepared to give the Complainant the “benefit of the doubt” in this respect, by deciding that this factor has been sufficiently made out on the balance of probabilities.  Although there has been no reply from the Respondent, this does not mean that the Complainant is automatically entitled to succeed in its Complaint.  
7.9	The Complaint provides only a sparse explanation of the contractual arrangements.  It does not adequately explain the relationship between the “company saversite.co.uk” and the unidentified entity “MGI”.  No documentary evidence of any kind is provided, despite the assistance which was available to the Complainant on Nominet’s website, and despite the warning as to the possible inadequacies in the Complaint which Nominet sent out to this Complainant.   
7.10	Nevertheless, in this particular case, the Expert is left with the impression that the explanation which the Complainant has provided is a plausible one.  “Kelseysbar” appears to be a bona fide operation, which has been in existence for at least 2 or 3 years.  The date given by the Complainant of the original arrangement with “saversite.co.uk” (3 years ago) coincides with the registration date of 1 October 2003 for the Domain Name.  The website in question, although relatively basic, is clearly connected to Kelseysbar in Leamington Spa.  On balance, it would appear that the website was created and Domain Name acquired by a third party (presumably MGI, or a predecessor) on behalf of Kelseysbar.  It would not be unusual for such an arrangement to be on at least an implicit (if not express) understanding that Kelseysbar was beneficially entitled to the ownership of the Domain Name, providing it met its contractual obligations as to payment.  
7.11	Although the Expert is not in a position to know whether Kelseysbar has in fact performed its contractual obligations, there has been no reply from the Respondent.   If the Respondent had wished to assert that the Complainant was not entitled to the Domain Name (for instance, because it had not been paid) it had an opportunity to do so, of which it did not avail itself.  In the circumstances, the Expert considers that he is entitled to find, on the balance of probabilities, that the factor set out in paragraph 3.a.v of the Policy has been made out and that the Domain Name, in the hands of the Respondent, is an Abusive Registration.  
7.12	Therefore, the Complaint succeeds.

8.	Decision
8.1	The Expert finds that the Complainant has Rights in the name or mark Kelseysbar, which is identical to the Domain Name.  The Expert further finds that the Domain Name, in the hands of the Respondent, is an Abusive Registration.
8.2	The Expert therefore decides that the Domain Name should be transferred to the Complainant.

Bob Elliott
1 February 2007