Nominet UK Dispute Resolution Service

DRS 4438

Kiley-Hale Solicitors v Personal Injury Management Services

Decision of Independent Expert

1.	Parties
 
Complainant:
 
Kiley-Hale Solicitors
UK
 
Respondent: 
 
Personal Injury Management Services
UK
 
2.	Domain Name
 
<childrensinjuries.co.uk>
 
3.	Procedural Background
 
A Complaint in respect of <childrensinjuries.co.uk> (the “Domain Name”) under Nominet UK's Dispute Resolution Service Policy (the “Policy") was received from the Complainant and forwarded to the Respondent by Nominet on 6 February 2007.  No Response was received from the Respondent.
 
On 1 March 2007 Nominet notified the parties that it would appoint an Expert to determine the dispute on receipt from the Complainant of the applicable fees in accordance with paragraph 5d of Nominet's Procedure for the conduct of proceedings under the Dispute Resolution Service (the “Procedure”).  The Complaint was referred for a decision by an Independent Expert following payment by the Complainant of the required fee on 5 March 2007.  I was appointed as Independent Expert as of 12 March 2007 and confirmed to Nominet that I was independent of the parties and knew of no facts or circumstances that might call into question my independence in the eyes of the parties.
 
4.	Outstanding Formal/Procedural Issues (if any)
 
Although no response was filed by the Respondent, from my perusal of the Nominet file it appears that Nominet has taken all appropriate steps under paragraph 2 of the Procedure to notify the Complaint to the Respondent at the address held on Nominet’s database and by email to the administrative contact for the Respondent.

On 15 March 2007 Nominet notified me that the Complainant had submitted a non-standard submission under paragraph 13(b) of the Procedure.  The Complainant explained that there was an exceptional need for the non-standard submission on the basis that it contained information that should be considered by the expert as it directly related to important, relevant and ongoing abuse of the domain name.  I agreed to see the non-standard submission and decide to what extent it should be taken into account in reaching my decision.  In the event, I did not find the non-standard submission of any assistance in reaching my decision.
 
5.	The Facts
 
At the time of the Complaint, the Complainant was a firm of solicitors providing advice in relation to personal injury claims.  The sole principal of the firm was Steven Hale.  

According to the Nominet WhoIs database, the Domain Name was registered on 22 November 2002.  At the date of the Complaint the Domain Name resolved to a web page headed “ChildrensInjuries.co.uk” offering help to parents to claim compensation for injuries to their children and stating that the website was maintained “by the specialist children’s injuries division of www.accidentclaimsadvice.co.uk”.
 
6.	The Parties’ Contentions
 
Complainant
 
A summary of the contentions made in the Complaint is as follows:

The Complainant purchased the Domain Name and another domain name, <accidentclaimsadvice.co.uk>, from Derek Avianco for the sum of £4,250 by an agreement dated 11 August 2006.  The Complainant had previously been given access to the control panel of the hosting site, Donhost, on or shortly after 2 August 2006 when Mr Avianco had first offered the domain names for sale.

Following the purchase of the Domain Name, the website was amended to show a new contact number (0845 094 0863) and all enquiries from the website at www.childrensinjuries.co.uk were directed to the Complainant firm of solicitors via its halelegal.com domain.  From August 2006 until January 2007, the Complainant had free and uninterrupted access to the Domain Name and all enquiries received from the website were dealt with by the Complainant solicitors.  Over that period, the Complainant spent approximately £2,500 on advertising the website and optimising and promoting the Complainant’s business by means of the website.  

On 23 November 2006, the Complainant sent to Derek Avianco a cheque for the sum of £16.43 by way of payment for the renewal of the registration of the Domain Name.  

On or about 10 January 2007, the Respondent took back control of the Domain Name and amended the website to direct enquiries to a different telephone number (0845 6100 609) and to direct enquiries to 50 Leys Avenue, Letchworth.  The Respondent has deleted all references to the Complainant on the website.

The actions of the Respondent are in breach of the agreement for the sale of the Domain Name to the Complainant.  Through the Respondent taking control of the website and diverting business away from the Complainant there is continuing interference with the business of the Complainant.  

Finally, the Complainant asserts that there are public policy issues in advice in relation to personal injuries apparently now being given by an unregulated agent.

In its non-standard submission, the Complainant pointed out, first, that since no response to the Complaint had been filed there was no dispute that the Complainant had paid for the renewal of the Domain Name.  The Complainant also invited the expert to cite and to note that the contact number was the same as that connected with Mr Avianco’s other business interests, namely Sticky Vision and 4-Mortgages.  The Complainant suggested that this conduct exemplified continuing abuse.

The non-standard submission also suggested that the Complaint and a further complaint apparently made by the Complainant in respect of another domain name, presumably <accidentclaimsadvice.co.uk> should be consolidated.  Nominet treated this suggestion as a request to consolidate the two domain name disputes under paragraph 12 of the Procedure but decided that it was not appropriate to do so.
 
Respondent
 
The Respondent has not filed any response to the Complaint.  
 
7.	Discussion and Findings:
 
General
 
Although the Respondent failed to submit a Response to the Complaint, there is no scope for a decision in default under the Policy and Procedure.  Under Paragraph 15c of the Procedure, I am entitled to draw such inferences from the Respondent's non-compliance with the Procedure as I consider appropriate.  The Complainant is still required, however, under clause 2b of the Policy to prove to the Expert on the balance of probabilities 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
 
“Rights” are defined in the Policy and in the Procedure.  Rights “includes, but is not limited to, rights enforceable under English law”.  
 
The Complainant does not claim to have any registered rights in the nature of a trade mark or, unsurprisingly, any rights in the name CHILDRENSINJURIES.  The only rights that the Complainant asserts are in the Domain Name itself - <childrensinjuries.co.uk>.  It claims first to have purchased the Domain Name from the Respondent (with another domain name) for the sum of £4,250.  The Complainant has produced a copy of an agreement dated 11 August 2006 that does on its face provide for the sale of the Domain Name and <accidentclaimsadvice.co.uk> for the sum of £4,250.  The agreement is between Mr Derek Avianco of Accident Claims Advice of 2 Ossian Mews, Ossian Road, London N4 4DT and Mr Steven James Hale of the Complainant firm of solicitors.  It is signed by both parties.  

There does appear to be some confusion as to names and addresses.  Mr Avianco is not, of course, the Respondent to this Complaint or, on the face of it the registrant of the Domain Name.  However, according to the print-out from the Nominet database provided to me, the Contact for the Registrant, Personal Injury Management Services, is Derek Avianco of 12a Cross Street, Camborne TR14 8EX.  

The Complainant has also produced:

1)	a copy of an invoice dated 21 November 2006 from Donhost Limited (the Admin Contact for the Domain Name in the Nominet database) to 4-Mortgages of 2 Ossian Mews, London N4 4DT for the renewal of the registration of the Domain Name; and
2)	a copy of a letter from the Complainant to Derek Avianco, Marketing Director, at 50 Leys Avenue, Letchworth, Herts SG6 3EQ, enclosing a copy of that invoice and a cheque for £16.43 in payment of the renewal fee.

Apart from its evidence of its purchase of the Domain Name, the Complainant has annexed to the complaint evidence of use of the Domain Name by the Complainant between August 2006 and January 2007.  This comprises citing the website www.childrensinjuries.co.uk on the Complainant’s headed notepaper and arranging for the website to be listed against the Complainant on various online directories featuring personal injury lawyers. 

This is something of an unusual case and the Nominet Policy and Procedure are not naturally suited to determine what appears on its face to be a contractual dispute as to the ownership of the Domain Name.  It does seem to me, however, that the evidence put forward by the Complainant does support its case that it purchased the Domain Name and used it and obtained business from that use until the website content was changed and access to the website blocked in January 2007.  

The Complaint is signed by Steven Hale on behalf of Kiley-Hale Solicitors.  The sample of headed notepaper of Kiley-Hale Solicitors annexed to the Complaint indicates that Steven James Hale is the sole principal of Kiley-Hale.  I have made a search of the website of The Law Society of England & Wales and established that Steven James Hale is a practising solicitor but that he is a partner of Davison Flynn Boscoe & Partners of 18 Hamilton Square, Birkenhead, Merseyside CH41 6AX.  Kiley-Hale is not listed as a firm of solicitors on the Law Society website but the results of my Internet search suggest that Kiley-Hale is now associated with Davison Flynn Boscoe & Partners.  

The Complaint includes the required declaration that “The information contained in the complaint is to the best of my knowledge true and complete.  This complaint is not being presented in bad faith and the matters stated in this complaint comply with the Procedure and applicable law.”

There was no response to the Complaint in this case but I draw only limited inferences from the fact that there has been no denial of the facts asserted by the Complainant since it appears that the letter sending the copy Complaint was returned by the Royal Mail.  I am satisfied as I indicated earlier that Nominet took appropriate steps under paragraph 2 of the Procedure to notify the Complaint to the Respondent by sending it to the address for the Respondent in its database and by sending it by email to the Admin Contact.  Paragraph 4.1 of the Nominet Terms and Conditions of Domain Name Registration provides that a registrant must keep Nominet notified of its correct name, postal address and any contact details.  

I find it surprising that the Complainant has not put forward any correspondence with the Respondent complaining about the website content being changed and its access to the web host being blocked.  On the other hand, there is no obligation on a Complainant to write to a Respondent before filing a complaint under the Policy.  

In the circumstances, I find the question as to whether the Complainant has Rights in the Domain Name to be finely balanced.  On the balance of probabilities, however, I am satisfied on the basis of the evidence put forward by the Complainant, supported by the declarations in the Complaint signed by Mr Hale, that the Complainant does have Rights in respect of CHILDRENSINJURIES.CO.UK and that it does therefore have Rights in a name or mark which is identical to the Domain Name.
 
Abusive Registration
 
Paragraph 1 of the 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.
 
A non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration is set out in paragraph 3 of the Policy.  These include:
 
3ai	Circumstances indicating that the Registrant has registered or otherwise acquired the Domain Name primarily:

C.	for the purpose of unfairly disrupting the business of the Complainant; and

3aii	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; and

3av	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.

There is no issue in this case as to the circumstances in which the Domain Name was registered or acquired by the Respondent.  Paragraph 3av does not directly assist the Complainant since the Domain Name was not registered as a result of a relationship between the Complainant and the Respondent.  However, since the Domain Name was acquired by the Complainant pursuant to an agreement between the parties and there is evidence that the Complainant did pay for the renewal of the Domain Name this does lend some support to the Complainant’s case.  

The question of Abusive Registration principally turns, however, on whether the Domain Name has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights.

On the basis of the evidence put forward by the Complainant, it is apparent that since the website content was changed in January 2007, Internet users visiting the website are no longer directed to the Complainant but to another contact telephone number and address apparently associated with the Respondent.  This is inevitably disrupting the business of the Complainant since it is no longer receiving the average five to seven enquiries per week via the website that it was over the period from August 2006 to January 2007.  

Internet users who visit the website as a result of finding the Complainant linked to the website address on a listing of personal injury advisers are likely to be confused into believing that the Domain Name is registered to or operated by the Complainant or otherwise associated with the Complainant.  To the extent that the Complainant has established Rights in the Domain Name as I have found then the Respondent’s re-appropriation of the website is bound to be unfairly detrimental to those Rights.

In the circumstances, I consider that the Domain Name has been used by the Respondent in a manner which takes unfair advantage of or is unfairly detrimental to the Complainant’s Rights in CHILDRENSINJURIES.CO.UK and that the Domain Name, in the hands of the Respondent, is therefore an Abusive Registration.

8.	Decision
 
Accordingly, I find that the Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name and that the Domain Name in the hands of the Respondent is an Abusive Registration.  I therefore determine that the Domain Name be transferred to the Complainant Kiley-Hale Solicitors.

Ian Lowe
26 March 2007