Nominet UK Dispute Resolution Service

DRS Number 4461

Obriss Ltd
v

Mr Stefan Bersteiner

Decision of Independent Expert

1.	Parties

Complainant:		Obriss Ltd
Country:		GB

Respondent:		Mr Stefan Bersteiner
Country:		Austria

2.	Domain Name

homoactive.co.uk -  registered on 25 March 2006.           .

3.	Procedural Background

The Complaint was lodged with Nominet on 12 December 2006.  Nominet validated the Complaint and notified the Respondent of the relevant Complaint on 14 December 2006 and informed the Respondent that it had 15 days within which to lodge a Response. 

No response was received from the Respondent.

No mediation having been possible, on 21 March 2007 the dispute was referred for a decision by an Independent Expert following payment by the Complainant of the required fee for a decision of an Expert pursuant to paragraph 6 of the Nominet UK Dispute Resolution Service Policy (“the Policy”).

David Flint, the undersigned, (“the Expert”) confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as expert in this case and further confirmed that he knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question his independence and/or impartiality.

4.	Outstanding Formal/Procedural Issues (if any)

None
5.	The Facts

The Complainant

As Obriss is the holder of the trademark HOMOACTIVE and homoactive.co.uk was owned by us but before we could renew it it was snatched by this guy. We contacted the new registered owner (we used to own it but missed the renewal date) and he gave nominet the details above as his details - however we have written to him there to find that these are not accurate.

The Respondent

No response was received

6.	The Parties’ Contentions

Complainant

I confirm that Domain Name(s) in dispute are identical or similar to a name or mark in which I have Rights.

I confirm that Domain Name(s) in the hands of the Respondent is an Abusive Registration.

Please transfer this back into our name as soon as possible. Please also let me know if there is anything else we need to do to complete this process. Thank you.

Respondent

No response

7.	Discussion and Findings:

General

To succeed in this Complaint the Complainant has to prove to the Expert pursuant to paragraph 2 of the Policy on the balance of probabilities, first, that it has rights (as defined in paragraph 1 of the Policy) in respect of a name or mark identical or similar to the Domain Name and, secondly, that the Domain Name, in the hands of the Respondent, is an Abusive Registration (as defined in paragraph 1 of the Policy).

Complainant’s Rights

Other than a bald unsupported statement, no evidence has been produced by the Complainant that he has any rights whatsoever in the name "homoactive". Accordingly the Expert finds the first limb of the test unsatisfied.

Abusive Registration

As the Complainant has failed to show that it has any rights in the name, the question of abusive registration thereof by the Respondent need not be addressed

8.	Decision

In light of the foregoing findings, namely that the Complainant has failed to show that it has rights in respect of a name or mark which is identical to the Domain Name, the Expert rejects the Complaint.

David Flint

27 March 2007