Nominet UK Dispute Resolution Service

DRS 5112

Liquitech – v – Richard Birch

Decision of Independent Expert

1.	Parties

Complainant:

Liquitech
GB

Respondent: 

Richard Birch
GB

2.	Domain Name

<liquitech.co.uk>

3.	Procedural Background

A Complaint in respect of <liquitech.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 2 October 2007.  No Response was received from the Respondent.

On 25 October 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 8 November 2007.  I was appointed as Independent Expert as of 15 November 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)

There are no outstanding formal or procedural issues.  

5.	The Facts

The Complainant is named as Liquitech.  Liquitech Limited was incorporated on 29 October 2003.

According to the Nominet WhoIs database, the Domain Name was registered on 23 October 2003.  At the date of the Complaint the Domain Name resolved to a web page that stated: “The site liquitech.co.uk has been disabled.  Please contact support.”  

6.	The Parties’ Contentions

Complainant

The Complaint, in full, is as follows:

“Myself and Marie Morgan are Directors and owners of Liquitech Limited and have been trading as such, since Liquitech Limited was established. Richard Liam Birch was hired by us to set up our email etc. The last contact we had with him was July 2007 when he was paid £1000.00 by us, this being the second cheque paid making a total of £2250.00 to complete our web site design. This he has not done and since then we have been unable to contact him. He does not answer our emails and the contact telephone numbers we have do not receive in-coming calls. We have also visited the address we have, in a bid to sort this situation but no one was present.

In addition to this our email (whatever@liquitech.co.uk) has 'crashed' and we now can not send or receive emails. We have contacted Heart Internet who host Liquitech.co.uk and they have advised us to contact yourselves. As you may appreciate we are running a business and rely heavily upon emails as a contact between ourselves and clients. 

Richard Birch has made no attempt to contact us and clearly has no desire to do so as he has changed all his contact details and not advised us. This is totally unacceptable behaviour. We would like to transfer liquitech.co.uk to ourselves so we can deal direct with Heart Internet. We can certainly prove that we are Liquitech Limited and can supply you with Company Reg, VAT number etc if required, and copies of invoices that Richard Liam Birch or Communication Initiatives has issued to us with regard to liquitech.co.uk.”

No documentary evidence was filed with the Complaint.

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 but the Complainant is still required 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.

The Complaint is very short.  The Complainant did not file any documentary evidence in support.  Nominet’s standard practice in cases where a complaint is fewer than 15 lines long (the Complaint was 16 lines) and/or the complaint has no evidence attached to it (the Complaint had none) is to send to the Complainant a copy of the “Chairman’s letter”.  This is sent when Nominet acknowledge receipt of the Complaint and inform the Complainant that it has been sent to the Respondent.  It is a standard letter from Tony Willoughby, the Chairman of the Nominet DRS Expert Panel, warning Complainants who file short and/or unsupported complaints of the risks involved in providing very little information for the Expert to go on and/or no evidence to back up what is alleged.  

The letter reminds Complainants that they have to prove their case on the balance of probabilities as to the two elements set out above and that anything the Complainant wants the Expert to consider should be set out in the Complaint.

The letter invites Complainants to whom the letter is sent to review their Complaint to see if it sets out the required information, adequately supported by documentary evidence and, if it does not, to contact Nominet to discuss the options open to them.  These would presumably include withdrawing the Complaint at that early stage and filing a new Complaint including additional information supported by documentary evidence.  

It appears that the Complainant did not respond to the Chairman’s letter or contact Nominet in connection with it.

In any event, the Policy sets out what is required to be proved for a complaint to succeed and Nominet provides detailed help on its website as to how a complaint should be formulated and the relevant issues addressed.

Although “Liquitech” is named as the Complainant, I assume that this was intended to be Liquitech Limited.

Complainants’ Rights

“Rights” are defined in the Policy and in the Procedure.  Rights “includes, but is not limited to, rights enforceable under English law.”

The Complaint makes no attempt to identify what Rights the Complainant has in a name that is similar or identical to the Domain Name.  I assume that it has no registered trade mark rights.  The Complaint states that the “Directors and owners of Liquitech Limited …have been trading as such, since Liquitech Limited was established.”  It does not say when that was or what is the business of the Complainant or what that trade has amounted to or what, for example, has been the extent of its marketing and trading activity.  

I should have been quite prepared to assess whether any such activity had generated sufficient goodwill or reputation in the name Liquitech to give rise to rights (in passing off) under English law but I cannot do so without any information or evidence whatsoever.

The Complaint also says that the Complainant hired “Richard Liam Birch” – presumably the Respondent – to “set up our email etc” and that he was paid to “complete our web site design.  This he has not done…”.  But the Complaint does not say whether a web site was ever set up or whether the Complainant ever operated a web site using the Domain Name or what it used it for or to what extent.

All the Complaint does say is that “…our email (whatever@liquitech.co.uk) has ‘crashed’ and we now can not send or receive emails…we are running a business and rely heavily upon emails as a contact between ourselves and clients.”  It appears from this that the Complainant has used the Domain Name to address a mail exchange server but, again, there is no information or evidence as to when that started, what volume of email traffic there has been or anything else that might support the existence of Rights in a name identical or similar to the Domain Name or in the Domain Name itself.

The Complainant may have some contractual right to the Domain Name but there is no specific information in the Complaint or any other evidence to support this.

Accordingly, I find that the Complainant has failed to prove on the balance of probabilities that it has Rights in a name that is identical or similar to the Domain name.

Abusive Registration

That finding would be sufficient to dispose of the Complaint but I should add a comment in relation to the second requirement that the Complainant demonstrates that the Domain Name, in the hands of the Respondent, is an 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.

The Complaint does not specifically address the question of Abusive Registration at all.  A non-exhaustive list of factors that may be evidence that the Domain Name is an Abusive Registration is set out in paragraph 3 of the Policy.  These include:

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.

This provision was added to the list of indicative factors in order to deal with cases where, classically, a web designer registered a Domain Name on behalf of a client (who paid for it) but failed to transfer the Domain Name into the name of its client and then became uncontactable or unco-operative later.  

In this case, despite the Policy spelling out this factor, the Complaint provides no specific information on the matters set out in this provision: no supporting evidence either of use of the Domain Name or of payment for registration of the Domain Name or of any correspondence with the Respondent in relation to the Domain Name.

In the circumstances, the Complainant has also failed to establish that the Domain Name, in the hands of the Respondent, is an Abusive Registration.

8.	Decision

I find that the Complainant has failed to show on the balance of probabilities that it has Rights in a name which is identical or similar to the Domain Name or that the Domain Name in the hands of the Respondent is an Abusive Registration.  I therefore determine that no action be taken in respect of the Complaint.

Ian Lowe
29 November 2007