Nominet UK Dispute Resolution Service (DRS)
DRS Number 05516
Holiday Autos International Limited -v- Bluestone Ventures Pty Ltd
Decision of Independent Expert
1)	Parties
Complainant  : 	Holiday Autos International Limited
	London 
Respondent	  :	Bluestone Ventures Pty Ltd
Australia
2)	Domain Names
holidaysautos.co.uk (the Domain Name)
3)	Procedural Background
On the 6th March 2008 the Complaint was lodged with Nominet UK Limited (“Nominet”) and hard copy was received on the same day.  Nominet validated the Complaint on the 10th March 2008 and on the same day it was sent to the Respondent giving it 15 working days within which to lodge a Response and which was to be on or before the 3rd April 2008.   The Respondent did not respond and on the 4th April Nominet generated the “no response to Complaint” documents. On the 16th April 2008 the Complainant paid the appropriate fee for a Decision by an Expert pursuant to paragraph 6 of Nominet’s DRS Policy (“the Policy”).
On the 17th April 2008 Mr. Niall Lawless (“the Expert”) was selected and on 23rd April 2008 was formally appointed to act as Expert in this dispute, having confirmed that he knew of no reason why he could not properly accept the appointment and knew of no matters which ought to be drawn to the attention of the parties which might appear to call in to question his impartiality and / or independence.  He is required to give his Decision by 8th May 2008.
4)	Outstanding Formal / Procedural Issues
There are no outstanding formal or procedural issues.
5)	The Facts
The Complainant was incorporated under the laws of England and Wales as an unlimited liability company on 26th July 1994 and became a limited liability company on 4th August 1994. Since July 1996 it has been offering car hire services in the UK and elsewhere through the websites holidayautos.co.uk and holidayautos.com.  
The Complainant owns a UK trademark for HOLIDAY AUTOS in relation to car rental services (trade mark registration number 2146626). 
Prior to 26th March 2002 when the domain name “holidaysautos.co.uk” was registered by the Respondent the Complainant invested in promoting the HOLIDAY AUTOS brand.
The Complainant seeks transfer of the Domain Name holidaysautos.co.uk to them.
6)	The Parties’ contentions
The Complainant says that the Domain Name holidaysautos.co.uk controlled by the Respondent is an Abusive Registration under Nominet’s DRS Policy.
The Complainant has invested in promoting the HOLIDAY AUTOS brand and says that prior to 26th March 2002 when the domain name “holidaysautos.co.uk” was registered by the Respondent they had built up considerable goodwill and reputation and that their name is well-known in the UK and around the world. 
The Complainant says that the domain name “holidaysautos.co.uk” is almost identical, or very confusingly similar, visually, phonetically and conceptually to their HOLIDAY AUTOS name. They say that because the domain name is being used for a website displaying sponsored links to the websites of a number of car rental service providers in competition with the Complainant that the Respondent is using its goodwill to lure customers to its competitors. 
The Complainant says that because the Respondent intends to profit from mistyping (deliberate misdirection) of the Complainant’s domain name by linking to competitor’s sites this is evidence of circumstances falling within paragraph 3(a)(i)(C) of Nominet’s Policy, especially as the nature of the disruption is highly likely to result in the Respondent’s own financial gain. 
The Complainant says that the same evidence is indicative of circumstances falling within paragraph 3(a)(ii) of Nominet’s Policy and that the Respondent’s behavior is likely to constitute an Abusive Registration because the registration of the Domain Name and its subsequent use continues to take unfair advantage of, and was and continues to be unfairly detrimental to the Complainant’s rights. 
They also say that the Respondent is engaged in a pattern of registrations in which it has no apparent rights, for example barclaycad.co.uk and that their registration of holidaysautos.co.uk is part of a pattern and under paragraph 3(a)(iii) of Nominet’s DRS Policy is further evidence of Abusive Registration.
Because of the above the Complainant asks that the Expert issue an order directing the transfer of the Domain Name to the Complainant.
The Respondent has not responded.
7)	Discussions and Findings
7.1	General
 The Nominet DRS Policy requires that for a Complaint to succeed the Complainant must 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.
Rights include, but are not limited to, rights enforceable under English Law.  
In order to show that the Domain Name is an Abusive Registration, the Complainant must prove that the domain name either :-
i.	At the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant’s Rights. 
ii.	Has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainants Rights. 
The Complainant is required to prove to the Expert that the Claimant has Rights and that the Domain Name in the hands of the Respondent is an Abusive registration; both elements must be present.  
7.2	Complainant’s Rights
It is clear that the Complainant has Rights in the Domain Name holidayautos.co.uk, in the Trade Mark HOLIDAY AUTOS and Holiday Autos is in essence the main part of the company name Holiday Autos International Limited. 
The Complainant says that the domain name “holidaysautos.co.uk” is almost identical, or very confusingly similar, visually, phonetically and conceptually to their HOLIDAY AUTOS name.  I accept this and decide that the Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name. 
7.3   Abusive Registration
Under the Nominet DRS Policy Section 3 Evidence of Abusive Registration guidance is given as to what factors may evidence that the Domain Name is an Abusive Registration. These are circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily :-
•	3(a)(i)(C) for the purpose of unfairly disrupting the business of the Complainant (subsequently referred to as “Unfairly Disrupting the Complainant’s Business”).
•	3(a)(ii) 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 (subsequently referred to as “Using Domain Name to Confuse”).
•	3(a)(iii) The Complainant can demonstrate that the Respondent is engaged in a pattern of registrations where the Respondent is the registrant of domain names (under .uk or otherwise) which correspond to well-known names or trademarks in which the Respondent has no apparent rights, and the Domain Name is part of that pattern (subsequently referred to as “Pattern of Registrations”).
Unfairly Disrupting the Complainant’s Business. The Complainant says that the Respondent is using the Domain Name to lure customers to its competitors.  It is clear that inadvertently typing “holidaysautos.co.uk” when it was intended to type “holidayautos.co.uk” will result in being directed to a website which offers links to car rental service providers in competition with the Complainant.  They say that the same effect could also be the result where potential customers who are aware of the Complainants’ brand and business services have an imperfect recollection as to the correct alphabetic spelling of “holidayautos.co.uk”. The Complainant says that the Respondent intends to profit from mistyping and that this deliberate misdirection is unfairly disrupting its business.  
Because of the above I accept the Respondent is using the Domain Name to unfairly disrupt the Complainant’s business; but the test under Nominet’s DRS Policy 3(a)(i)(C) is not that the Domain Name is but that it was acquired for that purpose.  
In respect of this, the Complainant says that the Complainant’s sister company Holiday Autos Australia Pty Limited has been operating in Australia where the Respondent is located using the website address “holidayautos.com.au” and that the Complainant has owned an Australian registered trademark for HOLIDAY AUTOS since 30th April 1999 (the evidence to support this is not as compelling as the evidence in respect of the UK trademark).  They say that because of this the Respondent must have been aware of the Complainant’s name and rights when it registered the Domain Name in 2002.
The Respondent has not responded to the above and offered no evidence.  
I decide on the balance of probabilities that the Domain Name was acquired to unfairly disrupt the Complainant’s business and that under the test in Nominet’s DRS Policy 3(a)(i)(C) and that in the control of the Respondent the Domain Name is an Abusive Registration.
Using Domain Name to Confuse.  The Complainant says that the same evidence offered that the Domain Name being an Abusive Registration under Nominet’s DRS Policy 3(a)(i)(C) is also evidence of Abusive Registration under section 3(a)(ii) .  
The Respondent has not responded to the above and offered no evidence.  
The Domain Name is being used to offer services similar to those offered by the Complainant and because of that I do not doubt that the Domain Name is being used in a way which has confused people into believing that the Domain Name is operated by or connected with the Complainant.  
I decide on the balance of probabilities that even in the absence of evidence of actual confusion the Domain Name is being used in a way which has confused and will confuse people or businesses and that under the test in Nominet’s DRS Policy 3(a)(ii) and that in the control of the Respondent the Domain Name is an Abusive Registration.
Pattern of Registrations.  The Complainant says that the Respondent is engaged in a pattern of registering domain names corresponding to well-known names or trademarks in which he has no apparent rights and holidaysautos.co.uk is part of that pattern.  Under Nominet’s DRS Policy, if the Complainant can demonstrate that the Respondent is engaged in a pattern of such registrations that would be a factor to consider as evidence of an Abusive Registration.
The Claimant argues that the Respondent is engaged in a pattern of registrations in which it has no apparent rights, for example barclaycad.co.uk and googlee.co.uk and that their registration of holidaysautos.co.uk is part of a pattern and under paragraph 3(a)(iii) of Nominet’s DRS Policy is further evidence of Abusive Registration.
The Respondent has not responded to the above and offered no evidence.  
Pattern is a common English language word and in the Combined Chambers Dictionary Thesaurus is cited as meaning a “coherent series of occurrences”.  I do not accept on the evidence before me that the registrations of barclaycad.co.uk and googlee.co.uk meet this test. 
7.4  Conclusion
The Expert finds on the balance of probabilities that the Complainant has Rights in respect of a name identical or similar to the Domain Name but that the Complainant has proved, on the balance of probabilities, that the Domain Name, in the hands of the Respondent is an Abusive Registration.	
8)	Decision
For the reasons set out in detail above, having decided that the Domain Name in the hands of the Respondent is an Abusive Registration, the Expert directs that the Domain Name is transferred to the Complainant.

Niall Lawless, Nominet Expert
7th May 2008