Nominet UK Dispute Resolution Service

DRS 02926

Hartpury College v Realm Solutions Inc.

Decision of Independent Expert

1.	Parties

Complainant:		Hartpury College
Country:		United Kingdom

Respondent:		Realm Solutions Inc. 
Country:		Canada

2.	Domain Name

hartpurycollege.co.uk

3.	Procedural Background

On 1 September 2005 the Complainant lodged a complaint against the Respondent in relation to the Domain Name with Nominet UK under the Dispute Resolution Service Policy (“the DRS Policy”).  Hard copies of the Complaint were received by Nominet UK on 2 September 2005.  On 2 September 2005 Nominet sent the Complaint by hard copy and by email to the Respondent.  No response was received from the Respondent.

On 28 September 2005 Nominet UK emailed a further copy of the Complaint to the Respondent’s Registrant Mr Robert Montgomery at Rob@realmsolutions.com and also wrote to him by hard copy pointing out a Response had not been received by the deadline of 23 September and pointed out that the dispute would be referred to an independent expert if the Complainant paid the appropriate fees by 12 October 2005.

The present position is that no Response has yet been received.  The Complainant has paid the necessary fees of £750+VAT for an Expert Decision.  The Expert Mr Clive Duncan Thorne was selected on 11 October 2005.  He has completed a Declaration of impartiality and independence and indicated his independence and willingness to act.

In the Expert’s view there are no outstanding formal or procedural issues.

4.	The Facts

The Complainant asserts:-

1.	The Domain Name is identical or similar to “a name or mark in which I (sic) have rights”.

2.	The Domain Name presents a web page that purports to give information about the Respondent Hartpury College.  The Respondent has taken some information headings from the official Hartpury College website and linked it to spurious information and services that have nothing to do with the College or its business.  

3.	This is confusing to potential students and staff.  The Domain Name has been registered without the permission of the College and without consultation.  

4.	Hartpury College have indicated to the Respondent that they do not want the site to be active and have received no reply.

5.	The Parties’ Contentions

Complainant

There being no Response the only contentions are made by the Complainant.  

The Complainant submits that the Domain Name in the hands of the Respondent is an Abusive Registration for the reasons set out above.  

No evidence is produced by the Complainant of its rights relied upon nor to support the assertion that the Respondent’s web page accessed by its domain name is confusing to potential students and staff.

The Expert would have expected documentary evidence to have been submitted as required by section 3(c)(x) of the Nominet UK Procedure.  However, the Complainant specifically indicates in its Complaint that “I (sic) am not submitting documentation with this Complaint”.

6.	Discussion and Findings:

Section 2 of the DRS Policy states that a Respondent must submit to proceedings under the Nominet Dispute Resolution Service if a Complainant asserts to Nominet according to the DRS procedure 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 Complainant is required to prove to the Expert that both elements are present on the balance of probabilities.  

In the present case no evidence beyond the assertion referred to above, is given by the Complainant that it has rights in respect of a name or mark which is identical or similar to the Domain Name.  The Complainant has consciously chosen not to submit documentary evidence with the Complaint.  There is therefore no evidence before the Expert that the Complaint has rights in respect of a name or mark which is identical or similar to a Domain Name.  Evidence that could have been adduced might have included a copy of a trade mark registration certificate or evidence to support unregistered trade mark rights.  

The Expert has considered whether he should exercise his power under paragraph 13(a) of the Procedure to request further statements or documents (including documents which might evidence the trade mark rights asserted).  However, the Expert has decided not to do so for the following reasons:-

(i)	The Complainant has consciously decided not to submit documents with the Complaint.

(ii)	This is not a case where there is an absence of a few documents but rather a case where there are no documents at all before the Expert so as to prove the Complainant’s case.  The Expert does not consider it a proper exercise of his role to request all or any documents that might be required so as to enable the Complainant to prove its case.  

It follows that the Complainant has failed to prove under Section 2 of the DRS Policy that the Complainant has rights in respect of a name or mark which is identical or similar to the Domain Name. 

Accordingly, the Complainant’s Complaint fails.

7.	Decision

The Expert finds for the Respondent and does not make an order transferring the domain name “hartpurycollege.co.uk” to the Complainant.

Clive Duncan Thorne
Expert

31 October 2005