Accountsmart Limited -v- Dave Beasley

Nominet UK Dispute Resolution Service

DRS 02971

Accountsmart Limited -v- Dave Beasley

Decision of Independent Expert

1.	Parties:

Complainant:	Accountsmart Limited
Country:	GB

Respondent:	Dave Beasley
Country:	GB

2.	Domain Names:

accountsmart.co.uk ("the Domain Name")

3.	Procedural Background:

The Complaint was received by Nominet on 16 September 2005.  Nominet validated the Complaint and sent a copy to the Respondent.

A Response was received by Nominet on 10 October 2005 and a copy forwarded to the Complainant.

A Reply was received by Nominet on 12 October 2005 and a copy forwarded to the Respondent.

On 4 November 2005 the Complainant paid Nominet the required fee for a decision of an Expert pursuant to paragraph 7 of the Nominet UK Dispute Resolution Service Policy ("the Policy").

Nominet invited the undersigned, Jason Rawkins ("the Expert"), to provide a decision on this case and duly appointed the undersigned as the Expert with effect from 11 November 2005.

4.	The Parties' Contentions:

Complainant:

The Complainant's submissions are as follows:

1.	The Complainant has rights in a trade mark which is identical or similar to the Domain Name:

(1)	The Complainant changed its name to Accountsmart Limited on 10 August 2005.

2.	The Domain Name is an Abusive Registration in the hands of the Respondent:

(1)	The Domain Name was primarily registered for the purposes of selling it to the Complainant or one of its competitors at a price greater than the Respondent's costs.

(2)	The Domain Name was registered by the Respondent on 11 August 2005, one day after Companies House issued the change of name certificate for the Complainant.

(3)	The www.accountsmart.co.uk address devolves to a website at www.sedo.com.  This site has a search facility which, if one enters "accountsmart", brings up a list of "accountsmart" domain names.  Of these the Domain Name is advertised for sale at £2,500 and any offer below £1,000 is rejected.  This amount exceeds any costs in the initial registration of the Domain Name.

Respondent:

The Respondent's submissions are as follows:
(1)	The Complainant asserts that it has rights in the name "Accountsmart", but provides absolutely no evidence of this.  It does not provide any documentation, trade mark certificates, newspaper cuttings, customer testimonials or even mention a trade mark registration, substantial national or local reputation, trading history, longevity or anything.  The only evidence of rights put forward by the Complainant is that it recently changed its name to Accountsmart Limited.  It has not been asserted that the company has even traded.

(2)	There is no possible way that the Respondent could have known of the Complainant company prior to registering the Domain Name so that there was clearly no intent to sell the Domain Name to the Complainant.

(3)	The Complaint constitutes an attempted reverse domain name hijacking.

Reply:

The Complainant's reply submissions are as follows:

(1)	Information regarding the registration and proposed registration of company names is freely available via the Companies House website at www.companieshouse.gov.uk.  The assertion by the Respondent that there was no possible way of knowing of the Complainant's name prior to the registration of the Domain Name is untrue.

(2)	The registration of the Domain Name was to make money as it was immediately put up for sale on a public website designed for this purpose.

5.	Discussion and Findings:

General
Paragraph 2 of the Policy provides that, to be successful, the Complainant must prove on the balance of probabilities that:
i	it 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 Registrations (as defined in paragraph 1 of the Policy).

Complainant's Rights

Disregarding the generic .co.uk suffix, the Domain Name is identical to the company name "Accountsmart" or, if one take the full company name of "Accountsmart Limited", then clearly very similar.

The further issue to be determined is whether the Complainant has Rights in respect of the name "Accountsmart".  On this, the Complainant relies on the fact that it changed its name to Accountsmart Limited on 10 August 2005.  The clear impression given by the Complaint is that the Complainant has not yet commenced trading under the name of Accountsmart Limited.  In any case, the Complainant has not made reference to having traded nor provided any relevant evidence.  Nor has the Complainant referred to any other facts, or included any other evidence, relevant to the question of whether or not it has Rights in the Accountsmart name.

The issue therefore boils down to whether or not the existence of a company with the name Accountsmart Limited is by itself sufficient to mean that the Complainant has Rights in the name "Accountsmart".  If the name of the Complainant had been more unusual then even very limited use of the name might have been sufficient for the Complainant to establish the necessary Rights.  In this case, however, the name is not particularly unusual and there is no assertion, nor evidence, of the Complainant having made any use at all of its changed name.  

I therefore find that the Complainant has failed to prove what is required under the first part of paragraph 2 of the Policy.

Reverse domain name hijacking

The Respondent alleges that the Complaint amounts to an attempted reverse domain name hijacking – i.e. using the Policy in bad faith in an attempt to deprive a registered domain name holder of a domain name.  In my opinion, whilst the Complaint has failed, there is no evidence to justify a conclusion that the Complaint was made in bad faith.  I therefore reject this allegation.

6.	Decision:

Having found that the Complainant does not have Rights in respect of a name or mark which is similar to the Domain Name, the Expert directs that no action should be taken on this Complaint.  The Expert rejects the Respondent's allegation that the Complaint amounts to attempted reverse domain name hijacking.

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Jason Rawkins	14 November 2005