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Nominet UK Dispute Resolution Service |
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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Kit Heath Ltd v Chao Investments Ltd [2007] DRS 4764 (24 July 2007) URL: http://www.bailii.org/uk/cases/DRS/2007/4764.html Cite as: [2007] DRS 4764 |
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Nominet UK Dispute Resolution Service
DRS Number 4764
Kit Heath Ltd v Chao Investments Limited
Decision of Independent Expert
Complainant: Kit Heath Ltd
Country: GB
Respondent: Chao Investments Limited
Country: NZ
kitheath.co.uk ("the Domain Name")
| 7 June 2007: | Complaint lodged with Nominet electronically |
| 8 June 2007: | Hardcopy complaint received by Nominet |
| 11 June 2007: | Nominet forwarded complaint to Respondent |
| 4 July 2007: | No response received by Nominet |
On 24 July 2007 I, Adam Taylor, the undersigned, confirmed to Nominet that I knew of no reason why I could not properly accept the invitation to act as expert in this case and further confirmed that I knew of no matters that ought to be drawn to the attention of the parties which might appear to call into question my independence and/or impartiality.
None
The Complainant is a designer and supplier of silver jewellery trading under the name "Kit Heath". It was incorporated on 1 March 2002. For some years prior to that the proprietors of the Complainant had traded as a partnership under the same name.
There is a UK registered trade mark number 2140144 for the stylised words "KIT HEATH" dated 15 July 1997 owned by the partnership.
The Respondent registered the Domain Name on 16 July 2004.
As of 8 June 2007 the Domain Name resolved to a directory website. The categories listed included: "Kit Heath Jewellery" and "Silver Jewellery".
Complaint
The complaint is extremely brief and is reproduced here in full:
"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.
The complainant has rights to this domain because it is a registered at Companies House under the name Kit Heath Ltd. It has the following registered trade marks copies of the printouts from the Patent Office will be sent in the post. It provides goods under this name and a brochure will be sent in the post. It trades under this name and has done for over 10 years a copy of the company letterhead and Companies House Certificate of incorporation will be posted."
Response
The Respondent did not file a response.
General
To succeed, the Complainant has to prove in accordance with paragraph 2 of the DRS Policy on the balance of probabilities, first, that it has rights (as defined in paragraph 1 of the DRS Policy) in respect of a name or mark identical or similar to the Domain Name and, second, that the Domain Name, in the hands of the Respondent, is an abusive registration (as defined in paragraph 1 of the DRS Policy).
Complainant's Rights
The registered trade mark relied upon by the Complainant is in the name of the former partnership of the proprietors of the Complainant and not of the Complainant itself. It is not, however, necessary to consider whether the Complainant can rely on that trade mark because I am satisfied that the Complainant has acquired common law rights in the name "KIT HEATH". The Complainant has been trading under that distinctive name since at least 2002.
It is well established that the threshold as to rights is a low one and the Respondent has not appeared in these proceedings to contest the Complainant's assertions as to rights.
The Complainant has established rights in a name or mark which is identical to the Domain Name, disregarding the domain suffix.
Abusive Registration
Is the Domain Name an abusive registration in the hands of the Respondent? Paragraph 1 of the DRS 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."
Paragraph 3(c) of the Policy states: "There shall be a presumption of Abusive Registration if the Complainant proves that Respondent has been found to have made an Abusive Registration in three (3) or more Dispute Resolution Service cases in the two (2) years before the Complaint was filed. This presumption can be rebutted (see paragraph 4 (c))."
This provision applies here as there have been at least 12 successful DRS cases against the Respondent within the past two years.
Paragraph 4c states: "If paragraph 3(c) applies, to succeed the Respondent must rebut the presumption by proving in the Response that the registration of the Domain Name is not an Abusive Registration."
The Respondent has not filed a response and has therefore failed to rebut the presumption of abusive registration.
The domain nameshould be transferred to the Complainant.
Adam Taylor Date
