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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Huxley Associates Limited v. Victoria Davie
Case No. D2002-0476
1. The Parties
The Complainant in this administrative proceeding is Huxley Associates Ltd. of 35 Saint Thomas Street, London, W1A 2SA, United Kingdom represented by Mr. Greg Morris of the Complainant’s Legal Department.
The Respondent is Victoria Davies, of 17 Mimosa Close, Great Hay, Telford, Shropshire, TF7 4DU, United Kingdom.
2. The Domain Names and Registrar
The domain names in issue are <huxleyfinance.com> and <huxley-finance.com> ("the Domain Names"), the Registrar of which is Tucows, Inc. of 96 Mowat Avenue, Toronto, Ontario M6K 3M1, Canada ("Tucows").
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received on May 21, 2002, an e-mail version of the Complaint, and on May 23, 2002, a hard copy of the Complaint and accompanying documents. The Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy ("the Policy") and the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules"). The Complainant made the required payment to the Center. On May 28, 2002, the Center formally notified the Respondent that this administrative proceeding had been commenced, and that date is the formal date of the commencement of this administrative proceeding. A Response was filed on June 16, 2002, by e-mail and on June 20, 2002, as a hard copy.
On May 24, 2002, the Center received from Tucows its Verification Response confirming that the registrant is Victoria Davis (sic), of the address given above for the Respondent, and stating that the Administrative and Billing Contact is "Davis, Victoria" at the Respondent’s address. The Technical Contact is "The Hostmaster" of 5, Jaxons Court, Hallgate, Wigan, Gt. Manchester WN1 1LR, United Kingdom. The Respondent has subsequently confirmed that the correct spelling of her surname is Davies.
On June 24, 2002, this Panelist was appointed by the Center. The Panelist has filed a Statement of Acceptance and Declaration of Impartiality, and his decision is scheduled to be forwarded to the Center by July 8, 2002.
4. Factual Background
(a) The Domain Names were first registered on the following dates:
<huxleyfinance.com> November 19, 1999
<huxley-finance.com> December 8, 1999.
(b) The Complainant was incorporated on August 25, 1995, and carries on business as a recruitment consultancy providing recruitment services in the United Kingdom and across Europe in the field of information technology. In particular the Complainant places information technology professionals into permanent and temporary positions in client companies.
(c) Since October 1999 a trading division of the Complainant has carried on business initially under the name Huxley Banking and Finance, and since April 2000 as Huxley Finance.
(d) The Complainant is the registered owner of the trademark HUXLEY (Great Britain and Northern Ireland Trademark No. 2144564 (Class 35) registered as of September 9, 1997, and European Community Trademark No. 001633403 registered as of June 29, 2001) ("the Trade Mark"). The copy of the registration certificate for the Trade Mark indicates that it is registered in respect of personnel recruitment services.
(e) The Complainant employed one Jagdeep Ghattaura as a Recruitment Consultant between July 13, 1998, and May 12, 2000, when he resigned.
(f) Jagdeep Ghattaura is the brother of Al Ghattaura, whose wife is the Respondent.
(g) Al Ghattaura is the sole director and shareholder of a company called Network Cabling Limited, which was incorporated on March 15, 2001. Its business is said to be "voice and data cable installations".
(h) A company called Huxley Finance Limited was incorporated on March 30, 2002, with Al Ghattaura as a director and the Respondent as Company Secretary.
5. Parties’ Contentions
The Complainant asserts, inter alia, as follows:
(i) The Complainant has long considered that a web-based service would become Huxley Finance’s main means of conducting business. The Complainant anticipates that client companies will come to use the Huxley Finance web-site to browse through available applicants or to transmit the details of further vacancies. The Complainant further anticipates that candidates will come to recognize the Huxley Finance web-site as a quick and reliable mechanism through which they will be able to secure employment. It has for some time been the Complainant’s belief that an individual candidate or client searching for the Huxley Finance web-site would typically expect to access it via one of the following Internet domain names; <huxleyfinance.co.uk>, <huxleyfinance.com>, <huxley-finance.co.uk> or <huxley-finance.com>.
(ii) Accordingly between April and November 2001 the Complainant looked into the possibility of acquiring Internet domain names bearing the name Huxley Finance, in particular the domain names; <huxleyfinance.co.uk> and <huxleyfinance.com>. Through its inquiries the Complainant was able to establish that the domain names <huxleyfinance.co.uk> and <huxleyfinance.com> had already been registered and that their registered owner was the Respondent.
(iii) During November of 2001 the Complainant wrote to the Respondent inquiring about the possibility of acquiring the above domain names. In response the Complainant received correspondence from Network Cabling Limited (‘Network Cabling’) stating that it would be prepared to sell the domain names <huxleyfinance.co.uk> and <huxleyfinance.com> for the sum of Ј10,000. The Complainant made no response to this letter.
(iv) Early in 2002 the Complainant again looked into the possibility of acquiring ownership of the domain names <huxleyfinance.co.uk> and <huxleyfinance.com>. By this time ownership of these domain names had changed hands, their new registered owner being a Mr. J Ghattaura (‘Jagdeep Ghattaura’). Jagdeep Ghattaura’s contact address was listed as being 17 Mimosa Close, Great Hay, Telford, Shropshire, TF7 4DU, United Kingdom.
(v) On March 7, 2002, the Complainant wrote to Jagdeep Ghattaura stating that it was interested in obtaining the rights over the domain names <huxleyfinance.co.uk> and <huxleyfinance.com>. This letter was sent to Jagdeep Ghattaura on Huxley Finance headed paper and clearly referred to Huxley Finance as a trading division of the Complainant.
(vi) On March 27, 2002, the Complainant received a telephone call from Al Ghattaura who stated that he was calling in reference to the above letter of March 7, 2002. Al Ghattaura stated that his brother, Jagdeep Ghattaura, had initially bought the domain names <huxleyfinance.co.uk> and <huxleyfinance.com>. However, Al Ghattaura went on to say that he had subsequently purchased these domain names from his brother with the express intention of selling them on with a view to making a profit. He stated that he would be prepared to sell the domain names to the Complainant for the sum of Ј10,000. Al Ghattaura was asked by the Complainant to confirm the content of this telephone conversation in writing.
(vii) The Complainant subsequently received correspondence from Network Cabling dated April 4, 2002, offering for sale the domain names <huxleyfinance.co.uk> and <huxleyfinance.com>for the sum of Ј10,000.00. The letter of April 4, 2002, also offered for sale the domain names <huxley-finance.co.uk> and <huxley-finance.com> again for the sum of Ј10,000.00 and Huxley Finance Limited for the sum of Ј5,000.00. In the letter of April 4, 2002, a further offer was made for the sale of the domain names <huxleyfinance.co.uk>, <huxleyfinance.com>, <huxley-finance.co.uk> and <huxley-finance.com> and the limited company Huxley Finance Limited for a total sum of Ј23,000.00.
(viii) The letter of April 4, 2002, also made the claim that the domain names were bought by Al Ghattaura with the intention of using them at a later date for his wife’s company. No mention of this was ever made by Al Ghattaura in the telephone conversation of March 27, 2002, and, indeed, as indicated above, he expressly contradicted this contention by stating that he had purchased the domain names with the express intention of selling them on with a view to making profit.
(ix) Jagdeep Ghattaura would have been aware that the Complainant had rights in the trademark HUXLEY and would have further been aware of the Complainant’s trading division operating under the name Huxley Banking and Finance and subsequently Huxley Finance.
So far as seems material to this Administrative Proceeding the Response asserts:
(i) The Respondent Miss Victoria Davies is the wife of Mr. Al Ghattaura and they operate an I.T. service delivery company called Network Cabling Ltd. Since 1997 it has been Mr. Ghattaura’s goal to build businesses based in United Kingdom that will continue to grow to have interests abroad and specifically in India. With this in mind he and his wife have built plans to effect this goal.
(ii) The business now known as Huxley Finance Ltd, has been within these plans for many years and is due to make its first full expansion into India in August 2002. There is absolutely no connection between this company and the Complainant Huxley Associates and there is no possibility of confusion as the business activities are completely different.
(iii) Following the approach made to the Respondent (in November, 2001) to acquire the Domain Names, the letter was sent by Network Cabling, stating a sum of money which they regarded as a protective action, since there was no existing intention to sell these Domain Names as they were intended to be used in connection with the business plans mentioned above.
(iv) In reply to the matters referred to in paragraphs 5A(iv) and (v), the Respondent says that Jagdeep Ghattaura simply renewed the domain names for the Respondent and the ownership details were corrected when the mistake was found. The letter dated March 7, 2002, to Jagdeep Ghattaura was passed by him "to the Respondent who subsequently replied".
(v) In reply to the allegation in paragraph 5A(ix) above:
"The Respondent would have no knowledge of the trademark issues mentioned here, Mr J Ghattaura had left the company when the European Trademark was issued. The Respondent’s interest is not in Europe but in India."
6. Decision and Findings
The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy, as follows:
(a) the domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(b) the Respondent has no rights or legitimate interests in respect of the domain name; and
(c) the domain name has been registered and is being used in bad faith.
As to element (i), the Domain Names are indistinguishable from each other for the purposes of this Administrative Proceeding. Clearly, they are not identical to the Trade Mark. Are they confusingly similar? The Complainant’s evidence as to the nature and extent of its own activities is, to say the least, sparse. It appears to have been in business for some years (having been incorporated on August 22, 1995). It has operated a division called Huxley Finance since April 2000, having started its operations under the name Huxley Banking and Finance. No evidence is provided as to the size of the Complainant’s business, although it employs a Marketing Executive and has a legal department, facts which suggest that the Complainant runs a significant business.
However, the Respondent has provided no evidence as to the nature of the business she and the husband plan to conduct through Huxley Finance Limited (the company incorporated as recently as March 30, 2002).
Assuming, as the Panelist does, that the Complainant enjoys a reputation for the services it offers under the Trade Mark "HUXLEY" (and hence possesses rights in the Trade Mark), the Panelist concludes that the mere addition of the descriptive word "FINANCE" to the Trade Mark does not serve to distinguish the Domain Names from the Trade Mark, and that they are accordingly confusingly similar.
As to element (ii) of paragraph 4(a) of the Policy, the Respondent has done nothing to demonstrate that she has any rights or legitimate interests in the Domain Names. In particular, no explanation is offered as to why the Respondent chose the name Huxley. Her response in paragraph 5B(v) to the allegation in paragraph 5A(ix) above is, in the Panelist’s opinion, evasive. It seems clear that the Respondent, her husband Al Ghattaura and his brother Jagdeep Ghattaura have been closely involved at all material times. In brief, there is nothing in the Response to suggest that any of the circumstances mentioned in paragraph 4(c) of the Policy apply (i.e. before notice of the dispute, preparation to use the Domain Names, being commonly known by the Domain Names or making a legitimate non-commercial or fair use of the Domain Names).
Lastly, the Complainant must establish element (iii), i.e. that the Domain Names have been registered and are being used in bad faith. Paragraph 4(b)(i) of the Policy indicates to a respondent that the following circumstances shall be evidence of registration and use of a domain name in bad faith:
"circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name."
The following facts, in the Panelist’s opinion suffice to satisfy him that the Complainant has established element (iii):
(a) The unexplained circumstances as to how the Domain Names happened to be chosen by the Respondent at a time when her brother-in-law was employed by the Complainant; and
(b) The offer to sell the Domain Names for Ј10,000 coupled with an offer to sell two other "huxleyfinance" domain names for a further Ј10,000. The suggestion that this offer was in some way a "protective action" is not credible.
In the light of the findings in paragraph 6 above, the Panelist concludes that:
- the domain names <huxleyfinance.com> and <huxley-finance.com> are confusingly similar to the trade mark HUXLEY of the Complainant;
- the Respondent has no rights or legitimate interests in the domain names;
- the domain names have been registered and are being used in bad faith.
Accordingly, the Panelist orders that the domain names <huxleyfinance.com> and <huxley-finance.com> be transferred to the Complainant, Huxley Associates Limited.
Dated: July 8, 2002