Bounce.co.uk appeal decision

[michaeltoth]

The appeal decision is out for Bounce.co.uk

 

[grantw]

The nominet site still says - appeal pending - do you have a link?

thanks, grant

 

[michaeltoth]

is some one able to post it as a link for me as it is a PDF file as I am out of the office
i will email it to them

 

[Michael Penman]

Post your copy of it here and see if you can beat Nominet to it's release. That'll get them moving over in "legal" :mrgreen:

We won't be publishing the appeal for a few days, allowing the parties to absorb it. The parties may or may not chose to publish it in advance (but might not if they feel it will detract from any action they might take in the future).

 

[grandin]

important

Apart from the facts I would like to know whether the remedy requested was honoured ie. transfer to the complainant. The legal basis for the remedy is very important.

Lee

 

[rob]

The important bit:

9. DECISION
9.1 The Panel dismisses the appeal and directs that the Domain Name, ‘bounce.co.uk’, be transferred to the Complainant.

 

[rob]

What date was bounce.co.uk caught? On that date was hop.co.uk , skip.co.uk or jump.co.uk free to register?

As I raised in a consultation previously this is the exact thing I was worried about - legit names being taken off people due their 'previous form'.

 

[rob]

2001.
No. All registered prior to 2001.

I have a feeling you were being rhetorical.

Perhaps the experts ought to have checked that before saying the respondant ought to have registered similar. As at that point in time bounce.co.uk was the only one free

I might bang out requests for taken but similar names on the catch , just to show at time of registration I did try my best to register other close names.

Can you elaborate a bit more, here, about exactly what you mean?

My response was (I would link direct but nominet's search box is as useful as a one armed trapeze artist with an itchy arse, likewise google SERP links are fooked as Nom's site has been changed totally) :

"b. Paragraph 3(a)(iii) of the DRS Policy. Do you think this is an
adequate way of dealing with "pattern of abuse"? If not, how would you suggest that the Policy deal with the issue."

A Respondent may abusively register several names yet hold the current name in question quite legitimately, however this 'previous form' taint any future DRS procedures. This then becomes an assessment of the Respondent's general registration history rather than in a case by case manner.

The Respondent may be a serial abuser however in the quest for fairness of the decision I would favour the Policy to focus on the matter in hand and avoid any possible prejudice by involving previous DRS decisions.

But hey, if it was based on that alone would the name have been lost?!

 

[texidriver]

was www.jump.co.uk free to register?

What a waste! What a waste!
But I don't mind.

http://www.lyricsbox.com/ian-dury-the-blockheads-lyrics-what-a-waste-s1xg9d6.html

 

[texidriver]

Sorry if I repeat other comments, I got carried away.

"The Complainant has built up a very substantial goodwill and reputation in the BOUNCE name, as a result of the use it has made of this trade mark in the UK since 1982

the Complainant registered 'bouncesheets.com' in 1999, but did not register 'bounce.co.uk' at the same time, despite its availability for registration."


"8.3.2 The Complainant claims that the Respondent registered the Domain Name primarily with a view to preventing the Complainant from registering the Domain Name to reflect its trade mark rights..."

9 years later.


"The Complainant believes that registration of the Domain Name is detrimental to it by preventing it from establishing legitimate websites under the Domain Name reflecting its established business activities in the BOUNCE name"

www.bounce.us is COMING SOON to REGISTER.COM
Domain Registration Date: Fri Apr 19 20:59:03 GMT+00:00 2002 !
Registrant Name: Procter Gamble

Firefox can't find the server at www.bounce.eu !



"the Complainant expressly alleges in the Complaint that the degree of fame of the BOUNCE brand was such that the Respondent "must have been aware that the name Bounce denoted [the Complainant's] products and trade marks". There is no admissible challenge to that allegation."

My Dictionary says different..
Google says; Personalized Results 1 - 100 of about 71,100,000 for "bounce"
[definition]. http://www.answers.com/bounce&r=67 no mention of fabric softeners here


"For the Complaint to succeed, ........ its use in the manner made of it by the Respondent would be likely to attract Internet users to the Respondent's site believing that they were visiting a site associated with the brand owner........."

What would you believe you would find @ .....bounce.com....?

http://www.unitedkingdom.co.uk see the word Bounce anywhere?



"8.3.5 .....is it permissible for the Panel to decide that the Domain Name is an Abusive Registration for a reason not advanced by the Complainant? The Panel’s task is to assess on the basis of the material before it whether or not the Domain Name is an Abusive Registration within the definition set out in paragraph 1 of the DRS Policy. If the evidence supports a finding of Abusive Registration, the Panel is entitled to make such a finding irrespective of whether or not it is on the basis put forward by the Complainant."

"2. Dispute Resolution Service

....... and

ii. The Domain Name, in the hands of the Respondent, is an Abusive Registration.

b. The Complainant is required to prove to the Expert that both elements are present on the balance of probabilities."


Did the Complainant "prove" Abusive Registration.?





"2. The Domain Name in the hands of the Respondent is an Abusive Registration ....because:....
The Complainant wrote to the Respondent on 27 September 2005....
The Complainant received no response." !

Proved ?



"the brand was launched ..... in the UK in 1982 and astronomical sums of money have been invested in the brand in the UK from at least 2001 onwards.
Considering the extent of these sales and the considerable expenditure on advertising the BOUNCE products,....

Hard evidence to support the claim to common law rights pre-dating that financial year is also sparse in the extreme..."


No evidence was produced prior to the date the domain was regged.!


"in the Complaint and its annexes various factual claims are made by the Complainant,
(astronomical sums of money have been invested in the brand in the UK from at least 2001 onwards.)
none of which are challenged by the Respondent." !

No evidence was produced, what can you challenge ?




"the Panel is entitled to conclude on the balance of probabilities....
The Panel is permitted to use a measure of common sense.....
There is no admissible challenge to that "allegation"....."

yadda yadda .

 

[sneezycheese]

...Well said Texi !!!!!!!!!!!!!!!!!!!!!!!!!!!!!

'Experts' - I've got another word for them.

T.W. and whoever is in his pocket @ Nominet - 'BOTH' need to go!

Shameful.

 

[olebean]

I am interested to see what Beasty has to say on this issue, I hope he is able to compment.....

 

[Beasty]

I am interested to see what Beasty has to say on this issue, I hope he is able to compment.....

Olebean, you will no doubt understand that (at this time) I am unable to comment in any way on this matter.

 

[olebean]

Olebean, you will no doubt understand that (at this time) I am unable to comment in any way on this matter.

Beast

Lets hope at some stage you are in a position to comment further...

 

[Admin]

Bounce Appeal Decision - click here

 

[Jac]

I've been informed that the person that represented the Respondent is someone that recently lost a High Court case involving a contentious domain name. I also believe that the person is a member of this forum and, in any case, it is not my business to identify him. With all due respect to both the Respondent and his representative; the panel would have known full well who both of you are. Asking this individual to represent you in this appeal could, I feel, only have done you a disservice. I have no personal dislike or issue with either of you two. However don't you think the panel would have thought the choice of representation, considering previous matters, to be a little strange?

Erm.... this is a non sequitur. Just because a litigator loses one court case it does not follow that he will lose subsequent cases. The reason one loses a court case is not because they are bad or good at their job, it is simply that the presiding judge sees something in the other party's argument that sways his decision. This is why most courts will allow for appeal within their judgement.

As an aside, having had recent discussions with the "individual" you so cavalierly refer to, I would say he makes a convincing argument and is certainly capable of articulating any legal defence necessary. I would personally have no problem in recommending his services.

As an aside, have you sat across the table and argued a legal point with him? If not, it seems a tad inappropriate to make these unsubstantiated inferences as to his professional capabilities.

Regards
James Conaghan

 

[olebean]

I would personally have no problem in recommending his services.

As an aside, have you sat across the table and argued a legal point with him? If not, it seems a tad inappropriate to make these unsubstantiated inferences as to his professional capabilities.

Regards
James Conaghan

I echo these sentiments

OMFG we agree Jac :-D

 

[sneezycheese]

Erm.... this is a non sequitur. Just because a litigator loses one court case it does not follow that he will lose subsequent cases. The reason one loses a court case is not because they are bad or good at their job, it is simply that the presiding judge sees something in the other party's argument that sways his decision. This is why most courts will allow for appeal within their judgement.

As an aside, having had recent discussions with the "individual" you so cavalierly refer to, I would say he makes a convincing argument and is certainly capable of articulating any legal defence necessary. I would personally have no problem in recommending his services.

As an aside, have you sat across the table and argued a legal point with him? If not, it seems a tad inappropriate to make these unsubstantiated inferences as to his professional capabilities.

Regards
James Conaghan

...Well said Jac! :shock:

There's enough 'assuming' going on as it is (re: 'experts' going off into 'fairy tale' mode), without having any more being layed on us.


My two peneth worth (IMHO):

1. One word 'Generics' are not only Brandable, but Trade Markable! Thus it seems will always be subject to be 'aquired' from anyone under the current DRS. So we have an IP Lawyers dream - i.e. 'Exclusive' rights to a name! - Good job the Patent Office isn't like this!

2. Two/three/etc. word descriptive generic 'Terms' may not be Trade Marked due to their 'decriptive' nature. So are they a 'safer' bet???

Mmm... Puts an interesting 'slant' on things - i.e. In light of what we've seen, what is the true value of single word Generics vs multi word descriptive ones? :???:

Open to comments (including Nominet)...

 

[texidriver]

..

2. Two/three/etc. word descriptive generic 'Terms' may not be Trade Marked due to their 'decriptive' nature. So are they a 'safer' bet???

Maybe not ! (copied from another thread)

truckandtrolley.co.uk DRS

"5. Decision
I have found that
(i) the Complainant has rights in respect of a name or mark which is similar to the Domain Name and
(ii) the Domain Name in the hands of the Respondent is an Abusive Registration.
However I also have found that the words “truck and trolley” are descriptive in that form and probably generic. On that basis I am unwilling to accede to the Complainant’s application for the Domain Name to be transferred to it. I therefore direct only that the registration of the Domain Name, “truckandtrolley.co.uk” in the name of the Respondent be cancelled.
Andrew Goodman
15 October 2002"

http://www.nic.uk/digitalAssets/1016...andtrolley.pdf

 

[grandin]

texi

you texi are quietly clever...keep up the research.

what is your background...I am intrigued?

texi thy intelligent one

Lee