Email asking for eu domain bought on 7th April

[ScottJ]

I reg'd an eu on the 7th April and today I receive an email

To whom it may concern,
I write with regard to the above domain name.

We pre-registered to obtain this domain name through our internet service provider (1&1) on 14.03.06 within the SunriseII period, however, they unfortunately advised us after the sunrise period ended, that they were unable register it due to yourselves already submitting a request for the domain.

As I am sure you are aware, the purpose of the Sunrise period, was to allow companies the opportunity to register .eu domains with relevance to trading / company names etc.

xxxxxx is a trading name of ourselves, xxxxxx Limited.
We hold / trade with the domains

xxxxxx.co.uk
xxxxxx.com
xxxxxx.info
xxxxxx.tv

We believe you have registered this domain speculatively and have no entitlement to it. To this end, we request that you transfer the domain to ourselves. As a matter of our goodwill, we would be happy to reimburse you for the registration fee you paid to register the domain.

I look forward to your response and a speedy conclusion to this matter, and thank you in advance for your co-operation.

Regards
XXXXXXXXX

It's not really my fault they never secured the domain during sunrise 2, I certainly didnt try and secure it during the sunrise, I bought it in an open market on 7th April and don't know if they really have any rights? Further I have never even heard of them as its basically quite a general term, something along the lines of insurance4.eu but in another genre.

 

[Ellis]

Name and Shame Time!

It's not your fault at all - ask them to take it up with their registrar if they're not happy - that'll take them a few months

Regardless of the domain you are perfectly entitled to it

This is funny

"As a matter of our goodwill, we would be happy to reimburse you for the registration fee you paid to register the domain."

Don't budge an inch and name your own price

 

[ScottJ]

I have heard that if you offer to sell the domain then you are making it easier for the domain to be taken away from you - seeing as your then seen to be trying to profit from their TM?

They do have TM beside their name on their websites (loans4)

I did reply and stated that I never applied for their domain during the sunrise 1 or 2 and that they had plenty of opportunity if they felt that they had the right to it, I bought it on the 7th when it was open to the public.

Ball is back in their court I guess.

 

[tifosi]

If they had correctly gone through the sunrise period they would have been instructed to provide documentation to prove this.

That they hadn't, or it was rejected, meant that it was available at landrush.

 

[texidriver]

.....
They do have TM beside their name on their websites ....

That means nowt, look it up here...http://www.patent.gov.uk/tm/

is it a 'community trade mark' (CTM) ?

did you whois these ?

xxxxxx.co.uk
xxxxxx.com
xxxxxx.info
xxxxxx.tv

it looks like a form letter, just fishing.

 

[singlefile]

Do not offer to sell. If I were you, I'd simply ignore them.

 

[tmsdomreg]

If they had applied for it during the Sunrise period it wouldn't have been available for general purchase on April 7 (even if the application had failed).

As I understand it, the first batch of Sunrise failed domains are being published on May 24 for release June 10.

Peter

 

[Beasty]

They do have TM beside their name on their websites (loans4)

You may want to google "phone4u.co.uk" to find some info about a High Court action from last year between Phones4U and a guy who registered phone4u.co.uk. The matter has now been heard in the Court of Appeal and judgment is awaited - but as things stand the registrant of phone4u.co.uk won and was allowed to keep his domain by the High Court.

PM me if you want a full copy of the High Court judgment - I don't think it's published online on any free databases. The Appeal judgment was listed to be handed down a while ago - but was then put back. I'd expect it to be out sometime in the fairly near future.

 

[ScottJ]

Thanks for that, I'll wait to hear back from them - if they get back.

 

[Beasty]

Thanks for that, I'll wait to hear back from them - if they get back.

No worries. When LJ Jacob delivers his judgment on the phone4u.co.uk case, I'll post a link on here.

 

[Jac]

You may want to google "phone4u.co.uk" to find some info about a High Court action from last year between Phones4U and a guy who registered phone4u.co.uk. The matter has now been heard in the Court of Appeal and judgment is awaited - but as things stand the registrant of phone4u.co.uk won and was allowed to keep his domain by the High Court.

PM me if you want a full copy of the High Court judgment - I don't think it's published online on any free databases. The Appeal judgment was listed to be handed down a while ago - but was then put back. I'd expect it to be out sometime in the fairly near future.

Beasty; I would humbly suggest you need to differentiate between DRS and civil court cases. In the Phone4U civil case, I think it is clear that Mr Heykali was trading in phones, in his own right since 1999. Full details of this case here.

Here's an excerpt. Mr Heykali said: "I registered phone4u.co.uk in August 1999 long before I ever heard of Phones 4U. I have always traded honestly and attract customers because of my low prices, not because they think I am anything to do with Phones 4U”.

In respect of the differences between DRS decisions and civil court decisions The Register quotes Nominet's solicitor Edward Phillips as below.

As for the apparent conflict with the High Court in the Phone4U.co.uk case, Phillips makes the point: "The Experts bear the general law in mind, but the basis that they are making their decisions on are different to a normal civil law case. In a civil law case the cause of action will be 'passing off' or registered trade mark infringement: in the DRS the Expert is considering the narrower question of (a) does the Complainant have rights and (b) is the registration or use of the name 'abusive'. This distinction has always been there, and arises because the DRS simply solves a dispute under the contract of registration, not a larger problem, as the courts seek to."

Whilst I do not disagree with your general comments, I think it is always prudent to offer advice that encompasses the differences in the DRS system and civil courts, as DRS decisions may be reached on different criteria than those set in a civil court, and we all need to recognise this. I trust you will at least acknowledge there may be different criteria in the two systems?

Regards
James Conaghan
[PAB Member]

 

[Jac]

And as an aside, .EU registrations are actually facilitated by the Prague-based Arbitration Court in the Czech Republic. So whether or not one could get an ADR (Alternative Dispute Resolution Policy) transferred to an English civil court, is arguable.

However, there are already 3 ADR decisions here and they make interesting reading: www.adreu.eurid.eu/adr/decisions/index.php

Regards
James Conaghan
[PAB Member]

 

[Beasty]

JAC - Firstly I did not offer any "advice". I merely commented that sji2671 might find the phone4u.co.uk case of interest - given the similarity in the domains and given that some of the judge's reasoning referred to the generic nature of the 4u part of the name.

Secondly, I didn't notice any refernce to a choice of forum (Court or EURid) in the email complaining about the domain. So I don't know which is more relevant to this complaint. If it were a Court claim, it would seem likely that it would be brought in the UK. It certainly would not be a DRS case though.

As an aside, I agree with you that the DRS does have different rules and standards to those in the Courts. We might all consider the likely outcome of the phone4u.co.uk case under the DRS - I know who my money would have been on!

However, if the "rights" that someone is seeking to protect are those "enforceable under English law" then it seems clear to me that - if those rights have been considered in the High Court or beyond - then the analysis done there should bind (or at least guide strongly) the Experts. The Nominet contract, to which Ed Phillips refers (quite rightly) that the DRS stems from, is also governed by English law

 

[sneezycheese]

Apologies for this post as it’s not directly related to the question started in this thread, but I couldn’t resist following up on Jac’s quote from Ed P.

In respect of the differences between DRS decisions and civil court decisions The Register quotes Nominet's solicitor Edward Phillips as below.

Originally Posted by The Register

As for the apparent conflict with the High Court in the Phone4U.co.uk case, Phillips makes the point: "The Experts bear the general law in mind, but the basis that they are making their decisions on are different to a normal civil law case. In a civil law case the cause of action will be 'passing off' or registered trade mark infringement: in the DRS the Expert is considering the narrower question of (a) does the Complainant have rights and (b) is the registration or use of the name 'abusive'. This distinction has always been there, and arises because the DRS simply solves a dispute under the contract of registration, not a larger problem, as the courts seek to."

Jac - Ed also said in the same interview:

"The decisions are not made by Nominet UK, they are made by the Independent Experts and I can assure you that the Experts truly are independent. The DRS staff and I never discuss with the Experts how we want a case to go, do not edit the decisions or recommend changes to the Experts when the decisions come back, and go to great lengths to ensure our neutrality. Equally we do not comment on published decisions, either to endorse or criticise."

I've highlighted the relevent bits.


Maybe Ed (or Jac even) can tell me why 'when requested' Ed does NOT let certain 'individuals' have 'specific' copies of correspondences between the 'expert' and Nominet.

...anything to hide sir?

In the absence of any specific (and legitimate) justification, I’ll let everybody draw their own conclusions...

 

[Jac]

JAC - Firstly I did not offer any "advice". I merely commented that sji2671 might find the phone4u.co.uk case of interest - given the similarity in the domains and given that some of the judge's reasoning referred to the generic nature of the 4u part of the name.

Well; if yer gonna get all legally pedantic on me then yes, "professional advice" is different from advice or comment given freely on fora; but I didn't mean to imply you were offering your professional advice, only that it is always prudent to offer advice that encompasses the differences in the DRS system and civil courts. Otherwise (bless their cotton pickin' socks) people may well assume you are indeed offering "advice". I know I did; and you know what happens when you ass/u/me don't cha? You make an ass out of u and me.

As an aside, I agree with you that the DRS does have different rules and standards to those in the Courts. We might all consider the likely outcome of the phone4u.co.uk case under the DRS - I know who my money would have been on!

As a personal opinion, I think what swayed the court judgement in favour of the existing registrant was the fact he had used the domain name for his own trade since August 1999 and from March 2000 as a website. From what I can tell, he also registered phone4U.com as far back as December 1998. Those are fairly convincing facts; and please note my use of the word "facts".

However, if the "rights" that someone is seeking to protect are those "enforceable under English law" then it seems clear to me that - if those rights have been considered in the High Court or beyond - then the analysis done there should bind (or at least guide strongly) the Experts. The Nominet contract, to which Ed Phillips refers (quite rightly) that the DRS stems from, is also governed by English law

I think you would agree that "rights" in any civil court case are actually determined by the court? Similarly, I would have to contend m'lud that the "rights" in any DRS dispute have to be determined by the Expert presiding over said dispute. The comment Ed Phillips made last year to the Register, highlighted the differences in modus operandi between both systems. For the sake of clarity I will repeat the relevant bit.

"In a civil law case the cause of action will be 'passing off' or registered trade mark infringement: in the DRS the Expert is considering the narrower question of (a) does the Complainant have rights and (b) is the registration or use of the name 'abusive'. This distinction has always been there, and arises because the DRS simply solves a dispute under the contract of registration, not a larger problem, as the courts seek to."

So when you say "if those rights have been considered in the High Court or beyond - then the analysis done there should bind (or at least guide strongly) the Experts", I would have to contend that each case; whether in court or DRS; should be determined on its own merits. That is, in essence, what civil court cases do; make decisions based on the available evidence. So does the DRS. I would also contend (in my humble opinion) that neither are perfect, which is why both allow for appeal.

Regards
James Conaghan
[PAB Member]

 

[bb99]

Well; if yer gonna get all legally pedantic on me

Pot / kettle.........

 

[Jac]

Pot / kettle.........

Wrong analogy old boy.

Regards
James Conaghan
[PAB Member]

 

[Jac]

Maybe Ed (or Jac even) can tell me why 'when requested' Ed does NOT let certain 'individuals' have 'specific' copies of correspondences between the 'expert' and Nominet.

...anything to hide sir?

Not like you to be so cynical sneezy... ... but you'll have to take it up with Nominet, I don't have any of the 'specific' copies you refer to.

In the absence of any specific (and legitimate) justification, I’ll let everybody draw their own conclusions...

It is very difficult to draw any reasonable conclusion from just one side of an argument sneezy; especially one that is entirely devoid of objectivity. Didn't I suggest you should get on with your life, or are you set on wasting it on embittered pursuits? I doubt anyone on his deathbed will ever say, I wish I'd spent more time hating Nominet. :???:

Regards
James Conaghan
[PAB Member]

 

[sneezycheese]

I don't have any of the 'specific' copies you refer to.

...Maybe as a Nominet PAB Member you could ask Ed for copies. ...it would seem a natural choice for a "concerned" PAB Member, such as yourself.

It is very difficult to draw any reasonable conclusion from just one side of an argument sneezy; especially one that is entirely devoid of objectivity.

...Deleting 'expert' findings 'after the fact' - I guess from your 'objective reasoning' that's OK, is it???

Didn't I suggest you should get on with your life, or are you set on wasting it on embittered pursuits? I doubt anyone on his deathbed will ever say, I wish I'd spent more time hating Nominet. :???:

...'Probably' most of us on this forum as 'Domainers' (in one way or another) worry about the DRS and 'if' or 'when' it's going to 'hit', so it's important that the DRS and Nominet are seen to be and more importantly are 'Above Reproach'!!!

 

[olebean]

Sneezy

I don't nesacarily worry about the DRS, I am more concerned with the areas of business, such as the internet industry I.e " key stakeholder groups : Government, business, academia and intelectual property" who have representatives on the PAB and PAB members who represent the local Internet community......

So Jac

Who do you represent......???

What do you consider the wider stakeholder community??