Points of view.
Having read the DRS a few points of view to yet again another DRS with a dubious outcome.
The expert seems to have really been overwed by the international business interests if the extensive initial history of the mercer group. In reality they have rights but that is limited to being a company with the same name as the domain, and in having trademarks in the certain area of expertise. In itself this is NO right to own the registration to the uk domain name, which is by Nominets own policy on a first come first served basis. That the current registrant has no direct relationship to the name... which is a common british surname! is NOT relevent.
The Respondent has no right to or legitimate interest in the Mark MERCER or the Domain Name.
The complainant has summarised 2 totally different issues. 1 rights to the domain, and rights of ownership of registration. As stated above part 2 is based solely on a first come first served basis. That exterts also make this invalid assumption is invalid logic.
The Complainants have never authorized the Respondent or its predecessors to utilize any of their marks, nor do the Complainants have any relationship or association whatsoever with the Respondent. Any use to which the Respondent might put the Domain Name would violate the Complainants’ trademark rights.
Has the complainant had prior contact with the respondent. Has the complainant tried to pass off themselves in the sector, or compromised the trademarks? NO. Has the respondent registered the domain with the intent of actively selling it to the complainant or their competitors? NO. Is this registration abusive as defined by policy3a(i)(ii)(iii). Clearly NO.
And 3(ii) & 3(iii) clearly not relevent.
So how is this an abusive registration?
The only activity, which the Respondent has engaged in with respect to the Domain Name is that of openly offering to sell the domain name to interested buyers...
Again a recognised and accepted practice. I REALLY REALLY wish that the DRS 'validation' procedure involved not only whether its under the 2000 works and has all the necessary documentation, but that there is also a pre-processing checklist for basic policy fullfilment.
It's interesting that the DRS dispute brochure wording says
'The respondent will generally want to show that they had a legitimate reason
for registering the domain name, and that their registration was not designed
to take advantage of the Complainant’s rights.'
Now this is an issue which REALLY needs to be explained fully at the PAB etc meetings. If Nominet operate on a f-c-f-s basis then that is legitimate reason. You shouldn't have to explain any current or future use, and a parked or dormant domain should not be detrimental to the rights of registration.
Moving on:
On April 24, 2006, the Complainants placed the Respondent on notice of their rights in and to the MERCER mark and their extensive and exclusive use of such mark in the U.K. The Complainants demanded that the Respondent transfer MERCER.CO.UK to them. The Respondent has not offered any plausible, legitimate purpose for its registration of the Domain Name.
Now this is big business in full flow. Why is an international company moving into the UK sector have an automatic right to the .uk domain name? It doesn't. Mercer were clearly in the wrong in demanding retrospective registration rights. This is an issue which the PAB need to iterate strongly. Otherwise this will happen again and again, and more frrequently. In past discussions on this board we have indicated this and Nominet promised this to be clearly defined on the website drs notes.
The Complainant replies that the Respondent’s registration constitutes an abusive registration because it clearly registered the Domain Name with a view to blocking the Complainant and with the ultimate objective of provoking an offer to purchase the Domain Name at a price far in excess of the Respondent’s out of pocket expenses. Accordingly, it is clear that the Respondent registered the domain name primarily with a view to selling it to the Complainant at a profit.
Again a clear misinterpretation of the 'blocking' definition. This is the proactive registration with full and explicit knowledge of the complainants company with the full intention to deny the complainant the registration rights to the domain.
And again domain sales and domain resales business is a recognised and established and accepted practice both for the .uk and all other major tld's and that domains have an intrinsic business value greatly in excess of the out-of-pocket transaction value.
Further, it is clear that Respondent registered the Domain Name to block the Complainant, and for the purpose of unfairly disrupting the business of the Complainant. The Complainant has had to expend large sums of money in defending against the Respondent’s act of cyber-squatting, and in seeking proper transfer of the subject Domain Name.
What??
Ok moving on to the 'expert decision'.
Policy 3a(i)(a) is crucial.
3a i. Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily:
A.for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly associated with acquiring or using the Domain Name;
From the expert:
Whilst there is no direct evidence that the Respondent’s primary purpose in registering the Domain Name was to sell it at a profit to the Complainant or a competitor of the Complainant, the Expert finds it difficult to believe that the Respondent was not aware of the Complainant’s website when it registered the Domain Name in 2004. Furthermore, the Respondent has not produced any evidence of demonstrable preparations to use the Domain Name as an e-mail service or why it chose to register the name Mercer.
Deeply disturbing. The expert has clearly made 2 assumptions and misjudgements.
i. That the respondent must have known about the complainant pre-registration and that they registsered the domain name primarily with the intent to sell to the complainant or a competitor of the complaiant. Clearly the expert on the basis of the evidence provided can NOT make this decision. NO NO NO. This is a subjective leap of judgement which has no place in a drs, as has the expert doing their own research based on incorrect usage of search engine results.
ii. That having no current plans to develop or develop the domain is evidence of abuse.
The expert clearly states that 3(a)(1)(c) has NOT been proven then states that
MERCER has a high profile in the business and financial community. It follows that this has probably attracted visitors to the Domain Name website thereby resulting in a profit to the Respondent with each click on the related Google links, thereby taking unfair advantage of the Complainant’s Rights.[\QUOTE]
The expert assumes that the primary use of the word 'mercer' is as a descriptor of business and financial services, igoring the root of the word and the countless other defined uses of it. AND that the respondent is making advantage of the complainant by placing adverts on the site:
The fact thaat:
1.The adverts have NO relation to the sectors of the complainant. They advertise geneology,and that;
2.Parking of the domain is and has been clearly demonstrated as proof of policy 4(a)(ii)
Is this the experts 'opinion' now coming out?
The policy states that the complainant has to PROVE rights and abuse. There has been an increasing trend towards the experts working off the principle that because a complainant has proved rights that the registrant has now to prove that they have legitimate rights. This is clearly NOT policy and is a trend that HAS TO STOP. This is a fundemental flaw in the drs workings that the PAB has to address and if necessary re-educate the experts.
The domain sales & resales business is established and accepted. This has to be clearly recognised by the PAB and so by extension the experts.
Domain parking and affiliate advertising are a recognised and accepted use of a domain. And that dormant and or no current development of the domain is NOT evidence to be used as abusive registration.
As a caveat to this adverts trading off the rights of the complainanty, excluding the generic sectors pertaining to the domain name, are to be avoided.
What does it take to become an 'expert' maybe I should put my name forward
Stephen
