Leigh -v- Inventory Solutions Europe AB [2004] DRS 1741 (30 July 2004)

1741 Leigh -v- Inventory Solutions Europe AB [2004] DRS 1741 (30 July 2004) [ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Nominet UK Dispute Resolution Service You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Leigh -v- Inventory Solutions Europe AB [2004] DRS 1741 (30 July 2004) URL: https://www.bailii.org/uk/cases/DRS/2004/1741.html Cite as: [2004] DRS 1741 [ New search ] [ Help ] Nominet UK Dispute Resolution Service DRS 01741 Garry Leigh -v- Inventory Solutions Europe AB Decision of Independent Expert 1. Parties: Complainant: Garry Leigh Country: ES Respondent: Inventory Solutions Europe AB Country: SE 2. Domain Name: timelinx.co.uk (“the Domain”) 3. Procedural Background: A brief chronology is as follows: 7 May 2004: Complaint lodged with Nominet electronically 11 May 2004 Hardcopy complaint received by Nominet 14 May 2004: Nominet forwarded complaint to Respondent 7 June 2004: Response lodged with Nominet electronically 9 June 2004: Hardcopy response received 14 June 2004: Nominet forwarded response to Complainant 24 June 2004: Hardcopy reply received 8 July 2004: Fee received from Complainant On 27 July 2004 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. 4. Outstanding Formal/Procedural Issues: None. 5. The Facts: There are two trade mark registrations 2360243 and 2360244 for the word "timelinx.com" and device registered with the Spanish Patent Office as of 24 November 2000 in classes 35 and 41 respectively. Both are in the name of “Timelinx SA”. The Respondent registered the Domain on 3 February 2003. According to a printout supplied by Nominet, as of 14 May 2004 the Domain diverted to a website at www.timelinx.info headed “Class Action Lawsuit”. The site advised of a forthcoming class action against Garry Leigh and Keith Barker, said to be directors and shadow directors of “TIMELINX SA, TIMELINX TRAVEL SERVICES PLC, DWVC. COM, TIMELINX. COM, CASHBACK-INTERNACIONAL. COM AND OLINDA INVESTMENTS INC”. Users were invited to complain if they purchased a product or service containing “the timelinx name or logo” and were dissatisfied or felt they had been misled or a victim of fraudulent mis-selling. The site included a logo similar to that shown on the Spanish trade marks consisting of the words “timelinx.com” with a device. 6. The Parties’ Contentions: Complaint: 1. The domain name, 'timelinx.co.uk' has been registered by a competitor of Timelinx S. A. with clearly malicious intent. The Respondent claims to be the real owner of the trade name Timelinx. 2. The website is being used as a link to another website, 'timelinx.info' which has also been falsely obtained by the Respondent. The matter of 'timelinx.info' has been taken up with Network Solutions by Timelinx S. A. and is now in dispute. The website, 'timelinx.co.uk' is being used solely as a link to guide people into 'timelinx.info' and there to abuse the name of Timelinx. S. A. 3. The Respondent is using 'timelinx.co.uk' for the purpose of bringing the trade name of Timelinx into disrepute. 4. The site has been created solely for the purpose of portraying Timelinx S. A. in a negative manner and otherwise serves no practical purpose. 5. The Complainant has unequivocal proof that he is the Sole Administrator of Timelinx S. A. and has sole rights to the usage of the Timelinx logo, which is being used in an abusive way on the timelinx.info website. Response: 1. The Respondent is a creditor, not a competitor of Timelinx.com. 2. The sale of the domain name timelinx.com, together with the business, to Mr Leigh and Mr Barker is subject to legal proceedings in the both the UK and Spain. Requests for them to stop using the name or offer settlement have been unanswered. 3. In relation to the domain name timelinx.info, WIPO case no: D2002 – 0940, this was not contested, as Mr Leigh promised the outstanding debt owed to the Respondent would be settled if it discontinued using the website. However payment was never made. 4. A “Denuncia” has been issued in Spain asking Mr Leigh to stop using the name/logo Timelinx. 5. The Respondent has rights in the name Timelinx. 6. The website timelinx.co.uk is not intended to be malicious. The Respondent’s intentions are honourable and legitimate, namely enabling unhappy clients to join forces in a class action law suit. Contrary to the assertion that the website at the Domain serves no practical purpose, it has been immensely successful in obtaining details of unhappy clients. 7. The Complainant should settle his debt or else the Respondent will continue to inform the public of his activities. Reply: 1. The Complainant owns Timelinx SA. He also owns the rights to the Timelinx logo. 2. All of the Respondent’s allegations are false. 7. Discussion and Findings: General To succeed, the Complainant has to prove in accordance with paragraph 2 of Nominet’s DRS Policy (“the Policy) on the balance of probabilities, first, that it has rights (as defined in paragraph 1 of the Policy) in respect of a name or mark identical or similar to the Domain and, second, that the Domain, in the hands of the Respondent, is an abusive registration (as defined in paragraph 1 of the Policy). Complainant’s Rights The complaint contains minimal information as to rights. The Complainant is an individual Garry Leigh. The Spanish trade marks mentioned above are, however, in the name of “Timelinx SA”. The Complainant claims sole rights to use the “Timelinx logo” but the basis of such claim is not explained nor is any assignment, licence or other supporting document exhibited. The Complainant does say that he is “Sole Administrator” of Timelinx SA and exhibits an official translation of a deed dated 10 December 1999, the purpose of which appears to be the transformation of a limited liability company “Timelinx Sociedad Limitada” into a public limited company. The document recites that a resolution of a meeting of members of the company specifically authorised the Complainant to execute the document. That deed does not advance matters. It does not on the face of it apply to trade marks or intellectual property rights generally and in any case nothing has been produced which links “Timelinx Sociedad Limitada” with “Timelinx SA”. Indeed the complaint does not explain what kind of entity is Timelinx SA. It may well be the body into which Timelinx Sociedad Limitada was converted by virtue of the above deed but I cannot be sure of that. The complaint exhibits no formal company documents relating to Timelinx SA. Nor is there any document supporting the Complainant’s claim that he owns Timelinx SA let alone specifying whether such ownership is 100% or otherwise (not that that of itself would necessarily suffice). Even if I were minded to allow the Complainant to rely on the Spanish trade marks in the name of Timelinx SA, there is a further problem in that such rights are not enforceable under English law. While the paragraph 1 of the Policy defines rights as including, but not being limited to, rights enforceable under English law, I would at the least expect the complaint to show some form of connection with the UK given that the Policy concerns .uk domain names. Here the complaint discloses no UK connection. In fact there is no evidence at all about any trading activity such as nature, period, location, turnover or marketing spend. The Respondent exhibits a long and detailed witness statement in County Court proceedings between the parties. This does not assist me either. The statement is concerned with the broader dispute between the parties and casts little light on the issues that are relevant here. Also, it is the Respondent’s view only and has been denied in general terms by the Complainant. The onus is on the Complainant to provide sufficient information on the question of rights (see, eg, Auto Exposure Ltd –v- Kevin Beard, DRS 1063) albeit that the requirement to demonstrate 'rights' is not a particularly high threshold test. Taking all of the above matters together, my view is that I have insufficient information before me to be able to conclude that on the balance of probabilities the Complainant has rights in respect of a name or mark identical or similar to the Domain. I should add this decision takes no account of the Respondent’s contention concerning lack of rights due to alleged non-payment of a debt by the Complainant as I am in no position to assess that issue. Abusive Registration In light of the above, it is unnecessary for me to deal with the issue of abusive registration. 8. Decision: No action should be taken in respect of the Domain. Adam Taylor Date: 30 July 2004 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/uk/cases/DRS/2004/1741.html