InfraVision Ltd v Moylan, Court of Appeal - Nominet UK Dispute Resolution Service, March 13, 2009,  DRS 6712
|Resolution Date:||March 13, 2009|
|Issuing Organization:||Nominet UK Dispute Resolution Service|
|Actores:||InfraVision Ltd v Moylan|
DISPUTE RESOLUTION SERVICE
Decision of Independent Expert
Complainant: InfraVision Limited
Respondent: Mike Moylan
The Domain Name(s):
infravision.co.uk ("the Domain Name")
The Complaint was submitted to and validated by Nominet on 9 January 2009. Between 9 and 13 January 2009 Nominet took steps to notify the Respondent of the Complaint by post and by email. The Respondent was informed in this correspondence that he had 15 working days, that is, until 2 February 2009 to file a response to the Complaint.
On 2 February 2009 the Respondent filed a Response. The Complainant did not file a Reply to the Response. The case proceeded to the mediation stage. On 19 February 2009 Nominet notified the parties that mediation had been unsuccessful and invited the Complainant to pay the fee for referral of the matter for an expert decision pursuant to paragraph 8 of Nominet's Dispute Resolution Service Procedure Version 3 ("the Procedure") and paragraph 7 of the corresponding Dispute Resolution Service Policy Version 3 ("the Policy"). On 20 February 2009, Andrew D S Lothian, the undersigned, ("the Expert") confirmed to Nominet that he was not aware of any reason why he could not act as an independent expert in this case. Nominet duly appointed the Expert with effect from 25 February 2009.
At an early stage in his consideration of the matter, the Expert identified from the WHOIS extracts provided by the Complainant that the Domain Name was either transferred, surrendered or deleted on at least one occasion following its initial registration on 13 March 2008. No details of any such transfers, surrenders or deletions were available from the Parties' submissions but the Expert was aware that these would be held by Nominet and that they might be material to the Parties' dispute. Accordingly, on 26 February 2009, the Expert requested Nominet to supply him with the full history of the Domain Name from and after 13 March 2008, namely the date or dates of registration, details of any transfers, surrenders or deletions and the identity and full contact details of the associated registrants. On the same date Nominet provided the Expert with the details regarding the registration, transfer and deletion of the Domain Name which are reproduced in the Factual Background section below.
Paragraph 13(a) of the Procedure provides as follows:-
In addition to the complaint, the response and if applicable the reply and any appeal, the Expert may request further statements or documents from the Parties. The Expert will not be obliged to consider any statements or documents from the Parties which he or she has not received according to the Policy or this Procedure or which he or she has not requested.
Paragraph 16(a) of the Procedure provides in part as follows:-
...Moreover, there may be occasions where the Expert is in possession of relevant information, which is not in the case papers and upon which he or she wishes to rely for the purposes of the Decision. In such circumstances the Expert will inform the Parties and invite them to make submissions.
The Expert proposed to rely upon the registration, deletion and transfer information provided by Nominet and accordingly issued a Request to the Parties on 27 February 2009 in terms of paragraphs 13(a) and 16(a) of the Procedure listing this information and inviting the Parties to make submissions, if they wished to do so, within four working days, that is, by 4 March 2009. The Complainant made a further submission by email on 27 February 2009 and the Respondent made a further submission by email on 4 March 2009. These are summarised in the Parties' Contentions section below.
Both of the Parties made reference to matters not directly relative to the registration, deletion and transfer information in their further submissions. The Expert had informed the parties in the Request that they were to confine any further submissions to the disclosure of that information and that submissions on extrinsic matters would not be considered. Accordingly, the Expert has not considered any additional information provided by the Parties which was not relevant to the Request, nor has the Expert summarised this in the Parties' contentions section below.
InfraVision BV is a Netherlands company founded in 1998. It is a reseller of software named Magic Service Desk/Service Desk Express together with relative support and implementation services. Magic Service Desk/Service Desk Express is used by organisations providing helpdesk services. InfraVision BV was initially a reseller for an organisation named Network Associates.
In February 2008 InfraVision BV approached Nigel Todd, then employed by a company named Ibertek Limited, with an offer of employment. Ibertek Limited is a direct competitor of InfraVision BV. Mr Todd was a director and share holder of Ibertek Limited. The offer of employment proposed that Mr Todd open and run a UK arm of the InfraVision organisation alongside InfraVision BV's existing Belgian, Dutch and German operations. On 14 February 2008 InfraVision Limited, a UK company, was incorporated for this purpose. It is the Complainant in the present case. Mr Todd accepted InfraVision BV's offer of employment on or before 18 February 2008.
On 18 February 2008 Mr Todd gave notice of termination of his employment to Ibertek Limited and resigned his relative directorship. Mr Todd's employment with Ibertek Limited ended on 31 March 2008.
According to the information provided by Nominet from the register database (the subject of the Request to the Parties noted in Procedural History above) the history of the Domain Name is as follows:-
13 March 2008 - Domain Name registered to Falconer IS Services
5 Mapleton house,
Contact: Richard Falconer - email@example.com
18 March 2008 @ 14.35 - Domain name transferred to Ibertek Ltd (manual transfer)
5 Mapleton House, Mapleton Road
Contact: Richard Falconer - firstname.lastname@example.org
17 April 2008 @ 09.10 - Domain Name transferred to Falconer IS Services
17 April 2008 @ 10.35.35 - Request to delete Domain Name
17 April 2008 @ 10.35.39 - Domain Name deleted from Register
17 April 2008 @ 10.38.32 - Domain Name registered to the Respondent
Mr Richard Falconer is the Managing Director of Ibertek Limited. The Respondent is Mr Falconer's brother in law. The Respondent, Mr Todd, Mr Falconer and Mr Falconer's sister Debbie (the Respondent's wife) had all worked for the organisation named Network Associates prior to 2001.
During the period that the Domain Name was registered to Ibertek Limited, it was used to redirect Internet users to Ibertek Limited's website at www.ibertek.com. Since registering the Domain Name on 17 April 2008, the Respondent has used the associated website to advertise glamour, nude and boudoir photography services for a company named Infravision.co.uk Limited. The website features examples of nude photography. Infravision.co.uk Limited was incorporated at approximately the same time as the Respondent registered the Domain Name.
InfraVision are well known throughout the small population of resellers in the community of Magic/Service Desk Express resellers.
Richard Falconer acquired the Domain Name after Mr Todd had handed in his notice to Ibertek Limited and before his last day of employment there.
The Complainant's parent company holds a variety of domain names including the .at, .de, .nl and .com variants. The country code domains allow...
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