Jagex Lted v Van de Bogaard, Court of Appeal - Nominet UK Dispute Resolution Service, December 13, 2007, [2007] DRS 5222

Resolution Date:December 13, 2007
Issuing Organization:Nominet UK Dispute Resolution Service
Actores:Jagex Lted v Van de Bogaard
 
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Nominet UK Dispute Resolution Service DRS 5222 Jagex Limited v. Koen van de Bogaard Decision of Independent Expert1. Parties Complainant: Jagex Limited Address: Saint Andrews House 90 Saint Andrew's Road Cambridge Cambridgeshire Postcode: CB4 1DL Country: GB Respondent: Koen van de Bogaard Address: Molenweg 67 Ewijk Postcode: 6644AZ Country: NL2. Domain Name jagex.org.uk ("the Domain Name")3. Procedural Background The Complaint was submitted to Nominet on 12 November 2007. Hardcopies were received in full on the same date and on 13 November 2007 the Complaint was validated by Nominet and sent to the Respondent by post and by email to postmaster@[the Domain Name]. The Respondent was informed in this correspondence that he had 15 working days, that is, until 5 December 2007 to file a response to the Complaint. Nominet's letter to the Respondent was returned by the Netherlands postal service marked "addressee unknown" and "street/number does not exist". The Respondent did not file a response and the case did not proceed to the mediation stage. On 6 December 2007, the Complainant paid the fee for referral of the matter for an expert decision pursuant to paragraph 8 of Nominet's Procedure for the conduct of proceedings under the Dispute Resolution Service Version 2 ("the Procedure") and paragraph 7 of the corresponding Dispute Resolution Service Policy Version 2 ("the Policy"). On 7 December 2007, Andrew D S Lothian, the undersigned, ("the Expert") confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as expert in this case and that he knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question his independence and/or impartiality. Nominet duly appointed the Expert with effect from 13 December 2007.4. Outstanding Formal/Procedural Issues No response The Respondent has failed to submit a response to Nominet in time in accordance with paragraph 5(a) of the Procedure. Paragraph 15(b) of the Procedure provides inter alia that "If, in the absence of exceptional circumstances, a Party does not comply with any time period laid down in the Policy or this Procedure, the Expert will proceed to a Decision on the complaint." Paragraph 15(c) of the Procedure provides that "If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure or any request by us or the Expert, the Expert will draw such inferences from the Party's non compliance as he or she considers appropriate." In the view of the Expert, if the Respondent does not submit a Response the principal inference that can be drawn is that the Respondent has simply not availed himself of the opportunity to attempt to demonstrate that the Domain Name is not an Abusive Registration. This does not affect the primary requirement upon the Complainant, on whom the burden of proof rests, to demonstrate Abusive Registration, nor does it in the Expert's view entitle an expert to accept as fact all uncontradicted assertions of the Complainant, irrespective of their merit.5. The Facts The Complainant was incorporated on 28 April 2000 and has since 2001 carried on business of designing, developing and operating online computer games. The Complainant's most well known product is a game known as "RuneScape". The Complainant acquired the goodwill in the name "Jagex" in 2001 (its predecessor in title having traded under the name from 1999) and has since provided services from including access to its various games. The name "Jagex" is a made-up name. The Complainant is the proprietor of the following registered trade marks:- Number Trade mark Classes Filing Date Registration Date GB 2302759 JAGEX (Word) 9, 41, 42 13 June 2002 8 November 2002 CTM E2943884 JAGEX (Word) 9, 41, 42 25 November 2002 31 January 2005 US 2860020 JAGEX (Word) 9, 41, 42 27 November 2002 6 July 2004 At June 2006, there were some 4.6...

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