Retail Human Resources plc v Freeman, Court of Appeal - Nominet UK Dispute Resolution Service, December 23, 2005, [2005] DRS 3022

Resolution Date:December 23, 2005
Issuing Organization:Nominet UK Dispute Resolution Service
Actores:Retail Human Resources plc v Freeman
 
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Nominet UK Dispute Resolution ServiceDRS 03022Retail Human Resources plc v Stephen FreemanDecision of Independent Expert1. PartiesComplainant: Retail Human Resources plc Country: GBRespondent: Stephen Freeman (trading as www.retail.co.uk)Country: GB2. Domain Nameretail.co.uk (``the Domain Name'')3. Procedural BackgroundThe complaint was entered into Nominet's system on 6th October 2005. Nominet validated the complaint and informed the Respondent by letter dated 7th October 2005, noting that the Dispute Resolution Service had been invoked and that the Respondent had until 31st October 2005 to submit a Response. A Response was received on 31st October 2005; and a Reply from the Complainant was submitted and received on 10th November 2005. Further ``non-standard submissions'' have recently been submitted by the Respondent. I deal with these in the next section.During November the parties participated in a confidential mediation process, but in accordance with Nominet's practice I have not seen any of the mediation materials and do not know what went on, save that it did not result in a mediated settlement of the Complaint.On 30th November 2005 the Complainant was invited to pay the fee to obtain an Expert Decision pursuant to paragraph 7 of the Nominet UK Dispute Resolution Service Policy Version 2 (``the Policy''). The fee was duly paid on 2nd December 2005.On 5th December 2005 Nominet invited me to provide a decision in this case and, following confirmation to Nominet that I knew of no reason why I could not properly accept the invitation to act in this case and of no matters which ought to be drawn to the attention of the parties which might appear to call into question my independence and/or impartiality, Nominet duly appointed me as Expert with effect from 9th December 2005.4. Outstanding Formal/Procedural IssuesThe principal procedural issues in this case concern the number, volume and contents of the submissions.The Complaint filed on 6th October 2005 was within the 2000 word limit and appended three unpaginated exhibits.The Response filed on 31st October 2005 was technically within the 2000 word limit, but commenced with the words ``For full statement with footnotes see Exhibit 1A. The complexity of the Complainant's allegations requires this but certain truncations imposed by 2000 word limit occur in Response below.'' There followed no less than 57 separate exhibits, of which Exhibit 1A was the unexpurgated (i.e. over 2000 word) version of the `Response'.The Reply filed on 10th November 2005 was also within the 2000 word limit; but included 11 exhibits.I was then notified by Nominet on 6th December 2005 that the Respondent had made a further, ``non-standard submission'' under paragraph 13b of the Procedure. At that stage, in accordance with paragraph 13b of the Procedure, Nominet only sent me the first paragraph of the ``non-standard submission''.Later that day, the Respondent's representative emailed to me directly full copies of the ``non-standard submission''. It will be noted that this is a clear breach of paragraph 10a of the Procedure, which provides ``A Party and the Expert must not communicate directly. All communication between a Party and the Expert must be through [Nominet]''In response I asked Nominet to communicate the following observations to the parties:``(1) Paragraph 13 of the Nominet DRS Procedure provides as follows: a. 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. b. Any communication with us intended to be passed to the Expert which is not part of the standard process (e.g. other than a complaint, response, reply, submissions requested by the Expert, appeal notice or appeal notice response) is a 'non-standard submission'. Any non-standard submission must contain as a separate, first paragraph, a brief explanation of why there is an exceptional need for the non-standard submission. We will pass this explanation to the Expert, and the remainder will only be passed to the Expert at his or her sole discretion. If there is no explanation, we may not pass on the document or information.(2) The expert received an email sent Tue 06/12/2005 17:52 from Nominet UK pursuant to paragraph 13b of the DRS Procedure, attaching the single paragraph referred to in the Procedure.(3) The expert received a further email sent Tue 06/12/2005 18:20 directly from the Respondent's representative advancing a number of contentions as to the adequacy of what Nominet had sent to the expert and enclosing a further document.(4) It is irregular, inappropriate and undesirable for the parties to send emails directly to the expert. This should not have been done and the email and its attachment have been deleted. No further such emails should be sent or copied to the expert; if they are, they will be summarily deleted without being read or considered.(5) Irrespective of the merits of the substantive points the Respondent seeks to make, his criticism of Nominet's email referred to above is unfounded - Nominet has complied with para 13b of the Procedure, to the letter.(6) It is now up to the expert (at his sole discretion) to decide whether the remainder of the Respondent's 'non-standard submission' should be passed to him.(7) The expert hereby decides that he does indeed wish to be sent the remainder of the Respondent's 'non-standard submission' by Nominet.(8) On receipt of that 'non-standard submission' from Nominet the expert will consider, rule upon, and communicate to Nominet whether his decision should be postponed to give the parties a further opportunity to present their case.Philip Roberts7.12.05''On 8th December 2005 Nominet duly sent me the Respondent's non-standard submission. It consists of three lengthy separate documents: `Objection to Reply', `Objection to Reply (including Rejoinder)', and `Reply to Defence on Reverse Domain Name Hijacking'; seeking to have parts of the Reply struck out and seeking permission to adduce further submissions. At my request, Nominet subsequently communicated the following observations to the parties:"Further to my communication to the parties dated 7.12.05 and my receipt of the Respondent's 'non-standard submission', I consider that there is no reason for my decision to be postponed. I will accordingly provide the Expert Decision to Nominet within the original timescale, attaching such weight as I see fit to the 'non-standard submission'.Philip Roberts9.12.05"I am not going to accede to any of the Respondent's requests for striking out. I am not sure I would have the power to do so in any event - the DRS is not nearly as complicated and formal as the Respondent imagines. What I have done instead is to take into account all of the submissions which have been made by both parties, including those made in the non-standard submission, attaching such weight to them as is justified in all of the circumstances.The unfortunate result of this tit-for-tat deluge of paperwork is that this Dispute now contains many more documents than is either necessary or desirable in what is intended to be a straightforward and user-friendly dispute resolution procedure. I doubt whether parties to all Nominet DRS complaints would be entitled to expect such leniency and indulgence from all of the Experts, particularly those with no formal legal training.In the future Nominet may wish to give some consideration to imposing limits on the number or length of Appendices, in order to prevent disputes becoming, like this one, afflicted with acute appendicitis.5. The FactsThe Nominet WHOIS search with which I have been provided shows that the Domain Name, retail.co.uk, was registered by or on behalf of the Respondent, an individual, `before August 1996'. The Respondent says he acquired it from its original owner in 1998.The print out of the site accessible under the URL http://www.retail.co.uk with which I have been provided essentially depicts a search facility for retail jobs in the UK, by area, advertiser or keyword; although it appears from the historical archive printouts in the exhibits to the Reply that the site has undergone a variety of incarnations and colour schemes.The Complainant is a public limited company incorporated on 21 January 1999. It carries on business in the UK as a recruitment consultancy for the retail industry.6. The Parties' ContentionsComplaintThe Complainant makes the following submissions in its Complaint:``Retail Human Resources has rights to the Domain Name because:* It has a trading division called InRetail.co.uk which trades under the name InRetail.co.uk and has done so since 1st March 2000.* It has advertised using the name InRetail.co.uk since 1st March 2000 and spent approximately £1.3m on press advertisements, and £1m on outdoor advertising, since this time. Examples of these adverts, including the first one from March 2000, can be found in Exhibit 1.* It has continually provided recruitment services under the InRetail.co.uk name since March 2000, as evidenced by several invoices found in Exhibit 2.InRetail.co.uk was hard launched in March 2000, with more retail specific jobs than any other retail specialist site. Since this time InRetail.co.uk has continued to be the market leader, with more paid for retail jobs than any other site. We became aware of Retail.co.uk in 2004 when we were approached by Stephen Freeman to put advertising on his site for free. Our advertising stayed on the site for free until Sept 05, when because of this dispute we thought it appropriate to remove it. At no time during this period were we asked for advertising fees, nor do we have any reason to believe that any other advertisers on the site have paid any fees.As we did not...

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