Financial Services v Insurance Agent [2007] NZDNC 168

[2007] - NZDNC - 168
Transferred ; Complainant's Rights ; Degree of Name Similarity ; Unfair Registration - Transferred

The complainant is a self employed financial advisor who trades under the name Atlas Financial Services. The respondent is a self employed financial advisor and insurance agent. The parties shared office space for a period until 2002. In 2005, the complainant was notified that the respondent had submitted a request to have the domain name transferred to him.

The domain name was registered in 1998 and was owned by the complainant. The complainant had been paying both a registry fee and a domain name hosting service fee. The respondent had not paid the monthly domain name charge until 2006, which was when the domain name was transferred to him.

The issue for the expert is whether the domain name can be legitimately owned by the respondent and whether the Dispute Resolution Service procedure can deal with an issue of this kind or whether the respondent can avoid the complaint. Since the process aims to resolve disputes between parties regarding domain name, in general, there is no reason why the Policy should not be applied here.

The complainant claims that the dispute in 2005 was resolved and the complainant named the rightful administrator of the domain name and both parties will continue trading under the same name with no sole ownership of the name. The complainant asserted that the respondent had acquired the domain name improperly transferred to the respondent.

The respondent stated that the complainant was originally working under his business as an agent until 2002 when she resigned. The respondent alleged that he purchased the domain name.

The name ATLAS/ATLASINS is not registered but the complainant has shown that the mark was used consistently as a trade name for years and the domain name was found to be similar to the trade marks.

The expert found that the complainant was the one who originally registered the trade name and when the respondent had an issue with it, instead of going through the DRS process, the respondent used another process to obtain the domain name. Evidence has shown that the method is controversial.

The expert is convinced that the registration at the hands of the respondent at the moment is unfair. As such, the complainant is entitled to the domain name, as someone who had owned the domain name and allowed to have the domain name for years. The respondent's conduct is thus unfair and detrimental to the complainant's rights.

As the domain name was wrongfully transferred from one party to another party, the underlying philosophy of the DRS is to provide the parties with a dispute resolution service. As long as the Policy permits, this would include dealing with real issues between the parties as long as one of the parties can show that they have rights in the domain name and the ownership of the domain name by the other party is unfair.

Link to NZLII Decision

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