Sam Khulusi v Limited [2011] NZDNC 646

[2011] - NZDNC - 646
Dismissed - Rights ; Complainant's Rights - Dismissed - Rights

The complainant agreed to purchase the domain name from the respondent in February 2011. The contract was made through <>. There were a series of difficulties that prevented the transfer. The respondent did not respond to Sedo's request to initiate the transfer.

The domain name was registered in 2001.

The complainant relied on contractual rights to make the claim that the respondent's continued registration was unfair. The complainant also submitted that "rights" included contractual rights, beyond the ordinary trademark rights. The respondent did not attack the complainant's claim of contractual rights being the basis of the complaint.

There are no registered or unregistered trade mark rights. The complainant claimed to have contractual rights to have the domain name transferred to him. There can be no unfair registration based on the complaint made by the complainant. While the respondent provided false registration particulars, that did not amount to unfair advantage under the Policy. Nor was there misleading or deceptive use of the domain name when the only right is a contractual claim of a transfer of the domain name.

The complainant was arguing his case based on a contractual right that is not related to a claim of right over a particular trademark. The expert examined the policy and found that the complainant's contractual entitlement to the domain name was not a right that could be supported by the Policy. A contractual right could only be enforced when it was linked to some form of trade mark right.

The expert stated that the rights in a name or a mark contemplated by the Policy had to be from either registration or use. A contractual right to obtain registration of a domain name does not meet that requirement.

A pure contractual dispute should be referred to the Court. One reason why this resolution service is preferred is likely because the Court can possibly award damages instead of transfer, while the expert can only order a transfer in favour of the complainant.

** An additional point made by the expert is that Nominet decisions are not binding on the Expert. They are generally influential in the decision-making process and are normally considered to some degree.

Link to NZLII Decision

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