What is not under dispute is that Mr Sumpter did change his business to selling video games online, and he spent two years building that business on his Game.co.uk site. Also, both parties met several times and discussed the sale by Mr Sumpter of his domain to Game plc.
These discussions varied in time, place, length and amount offered for the domain. As is usual in such domain dispute cases, Game plc sought to paint Mr Sumpter as someone out to profit from a respectable business by holding the company to ransom over a domain name. Mr Sumpter claims just as forcefully that he was considering a sale since he had been asked to sell and that he asked what he felt was a fair price.
The expert, Mr Lothian, appeared swayed by the assertion - later admitted to us by Mr Sumpter - that a representative of Mr Sumpter had asked for £1m for the domain. This is clearly an enormous sum but Mr Sumpter argues that this was a figure put on it by a salesman who had good reason to overplay the domain's true value. He also claims there were several parties interested in buying the domain at the time.
Game plc had already given the domain a £100,000 value. Mr Sumpter felt that with his business making £60,000 in pre-tax profit a year, this figure was not high enough. Game plc was not just buying his domain, it was buying his entire business based at Game.co.uk. It is a persuasive argument - after all Amazon.com is worth a little more than just its domain name.
However, Game plc draws reference to a previous agreement that it accuses Mr Sumpter of backing out of, where he had agreed to sell the domain for a far lower figure. His sudden request for £1m is an abusive attempt to strong-arm Game plc, the company argued. And Mr Lothian tended to agree.
The blame game
However, we feel, and have always felt that this blame game where the large company is seen as working hard while the individual is abusing its position is too strongly entrenched in the minds of Internet organisations and experts thanks to the historical problem of cybersquatting.
Yes, there have been many people that have successfully and unsuccessfully blackmailed companies by registering their domain names, but that has very rarely happened in the past two or three years. And Mr Sumpter is also not one of them.
While it is quite clear that Mr Sumpter was angling for more money for his domain, you have to ask: why shouldn't he? He was selling his property and his business to someone who wanted it. Negotiating tactics and raising figures, falling out of deals before signing wouldn't even raise an eyebrow in the offline world - why should it online? Are we saying that somehow the Internet is exempt from normal business actions, that it is somehow pure? If we are, and Nominet agrees with that implicit assumption, there are very grave implications for e-commerce in the UK in the future.
The last and third point used to demonstrate Mr Sumpter's abusive registration was the confusion between his site and the company Game plc. This again is another area of domain disputes which needs a radical overhaul. There are little or no guidelines over what constitutes confusion or what level of confusion is required before it become prejudicial.
Game plc presented three examples of confusion:
- A number of complaints (five emails and 20 phonecalls) regarding Game.co.uk that had been sent to Game plc
- A letter from the head of the game industry's members body to Game plc about the use of its charts on Game.co.uk
- A Dow Jones Newswire story regarding Game plc but which gave the company's domain name as Game.co.uk.
Mr Lothian believed these examples enough to demonstrate adequate and serious confusion. We do not. In fact, in a paid-for domain dispute we would argue that such evidence should be dismissed unless it was accompanied by a declaration by the person involved explaining their confusion.
From Mr Lothian's statement, it would appear these declarations were not received: "Both the Director General of ELSPA, an industry body, and a financial journalist writing for Dow Jones, a respected publisher, might reasonably be expected to be skilled and knowledgeable about the industry concerned and the Expert believes that their joint confusion is symptomatic of the Respondent's failure to distinguish sufficiently the altered use of his website from the name or mark under which the Complainant has traded for a comparatively lengthy period."
We would suggest there are numerous possibilities that would paint an entirely different picture. But we do not even know if these people even visited Game.co.uk or were acting on information others had wrongly given them. Or whether it was no more than a typographical error. All are possible.
Equally to receive five emails mistaking Game.co.uk for Game plc is sufficient evidence for Mr Lothian that there is confusion. Our experience of the Internet and a wide public profile presents a very different picture. Following a recent story about Ronaldinho winning a domain dispute, we received no less than 20 emails from people clearly convinced that the link to the news story's author was no less than Ronaldinho's personal email address. Such completely irrational confusion is not unusual on the Internet. Never underestimate the public's stupidity.