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As such, five emails seems a remarkably low figure. Also since Mr Sumpter is running his own business, no doubt emails intended for Game plc but wrongly sent to him have inconvenienced him. How do you decide which company is confusing which more? Or are we to assume that a bigger company has greater rights on the Internet? What if two companies have equal revenues - do we then base their correctness on profit? Where is the dividing line?
We would tentatively suggest that a percentage figure on the number of wrongly sent emails in comparison to total number of emails received would be a far more accurate measure of domain confusion. But the best method will always be to actually look at the websites at the domains themselves. If they are sufficiently different, then it is the correspondent that is to blame, not the domain owner.
Dangerous conclusions
Taking all this into account, we would argue that the original Nominet decision was flawed in several key areas. However, it is the dangerous precedents that the decision, if upheld, present that most concern us.
Mr Lothian was not without insight, striking at the heart of it at the very end of his decision: "The Expert is somewhat reluctant to transfer to the Complainant a domain name to which even the Complainant has ascribed values from £10,000 to £100,000 over recent years..."
But he nonetheless does exactly that having dismissed other options including cancellation and suspension. The key to Mr Lothian's decision is given in one finishing sentence: "The Expert has reached the view that the Respondent has brought the consequences of a transfer of the Domain Name upon himself by effecting the change of use in full knowledge of the Complainant's rights."
In other words, it was Mr Sumpter's cheek that informed the overall decision. However, dispute processes, procedures and rules exist for a very good reason - to provide a consistent and coherent response to a wide variety of scenarios, for good or ill. In this case, the decision is wrong, the implications dangerous and the process undermined.
Unless Nominet wishes to see it exemplary record wiped out by an invitation to big businesses to squash smaller competitors by reinterpreting long-established rules, it needs to overturn this decision, no matter what it believes about Mr Sumpter's behaviour. ®
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