Oasis.co.uk – Overturned On Appeal.

In one of the most remarkable domain disputes ever seen (certainly for the UK name space), the domain name oasis.co.uk has this week been overturned on appeal by the panel of nominet appointed DRS experts and returned to the ownership and control of the registrant.

The parties in this case are UK high street clothing chain Oasis Stores Ltd (complainant) and James Dale (respondent).

In what no doubt will become a landmark case for a number of reasons, Oasis.co.uk will remain with owner James Dale;  despite he not submitting a defence to the original complaint, failing to keep accurate whois records and being allowed to submit fresh evidence at the appeal hearing. All of which are against the rules as set out by Nominet.

Speaking today, Mr Dale said “For owners of UK generic domain names, this could be considered a landmark outcome. The DRS has at times been viewed as the poorer, less effective cousin of the UDRP process. That the complaint against oasis.co.uk was successfully overturned here should help to restore the damaged reputation of the DRS in the eyes of the UK domain community, whilst giving owners of other generic domains some additional peace of mind. I hope to see this case referred to in future in support of other unfair claims which will undoubtedly arise – although perhaps now with a less opportunistic slant.”

The first Mr Dale knew of the original complaint and subsequent loss of his domain name was when a friend commiserated with him about his loss. Mr Dale stated that he had not received communications about the original complaint (and hence never filed a defence) because both his physical address and email contact address had changed since acquiring the domain in 2006 – yet he asked that, in the interests of justice, because Nominet knew his new address from other correspondence, they overlook this violation. The appeal found that in the interests of justice, Mr Dale having to pay the appeal hearing fee was, in itself, punishment enough for not keeping up-to-date and accurate whois and contact details. The precedent saving caveat however was also added by the appeal panel “That should not be taken to mean that any Respondent who ignores a Complaint (whether intentionally or inadvertently) has a right to submit new evidence on Appeal upon paying the fee.”

The main cornerstones of the case however surround the claim that oasis.co.uk was an abusive registration because the site was displaying ads of the complainants mark/brand on a parking page and, because this was an appeal hearing, that the respondent be not allowed to submit fresh evidence.  The respondent claimed (in the subsequently accepted fresh evidence) that the reason the parking page displayed ads of the complainant was because it had deliberately bid on exact domain names owned by the respondent  (the respondent also owns oasis.com and oasis.de) at their upstream PPC provider. In this case Yahoo.

As if the decision based on the material facts alone weren’t remarkable enough, the appeal committee took the unprecedented step of visiting the complainants website themselves and found meta information embedded in the source code of the site which showed the terms “oasis.co.uk” and “oasis.com” – names the complainant did not own.

The appeal panel concluded :  “The Panel considers this information [submitted by parking company iMODO.com] tends to confirm the thrust of the allegations made by the Respondent – namely that the Complainant is itself seeking to use the domain names oasis.co.uk and oasis.com to attract traffic to its own site. It may well be that this metatag use will also have some influence on the search results that Yahoo (and other search engines) return when these domain names are used as search terms.

In short the Panel concludes that the Complainant, by choosing to use as keywords with Yahoo (and possibly also as metatags on its own web site – www.oasis-stores.com) text which corresponds to domain names which it does not own, including the Domain Name, has to some degree caused the parking page to which those domain names are linked to behave in the manner which the Complainant now says is Abusive. The Panel believes it is clear that this cannot be Abusive Behaviour by the Respondent. He has said he did nothing to alter the behaviour of the site and if a significant cause is the actions of the Complainant it cannot rely on those as evidence of Abusive Behaviour by the Respondent. Accordingly the Panel considers, if all the evidence before it is admitted, that the registration is not an Abusive Registration, and it should not be transferred to the Complainant.”

What’s amusing in this case for me is not the way the respondent managed to shoehorn in additional evidence through the back door but more about how the big nasty company clearly made bids on the domain name as a keyword in their PPC campaign with the view of using it as the evidence in their reverse hijacking claim – I guess you could align it as being a modern day “plant”. In this case, I applaud the appeal panel for gathering additional evidence and making the “smoking gun” discovery that domain names not owned by the complainant were sat there in the source code of the complainants site..

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