The Market Court: Domain Name Was Transferred Without the Consent of the Holder

The Market Court issued a domain name decision 383/16 on 27 June 2016. According to the court, there were weighty reasons to suspect that the domain name was transferred to another party without the consent of the holder of the domain name and the transferee did not present an acceptable reason for its right. The court stated that the mere sending of a transfer key in an email is not, per se, expressing the consent of the domain name holder.

Background

The Finnish communications regulatory authority (FICORA) granted a domain name suu­rel­la­sy­da­mel­la.fi to the Federation of Evangelical Lutheran Parishes in Tampere (The Federation of Parishes) on 7 September 2005. The website contains information about volunteer work in the Federation of Parishes. The Federation of Parishes has also a trademark "Suurella Sydämellä" ("With a Big Heart" in English), registered in 2011.

Agile Design Oy (Agile) has, based on a contract between it and the Federation of Parishes, taken care of the maintenance issues regarding the domain name.

In September 2013, FICORA let the Federation of Parishes to know that some problems had occurred with the name servers of the domain name. The Federation of Parishes instructed Agile to take care of these problems. On 16 September 2013, the Federation of Parishes sent an email to Agile and the email included, inter alia, a transfer key. [A fi-domain name is transferred to a new holder by using a transfer key.]

Agile used the transfer key and the domain name was transferred to it on 12 October 2013.

The Federation of Parishes requested FICORA to cancel the domain name and to transfer it back to the Federation of Parishes. The Federation of Parishes argued that the domain name was transferred to Agile without the consent of the Federation of Parishes. Agile was, according to the Federation of Parishes, only allowed to fix the occurred problems. FICORA dismissed the request on 15 June 2015.

The Federation of Parishes filed an appeal to the Market Court against the FICORA's decision. 

The Market Court issued its decision 383/16 on 27 June 2016.

The Market Court

According to section 8 paragraph 2 of Domain Name Act 228/2003 (amendments up to 397/2009 included), a domain name may be transferred to another party. The transfer shall be effective, when the transferee has made an application for the transfer in accordance with section 4 a and the holder of the domain name has consented to the transfer. [A transfer key is expressing the consent.]

According to section 12 paragraph 1 sub-paragraph 2 of the Act, FICORA may revoke a domain name, if there are weighty reasons to suspect that the domain name has been transferred to another party without the consent of the holder of the domain name, protected name or trademark, and the holder requests that the name be revoked, and the transferee has not presented an acceptable reason for its right within a period of two weeks. According to section 12 paragraph 2 of the Act, FICORA may transfer a domain name that has been revoked by virtue of paragraph 1 (2–4) to a party that has requested the revocation.

The Federation of Parishes provided evidence of the subcontract that existed between it and Agile. According to that evidence, Agile is taking care of the maintenance issues regarding the domain name. The court stated that there is a weighty reason to suspect that the domain name suu­rel­la­sy­da­mel­la.fi was transferred to Agile without the consent of the Federation of Parishes.

The court had to assess next whether Agile has presented an acceptable reason for its right.

Agile argued that the parties had conversations about the transfer and that the transfer was consensual. According to Agile, it was not a mistake that the Federation of Parishes gave the transfer key via email. The chief executive officer (CEO) of Agile told that he and a project leader B from the Federation of Parishes had conversations about the transfer during the year 2013 and it was clear to both parties that the domain name should belong to Agile. The CEO A told also that Agile could have fixed all the server problems without the transfer key and therefore the sole purpose of the transfer key was to transfer the domain name to Agile.

The project leader B confirmed that the parties had several conversations about the domain name during the year 2013. However, no conversations were held regarding the transfer of the domain name. B or the Chief information officer C, who sent the transfer key to B, did not even have the powers to authorize the transfer on behalf of the Federation of Parishes. B understood later that the transfer key was not needed in order to fix occurred problems regarding the name servers.

The Chief information officer C confirmed the statements presented by B.

The court stated that Agile has not provided any documentary evidence regarding the transfer. Agile has only referred to the consensus between the parties in the conversations in 2013. Agile could not clearly specify the moment when this consensus was reached. The statements of the parties are contradictory. Nothing, apart from the statement made by A, supports the claim that the domain name was transferred with the consent of the Federation of Parishes.

If it's not in a contract, it didn't happen!
Image courtesy of edar at Pixabay.com

The court stated that the sole purpose of a transfer key is to transfer a domain name from one registrar to another. The sending of the transfer key was not needed here in order to fix the problems regarding the name servers. However, this does not mean that the sole announcement of the transfer key to a party, who is responsible of taking care of the maintenance issues regarding the domain name, would authorize the party to transfer the domain name. 

The court concluded that Agile has not presented an acceptable reason for its right.

The court reversed the earlier decision of FICORA and the case was sent back to FICORA for the revocation and the transfer of the domain name.

The court also ordered the defendant to pay the plaintiff's legal fees, in total 22 374,36 euros plus legal interest.