Nominet Dispute Resolution Service
DRS 03525
National Westminster Bank Plc –v- Johnny Megaline
Domain Name <natwestbonline.co.uk>

DECISION OF INDEPENDENT EXPERT

1.	The Parties

The Complainant

The Complainant in this case is National Westminster Bank Plc, London, represented by Parker Poe Adams & Bernstein LLP.

The Respondent

The Respondent is Johnny Megaline of US.

2.	The Domain Name

The domain name in dispute is <natwestbonline.co.uk> (‘the Domain Name’).

3.	Procedural Background

This Complaint falls to be determined under the Nominet UK Dispute Resolution Service Procedure (‘the Procedure’) and the Nominet UK Dispute Resolution Service Policy (‘the Policy’).  

The Complaint entered Nominet’s system on 14th March 2006 and was validated on 16th March 2006. Nominet wrote to the Respondent allowing 15 working days, ie until 7th April 2006, for a Response. No Response having been received and the Complainant having paid the relevant fee, the Complaint was referred to me on 18th April 2006 for a Decision. On that date, I confirmed that I was not aware of any reason why I could not act as Independent Expert in this case nor of any matters which ought to be drawn to the attention of the parties which might appear to call my independence or impartiality into question.
	
4.	Outstanding Formal/Procedural Issues

No Response has been filed by the Respondent in this matter.  

Having reviewed the file, I am satisfied that Nominet took all appropriate steps under paragraph 2(a) of the Procedure to bring the Complaint to the attention of the Respondent. In particular, Nominet wrote to the Respondent at the postal address provided by him and emailed the Respondent at both the email address provided by him, namely info@globalhostingworld.co.uk, and at postmaster@natwestbonline.co.uk. 

Paragraph 15(b) of the Procedure provides:

	‘If, in the absence of exceptional circumstances, a Party does not comply with any time period laid down by the Policy or this Procedure, the Expert will proceed to a Decision on the complaint.’

I am aware of no such exceptional circumstances in this case.   		
	
5.	The Facts

The Complainant’s factual submissions in this case may be summarised as follows:

(1)	Originally known as National Westminster Bank, the Complainant adopted the ‘NatWest’ title in the 1990s.

(2)	It is part of the fifth-largest financial services group in the world and has more than 1,600 branches, offering a wide range of financial products and services.

(3)	By virtue of its major presence for decades in the financial markets and its significant commitment to marketing and advertising, it has built up substantial goodwill in its name.

(4)	It has almost 100 UK trade marks registrations including the mark NATWEST.

(5)	It has numerous domain name registrations incorporating the term ‘natwest’ including <natwest.co.uk> and <natwest.com>.

(6)	A significant part of its business relates to online banking. In this connection it has registered the UK trade marks NatWest ON LINE and NATWEST BUSINESS ONLINE.

(7)	It operates websites linked to its domain names <natwestonline.org.uk> and <natwestonline.com> (which redirect to www.natwest.com). It also owns the domain names <natwestonline.net> and <natwestonline.org>.

(8)	The Respondent registered the Domain Name on 27th January 2006.

(9)	He is using the Domain Name to link to a website that is a close imitation of the Complainant’s own website at www.natwest.com. The site has copied the NatWest logo, design and layout, menu options and other elements from the Complainant’s site.

(10)	The Respondent’s site includes links by which visitors can provide personal information including their bank account details and online passwords. 

The above submissions are supported by documentary evidence exhibited to the Complaint. In the absence of a Response, none of the submissions is disputed and I therefore accept them as facts.

6.	The Parties’ Contentions

The Complainant

The Complainant submits that, by virtue of the above matters, it has rights in respect of names and marks, namely NATWEST and NatWest ONLINE, that are similar to the Domain Name. But for the insertion of the letter ‘b’ the operative part of the Domain Name would be identical to the latter mark. The ‘b’ may be taken to stand for ‘bank’ or ‘business’ but is not significant in any event.

The Complainant also contends that the Domain Name is, in the hands of the Respondent, an abusive registration. It was registered, and has been used, in a manner that took unfair advantage of and was unfairly detrimental to the Complainant’s rights.

In particular, the Complainant submits that the Domain Name strongly conveys the impression that it is sponsored by or associated with the Complainant’s banking business. It is a name that is targeted towards internet users who are seeking to access the Complainant’s services, whether such users include the letter ‘b’ deliberately or as a the result of a typing error.

Further, the Respondent’s website is a fraudulent imitation of that of the Complainant and the Respondent is using it to perpetrate a fraud. The Respondent is capitalising on the goodwill that attaches to the Complainant’s marks by deceiving customers and prospective customers into believing they have reached the Complainant’s site. Personal information is then solicited from them, possibly in furtherance of additional fraudulent activity.

These activities threaten to disrupt the Complainant’s business by diverting customers away from the Complainant’s own website and by eroding the Complainant’s goodwill. In the circumstances, for the purposes of paragraph 3(a)(ii) of the Policy, the Respondent is using the Domain Name in a way that has confused people into believing that the Domain Name is registered to, operated by or associated with the Complainant.

The Respondent

As stated above, no Response has been filed in this case.

7.	Discussion and Findings

Under paragraph 2 of the Policy:

	‘(a)	A Respondent must submit to proceedings under the Dispute Resolution Service if a Complainant asserts to [Nominet], according to the Procedure, that:
  
		(i)	the Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and

		(ii)	the Domain Name, in the hands of the Respondent, is an Abusive Registration.

	(b)	The Complainant is required to prove to the Expert that both elements are present on the balance of probabilities.’

Under paragraph 1 of the Policy the term ‘Rights’: 

	‘includes, but is not limited to, rights enforceable under English law. However, a Complainant will be unable to rely on rights in a name or term which is wholly descriptive of the Complainant’s business’.

The term ‘Abusive Registration’ is defined in paragraph 1 of the Policy as referring to a Domain Name which either:

	‘(i)	was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant’s Rights; or

	(ii)	has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights.’

Paragraph 3 of the Policy sets out a non-exhaustive list of factors that may be evidence that a Domain Name is an Abusive Registration. Paragraph 4 sets out a non-exhaustive list of factors that may be evidence that it is not. However, all these factors are merely indicative of, and subject to, the overriding test of an Abusive Registration as set out above.

Rights

With regard to paragraph 2(a)(i), I find that the Complainant has Rights in the UK registered trade marks NATWEST and NatWest ONLINE. The Domain Name (ignoring the formal suffix and the spacing) is similar to the Complainant’s marks and, but for the addition of the letter ‘b’, is identical to the latter mark. Accordingly the Complainant has Rights in respect of a name or mark which is similar to the Domain Name. The first limb of the test under paragraph 2 is therefore satisfied.

Abusive Registration

Under paragraph 3(a) of the Policy, the factors which may be evidence that a registration is an Abusive Registration include:

 	‘i.	Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily: …
        		
		C.	for the purpose of unfairly disrupting the business of the Complainant; …
	
	ii.   	Circumstances indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant.’

For the reasons cited by the Complainant, I find that the Respondent’s use of the Domain Name falls foul of both the grounds set out above. The Respondent is using the Domain Name to impersonate the Complainant, most probably for the purposes of fraud. In any event, he is using the Domain Name in a manner that is likely to confuse people or businesses into believing that his website is associated with the Complainant, to the serious detriment of the Complainant’s goodwill.  

The Respondent has failed to answer the Complainant’s allegations. Further, there is no evidence of any legitimate use by the Respondent of the Domain Name, whether within the categories set out in paragraph 4 of the Policy or otherwise. 

I therefore conclude that the Domain Name was registered and/or has been used by the Respondent in a manner which took unfair advantage of, or was unfairly detrimental to, the Complainant’s rights and is therefore an Abusive Registration in the hands of the Respondent. The second limb of the test set out in paragraph 2 of the Policy is satisfied accordingly. 

8.	Decision        

The Complainant has established on the balance of probabilities that it has Rights in a name or mark that is similar to the Domain Name. It has also established on the balance of probabilities that the Domain Name, in the hands of the Respondent, is an Abusive Registration. Accordingly, the Complaint succeeds and I direct that the Domain Name be transferred to the Complainant.

Signed………………………………………….……………………………...…
    								Steven A. Maier
9th May 2006