Nominet UK Dispute Resolution Service

DRS Number 04001

B E T W E E N:

GENERAL DYNAMICS UK LTD
Complainant

- and -

BRAINFIRE GROUP
Respondent

Decision of Independent Expert

1.	Parties

	Complainant:	General Dynamics UK Ltd	
	Country:		GB

	Respondent:		Brainfire Group
	Country:		CA

2.	Domain Name

	generaldynamics.co.uk

3.	Procedural Background
3.1.1	The Complaint, which is a complaint of Abusive Registration under the Dispute Resolution Procedure (“the DRS”) of Nominet UK (“Nominet”), and is dated 13 September 2006, was posted by Nominet to the Respondent under cover of a letter dated 19 September 2006.  The covering letter included the following paragraphs:-
		“A copy of the complaint is attached to this letter, which is deemed to have been received by you on 20 September 2006 (please refer to paragraphs 2(a) and 2(e) of the Procedure).
		In accordance with the Procedure, you have 15 working days, ie until 12 October 2006 to respond to the complaint.  In order to be valid, your response must comply with the Procedure, and must be received by Nominet in both hard copy and electronic form.”

3.1.2	The Respondent did not respond by 12 October 2006 or at all.  In a letter dated 12 October 2006 Nominet wrote again to the Respondent, referring to the letter dated 19 September 2006 and to the failure of the Respondent to submit a response within the deadline, and communicating that in the circumstances, this dispute would not go through the Informal Mediation stage of the Dispute Resolution Service, but would be referred to an independent expert for a decision if General Dynamics UK Ltd paid the appropriate fees by 26 October  2006 - a condition which was fulfilled.

3.1.3	By letter dated 19 October 2006 I was appointed with effect on 26 October 2006 to provide a Decision under Nominet UK’s Dispute Resolution Service Policy (“the Policy”).  I am required to send my decision to Nominet no later than 9 November  2006.

3.1.4	I have been provided with the following materials:-
•	Dispute History
•	Complaint
•	Standard correspondence between Nominet and the parties
•	Companies House print out for both parties.
•	Register entry for generaldynamics.co.uk.
•	Nominet WHOIS query result for generaldynamics.co.uk
•	Printout of website at www.mycashnow.me.uk.
•	Copy of Nominet UK’s Policy and Procedures.

4.	Outstanding Formal Procedural Issues
4.1	There are no outstanding formal or procedural issues.

5.	The Facts
5.1	The domain name was registered by the Respondent on 11 February 2005.

6.1	The Complaint of Abusive Registration is in the following terms:-

	The Complaint
	I confirm that Domain Name(s) in dispute are identical or similar to a name or mark in which I have Rights.

	I confirm that Domain Name(s) in the hands of the Respondent is an Abusive Registration. 

	General Dynamics UK Limited is a leading prime contractor and complex systems integrator working in partnership with the UK’s Ministry of Defence (MoD) and other allies.  General Dynamics United Kingdom Limited was incorporated on 7 May 1985 and the company registration number is 1911653.  General Dynamics UK Limited’s former name was Computing Devices Company Limited which was changed on 7 September 2001 to General Dynamics UK Limited.  General Dynamics Limited was incorporated on 2 May 1956 and this company’s registration number is 565542.  The company has a turnover in the UK of approximately £500 million and employs over 1500 people across the UK to provide the UK Ministry of Defence with technical leadership, manufacturing expertise and prime contract management skills.  General Dynamics UK Limited is part of the General Dynamics Corporation of the United States, one of the top six defence companies in the world with over 81,900 staff and a turnover exceeding $21 billion.  The current registration of www.generaldynamics.co.uk is cyber-squatted by Brainfire Group who has no association with General Dynamics UK Limited, or any of its affiliates.  According to WHOIS, Brainfire Group is registered as an individual in Calgary Canada.  Brainfire Group does not appear to have any operations in the UK.  General Dynamics UK Ltd worked with its sister Company, General Dynamics Canada (Calgary), to develop a system for the UK MoD which received much coverage in the Calgary.  This is clearly opportunist squatting.  Evidence of first use of the name General Dynamics in the UK is enclosed in our written submission and includes: registration with Companies House, VAT registration, brochures, photos from trade shows, advertisements, and letterhead.  The registration by Brainfire Group is causing confusion amongst our key stakeholders.  As a leading supplier to the UK Government, this clearly can not continue.  The current domain name of www.generaldynamics.co.uk points to a generic site, typical of cyber-squatters.  Their agents are fasthoses.co.uk.  The renewal date for www.generaldynamics.co.uk is 11 February 2007.  However, we respectfully request the immediate transfer of the domain name: www.generaldynamics.co.uk to General Dynamics UK Limited at the address specified on this document.  In addition, it is clear that the Brainfire Group has had similar complaints lodged against them in the cases of DRS 03386 (Lambert and Butler), and DRS 02908 (British Credit Trust) in the UK; and similar complaints in France.  In all cases, the domain names were transferred to the Complainant.

6.2	The Complainant requests the transfer of the Domain Name.

	Respondent
6.3	As stated above, the Respondent has not submitted any Response.
  	
7.	Discussion and Findings:
	General
7.1	Under paragraph 2a of the Policy the Respondent is required to submit to proceedings if a Complainant asserts to Nominet in accordance with the DRS 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.”

7.2	Under paragraph 2b of the Policy a Complainant is required to prove both these elements on the balance of probabilities.

7.3	Paragraph 1 of the Policy defines “Rights” as including but not being “limited to, rights enforceable under English law”.  This definition is subject to a qualification which is not material.

	Complainant’s Rights
7.4	The print-out from Companies House, the company registration documents, copy accounts, VAT registration, brochure and letter heading show that the Complainant’s name is General Dynamics United Kingdom Limited and not General Dynamics UK Limited as claimed.  It is apparent from the brochure provided to me (and from its e-mail address) that the Complainant trades both under its full name and under the abbreviated version of General Dynamics UK Limited.  However, the evidence submitted does not establish when the Complainant first started using this abbreviated form of this name and does not establish any common law rights in that name.  The Complainant does not rely upon any registered Trade Marks.

7.5	Registration of a name under the Companies Act 1985 provides the registering company with rights in relation to that name which are enforceable under English law.  I am therefore of the opinion that the Complainant has rights in the name General Dynamics United Kingdom Limited.

7.6	I consider and find as a fact that the name in which the Complainant has rights (i.e. its registered name) is similar to the Domain Name.  Accordingly, I am satisfied that the conditions of paragraph 2a of the Policy are satisfied. 

	Abusive Registration
7.7	Paragraph 1 of the Policy defines “Abusive Registration” as:
		“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.”
		 
7.8	The Policy provides:
	“3	 Evidence of Abusive Registration 
	a 	A non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration is as follows: 
	i	Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily: 
	A 	for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly associated with acquiring or using the Domain Name;
	B 	as a blocking registration against a name or mark in which the Complainant has Rights; or
	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; 
	iii 	The Complainant can demonstrate that the Respondent is engaged in a pattern of registrations where the Respondent is the registrant of domain names (under .uk or otherwise) which correspond to well known names or trade marks in which the Respondent has no apparent rights, and the Domain Name is part of that pattern; 
	iv 	It is independently verified that the Respondent has given false contact details to us; or
	v 	The domain name was registered as a result of a relationship between the Complainant and the Respondent, and the Complainant: 	
		A 	has been using the domain name registration exclusively; and
		B 	paid for the registration and/or renewal of the domain name registration.
	b	Failure on the Respondent's part to use the Domain Name for the purposes of e-mail or a website is not in itself evidence that the Domain Name is an Abusive Registration.
	c 	There shall be a presumption of Abusive Registration if the Complainant proves that Respondent has been found to have made an Abusive Registration in three (3) or more Dispute Resolution Service cases in the two (2) years before the Complaint was filed. This presumption can be rebutted (see paragraph 4 (c)).

	4.	How the Respondent may demonstrate in its response that the Domain Name is not an Abusive Registration 

	a 	A non-exhaustive list of factors which may be evidence that the Domain Name is not an Abusive Registration is as follows: 
		i 	Before being aware of the Complainant's cause for complaint (not necessarily the 'complaint' under the DRS), the Respondent has
			A 	used or made demonstrable preparations to use the Domain Name or a Domain Name which is similar to the Domain Name in connection with a genuine offering of goods or services;
			B 	been commonly known by the name or legitimately connected with a mark which is identical or similar to the Domain Name; or
			C 	made legitimate non-commercial or fair use of the Domain Name; or 
		ii 	The Domain Name is generic or descriptive and the Respondent is making fair use of it.
		iii 	In relation to paragraph 3(a)(v); that the Registrant’s holding of the Domain Name is consistent with an express term of a written agreement entered into by the Parties; or
		iv 	In relation to paragraphs 3(a)(iii) and/or 3(c); that the Domain Name is not part of a wider pattern or series of registrations because the Domain Name is of a significantly different type or character to the other domain names registered by the Respondent.
	b 	Fair use may include sites operated solely in tribute to or criticism of a person or business. 
	c 	If paragraph 3(c) applies to succeed the Respondent must rebut the presumption by proving in the Response that the registration of the Domain Name is not an Abusive Registration.

7.9	The Complaint is extremely sketchy.  No attempt is made to identify the paragraphs in the Policy upon which reliance is placed.  Reference is made to the present site being “typical of cyber-squatters”.  There is no reference to “cyber-squatting” in the Policy.  Furthermore, whilst there is a complaint of “confusion” it is entirely general and provides no specific examples.  In short, in terms of forensic preparation, the Complaint is of a poor standard.

7.10	Nevertheless, I take account of the fact that the Complaint includes a statement of truth and is signed, and that, there being no Response, it is unchallenged.  I also consider that I am entitled to take “judicial notice” of the fact that the name “General Dynamics” is well known in the United Kingdom as a defence contractor.  Accordingly, the suggestion that persons or business are likely to associate the Domain Name with the Complainant and that this has given rise to actual confusion to persons or businesses is plausible and is one which, on the balance of probabilities, I accept.

7.11	Further, as is stated in the Complaint (and not challenged):-
		“In addition, it is clear that the Brainfire Group has had similar complaints lodged against them in the cases of DRS 03386 (Lambert and Butler), and DRS 02908 (British Credit Trust) in the UK; and similar complaints in France.  In all cases, the domain names were transferred to the Complainant.”

	In my opinion this is evidence of a “pattern of registration” within the terms of paragraph 3aiii of the Policy.

7.12	No justification for its registration of the Domain Name is advanced on behalf of the Respondent.  In the circumstances I am satisfied and find as a fact that:-
	7.12.1	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;
	7.12.2	the Respondent is engaged in a pattern of registrations where the Respondent is the registrant of domain names (under .uk or otherwise) which correspond to well known names or trade marks in which the Respondent has no apparent rights, and the Domain Name is part of that pattern.	

7.13	Accordingly, in the terms of paragraph 1 of the Policy, I am satisfied and find that the Domain Name both was registered in a manner which at the time the registration took place took unfair advantage of and was unfairly detrimental to the Complainant’s Rights [7.12.2] and has been used in a manner which took unfair advantage of and was unfairly detrimental to the Complainant’s Rights [7.12.1 and 7.12.2].

8.	Decision
8.1	For the reasons give above, I find that the Domain Name in the hands of the Respondent, is an Abusive Registration.

8.2	The Complainant has requested the transfer of the Domain Name.  On the basis of the material before me I consider that that is an appropriate remedy and accordingly that the Domain Name should now be transferred to the Complainant as it requests.

							Signed…………………………
David Blunt QC
3 November  2006