Nominet UK Dispute Resolution Service

DRS Complaint No 04655

Decision of Independent Expert

1.	Parties

Complainant:	National Westminster Bank Plc. 	
Country:	GB

Respondent:	Carolyn Skorneck
Address:	Not available

2.	Domain Name

natwestbplc.co.uk

3.	Procedural Background

The Complaint was validated by Nominet on 1 May 2007 and sent to the Respondent on that date by both post and email to the respective addresses set out in the Registry details.  Nominet informed the Respondent that it had 15 working days, i.e. until 24 May 2007, to respond to the Complaint.

The email notification proved to be undeliverable.

By 25 May 2007, no formal Response having been received from the Respondent, Nominet wrote to the Complainant’s representative confirming that no Response had been filed and invited the Complainant to request an Expert Decision.

The Complainant paid the fee within the relevant time limit and thereafter I was contacted by Nominet and asked to confirm that I was able to provide an Expert Decision.  I responded to Nominet confirming that I was able to provide a decision.  

On 5 June 2007, the matter was duly referred to me, Simon Chapman, (“the Expert”) for an Expert Decision.

4.	Outstanding Formal/Procedural Issues (if any)

The Respondent has not submitted a response to the Complaint.  From the papers that have been submitted to me by Nominet, it is apparent that they have sent the Complaint to the Respondent using the contact details held on Nominet’s Register.  

When registering a .uk domain name applicants agree to be bound by Nominet’s Terms and Conditions.  Clause 4.1 of those terms and conditions states that the registrant of the domain name shall:-

“4.1   give and keep us notified of your correct name, postal address and any phone, fax or e-mail information and those of your contacts (if you appoint any, see condition 5.2).  This duty includes responding quickly and correctly to any request from us to confirm or correct the information on the register”

In addition paragraph 2(e) of the Dispute Resolution Service Procedure (the “Procedure”) states that:- 

“e. Except as otherwise provided in this Procedure or as otherwise decided by us or if appointed, the Expert, all communications provided for under this Procedure shall be deemed to have been received:
i.     if sent by facsimile, on the date transmitted; or
ii.    if sent by first class post, on the second Day after posting; or 
iii.   if sent via the Internet, on the date that the communication was transmitted;
iv.  and, unless otherwise provided in this Procedure, the time periods provided for under the Policy and this Procedure shall be calculated accordingly.” 

In light of the above it is my view that Nominet has done everything that it is obliged to do to bring the Complaint to the attention of the Respondent.  

I now move on to consider the consequences of the Respondent not submitting a response.
The Procedure envisages just such a situation and provides in Paragraph 15 that:-

“c.	If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure or any request by us or the Expert, the Expert will draw such inferences from the Party's non compliance as he or she considers appropriate.”

I am not aware of any exceptional circumstances to explain why the Respondent should not have responded to the Complaint, and as such believe it appropriate to proceed to a Decision. 

I will draw such inferences from the Respondent’s failure to respond as I think appropriate, but must keep in mind that there may be a number of reasons why a respondent might fail to serve a response, for example that they have nothing useful to say.

5.	The Facts

The Complainant was formed as a result of a merger in 1968, and was acquired by The Royal Bank of Scotland Group Plc in 2000.  It is part of the fifth largest financial services group in the world.  It offers a wide range of financial products and services including retail banking, online banking and investment management services, through its website and at its branches.  The Complainant has a number of registered trade marks, including “NATWEST” and “NATIONAL WESTMINSTER BANK”, and also owns various domain names including <natwest.com> and <natwest.co.uk>.

The disputed Domain Name was registered by the Respondent on 28 June 2006.  It has historically been directed to a website that purports to be that of Natwest Finance Plc, who offer services identical or similar to those offered by the Complainant.

The Complainant asserts that there are no proper records for Natwest Finance Plc, and that the company and the website are a sham to enable the Respondent to conduct a phishing scam.

The Parties’ Contentions

Complainant

The Complainant asserts that it has Rights in respect of a name and marks which are similar to the Domain Name and the Domain Name in the hands of the Respondent is an “Abusive Registration” as defined in the Dispute Resolution Service Policy (the “Policy”).

In support of the claim to Rights, the Complainant says that it is the proprietor of the trade marks referred to above and has extensively used those marks.  

In support of the claim that the Domain Names are Abusive Registrations the Complainant says that -   

i)	the Respondent has used the Domain Name primarily for the purpose of unfairly disrupting the Complainant’s business (Para 3(a)(i)(C) Policy), in connection with a fraudulent purpose; 

ii)	the Respondent was using the Domain Name in such a way that it would confuse people into believing that Domain Name was registered by the Complainant (Para 3(a)(ii);

iii)	the registration of the Domain Name takes unfair advantage of the Complainant’s rights, and the Respondent must have intended to divert business away from the Complainant.

iv)	the Respondent benefited commercially from the fraudulent use of the Complainant’s mark and associated goodwill.

Respondent

As indicated above, the Respondent has not filed a Response.

6.	Discussion and Findings:

General

To succeed in this Complaint, the Complainant must, in accordance with paragraph 2 of the Policy, prove to the Expert on the balance of probabilities that:

(i)	it has Rights (as defined in paragraph 1 of the Policy) in respect of a name or mark identical or similar to the Disputed Domain Name; and

(ii)	the Disputed Domain Name in the hands of the Respondent is an Abusive Registration (as defined in paragraph 1 of the Policy).

Despite the absence of a response from the Respondent, the Complainant must make out its case to the Expert on the balance of probabilities.  It is still incumbent on the Expert to assess the admissibility, relevance, materiality and weight of the evidence as presented in the Complaint (see Paragraph 12b of the Procedure).

Complainant’s Rights

The DRS Policy defines Rights as follows –

“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 Complainant, National Westminster Bank Plc, is the proprietor of registrations for the trade marks ‘NATWEST’ and ‘NATIONAL WESTMINSTER BANK, and has used that name and those marks such that they have created extensive goodwill therein.  It is clear that the Complainant therefore qualifies as having the necessary rights in that name and those marks.  

The Policy requires such rights to be in a name or mark identical or similar to the Disputed Domain Name.  The Domain Name is <natwestbplc.co.uk>  For the purpose of analysing whether the Domain Name is identical or similar to the name or mark in which rights are claimed, one must ignore the .co.uk suffix.  The comparison is therefore between ‘NATIONAL WESTMINSTER BANK PLC’, ‘NATWEST’ and ‘NATIONAL WESTMINSTER BANK’ on the one hand, and ‘NATWESTBPLC’ on the other.  In my opinion the Domain Name is clearly intended to be an abbreviation of the Complainant’s name, and it incorporates the whole of the Complainant’s mark ‘NATWEST’.  I determine that the Complainant has established that it has Rights in a name or mark similar to the disputed Domain Name.   

Abusive Registration

I now go on to consider the extent to which the disputed Domain Name is an Abusive Registration.

The Complainant asserts that the registration of the Domain Name is an Abusive Registration for the reasons identified above.

The Policy defines an 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”

and goes on to set out a (non-exhaustive) list of factors which may be evidence that a domain name is an Abusive Registration.  

The Complainant has set out specific grounds of complaint, which marry up broadly with certain grounds set out in the Policy.  However in the present case, I do not think that one needs to drill down into any specific grounds, insofar as the Complainant has adduced compelling evidence, which has not been rebutted, and which identifies the activities of the Respondent as fraudulent and intended to deceive customers of the Complainant.  In such circumstances, it seems unlikely that one could think of an activity that took more advantage of or was more detrimental to a complainant’s rights, and I have little difficulty in determining that the use of the Domain Name by the Respondent is Abusive. 

7.	Decision

For the reasons set out above, I find that the Complainant does have Rights in respect of a name and marks which are similar or identical to the Domain Name <natwestbplc.co.uk>, and that the Domain Name in the hands of the Respondent is an Abusive Registration.  The Complaint therefore succeeds. 

The disputed Domain Name <natwestbplc.co.uk> should be transferred to the Complainant.

Simon Chapman

25 June 2007