Nominet UK Dispute Resolution Service (DRS)
DRS Number 05781
Alienware Corporation -v- Anthony Bibbs
Decision of Independent Expert
1)	Parties
Complainant  : 	Alienware Corporation
			US

Respondent	  :	Mr Anthony Bibbs
US
2)	Domain Names
alienwarei.co.uk (the Domain Name)
3)	Procedural Background
On the 5th June 2008 the Complaint was lodged with Nominet UK Limited (“Nominet”) and hard copy was received on the 9th June 2008.  Nominet validated the Complaint on the 11th June 2008 and on the same day it was sent to the Respondent giving it 15 working days within which to lodge a Response.   The Respondent did not respond and on the 4th July 2008 Nominet generated the “no response to Complaint” documents. On the 14th July 2008 the Complainant paid the appropriate fee for a Decision by an Expert pursuant to paragraph 6 of Nominet’s DRS Policy (“the Policy”).
On the 15th July 2008 Mr. Niall Lawless (“the Expert”) was selected and on 21st July 2008 was formally appointed to act as Expert in this dispute, having confirmed that he knew of no reason why he could not properly accept the appointment and knew of no matters which ought to be drawn to the attention of the parties which might appear to call into question his impartiality and / or independence.  He is required to give his Decision by 4th August 2008.
4)	Outstanding Formal / Procedural Issues
There are no outstanding formal or procedural issues.
5)	The Facts
The Complainant established in 1996 is a corporation incorporated under the laws of the State of Florida under the name Alienware Corporation. The Complainant is a manufacturer of high performance desktop, notebook, media centre and professional systems.  In 2007 the Complainant had a turnover of approximately US$155 million with about US$13.6 of this coming from the UK.
The Complainant makes extensive and prominent use of its name and the ALIENWARE Mark, name and logo appear on the company’s products, sold worldwide (including the UK) and these are used prominently on the Complainants websites, with addresses such as www.aleinware.com, www.alienware.eu, www.alienware.net and www.alienware.co.uk.
The domain name “alienwarei.co.uk” was registered on the 4th October 2007 which postdates the registration date of the ALIENWARE Mark and ALIENWARE Domain Names; the incorporation date of the Complainant and the first date the Complainant started trading under the ALIENWARE name, both in the UK and worldwide.
The Complainant seeks transfer of the Domain Name alienwarei.co.uk to them.
6)	The Parties’ contentions
The Complainant says that the Domain Name “alienwarei.co.uk” controlled by the Respondent is an Abusive Registration under Nominet’s DRS Policy.
The Complainant says it has invested in promoting the ALIENWARE brand and that prior to the 4th October 2007 when the domain name “alienwarei.co.uk” was registered by the Respondent they had established significant goodwill and reputation in the UK and worldwide. 
The Complainant says that because of the nature of its business and method of sale (namely the direct sale of computers over the internet) that any domain name incorporating the ALIENWARE Mark will cause significant confusion and disruption to its business. 
The Complainant says that in breach of Nominet DRS Policy paragraph 3(a)(i) Disruption the Respondent registered “alienwarei.co.uk” for all or any of the following purposes :-
•	To sell the domain name to the Complainant and / or Dell (owners of the Complainant) or to a competitor of the Complainant and / or Dell, for more that the registrant’s costs directly associated with acquiring the domain name.
•	As a blocking registration against the ALIENWARE mark in which the Complainant had rights.
•	Otherwise using the reputation and goodwill in the ALIENWARE Mark, name and brand to the advantage of the Respondent and to the detriment of the Complainant and / or Dell and thereby unfairly disrupting the business of the Complainant.
They say that the Respondent is a typosquatter (a form of cybersquatter which relies on mistakes such as typographical errors made by Internet users when inputting a website address into a web browser). They say that the Respondent’s primary intention was to obtain revenue from the mistyping of “alienware.co.uk” and evidence of this is that “alienwarei.co.uk” initially pointed to a Commission Junction (a company providing online advertising channels of affiliate marketing) webpage, that is the Respondent used the Domain Name to point to a website with sponsored links to obtain revenue.
The Complainant also says that in breach of Nominet DRS Policy paragraph 3(a)(ii) Confusion, the similarity of the Domain Name “alienwarei.co.uk” and the ALLIENWARE global brand it is likely that the Domain Name will lead internet users to be confused into believing that the Domain Name is owned and / or operated by the Complainant, or authorized and / or endorsed by the Complainant which is not the case. They say that confusion will inevitably cause damage to the Complainant’s goodwill and reputation. 
They say that when in the past the Domain Name pointed to a Commission Junction webpage this will have caused confusion among relevant internet users who mistyped the ALIENWARE URL and that this will also have caused damage to the Complainant’s goodwill and reputation.
They also say that even if the Domain Name has not caused actual confusion, it is likely that in the hands of the Respondent the Domain Name will do so in the future, in that relevant users will believe that any website to which it is pointed is owned or operated by the Complainant.  
Because of the above the Complainant asks that the Expert issue an order directing the transfer of the Domain Name to the Complainant.
The Respondent has not responded.
7)	Discussions and Findings
7.1	General
 The Nominet DRS Policy requires that for a Complaint to succeed the Complainant must prove to the Expert on the balance of probabilities 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.
Rights include, but are not limited to, rights enforceable under English Law.  
In order to show that the Domain Name is an Abusive Registration, the Complainant must prove that the domain name either :-
i.	At the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant’s Rights. 
ii.	Has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainants Rights. 
The Complainant is required to prove to the Expert that the Claimant has Rights and that the Domain Name in the hands of the Respondent is an Abusive registration; both elements must be present.  
7.2	Complainant’s Rights
It is clear that the Complainant has Rights in the Domain Name alienware.co.uk, in the Trade Mark ALIENWARE and ALIENWARE is in essence the main part of the company name Alienware Corporation. 
The Complainant says that the domain name “alienwarei.co.uk” is identical or similar to their ALIENWARE Mark and that because the Domain Name is comprised of the ALIENWARE Mark followed by the letter “i”, this is a difference which is so insignificant that it would go unnoticed by the average consumer. I accept this and decide that the Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name. 
7.3   Abusive Registration
Under the Nominet DRS Policy Section 3 Evidence of Abusive Registration guidance is given as to what factors may evidence that the Domain Name is an Abusive Registration. These are circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name, for example :-
•	3(a)(i) for the purpose of unfairly disrupting the business of the Complainant (subsequently referred to as “Unfairly Disrupting the Complainant’s Business”).
•	3(a)(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 (subsequently referred to as “Using Domain Name to Confuse”).
Unfairly Disrupting the Complainant’s Business. The Complainant says that in breach of Nominet DRS Policy paragraph 3(a)(i) the Respondent registered “alienwarei.co.uk” for all or any of the following purposes :-
•	To sell the domain name to the Complainant and / or Dell (who owners of the Complainant) or to a competitor of the Complainant and or Dell, for more that the registrant’s costs directly associated with acquiring the domain name.  Although the Complainant asserts this they adduce no evidence in relation to it, therefore I decide that there is no evidence to support the presumption of Abusive Registration.
•	As a blocking registration against the ALIENWARE mark in which the Complainant had rights.  Under Nominet’s policy for this to be evidence of an Abusive Registration the Complainant must not show just that the Domain Name may act as a blocking registration, but this was the primary intent of the Respondent at the time the registration was made. The Complainant has offered no evidence that meets the required burden of proof; because of this I decide that there is no evidence to support the presumption of Abusive Registration.
•	Otherwise using the reputation and goodwill in the ALIENWARE Mark, name and brand to the advantage of the Respondent and to the detriments of the Complainants and / or Dell and thereby unfairly disrupting the business of the Complainant.  The Complainant says that the Respondent is a typosquatter and that his primary intention was to obtain revenue from the mistyping of “alienware.co.uk”. They say that because “alienwarei.co.uk” initially pointed to a Commission Junction (a company providing online advertising channels of affiliate marketing) webpage is evidence of this. The Complainant has in addition provided evidence that it runs an affiliate programme through which affiliates can earn commission for any sales referred to Alienware from the affiliates’ website.  Alienware uses Commission Junction to run an affiliate programme and there is evidence that the Respondent has used the Domain Name to generate revenue. However under Nominet’s DRS Policy sale of traffic (i.e. connecting domain names to parking pages and earning click-per-view revenue) is not of itself objectionable and it is for the Expert to take into account the nature of the Domain Name and the nature of the advertising links on any parking page associated with the Domain Name. Although the Domain Name initially pointed to a Commission Junction webpage currently it does not resolve to a website. Although I accept that the Respondent has used the Domain Name to obtain revenue, the Complainant has not proven that the Respondent registered or otherwise acquired the Domain Name primarily for the purpose of unfairly disrupting its business.
Using Domain Name to Confuse.  The Complainant also says that in breach of Nominet DRS Policy paragraph 3(a)(ii), the similarity of the Domain Name “alienwarei.co.uk” and the ALIENWARE global brand it is likely that the Domain Name will lead internet users to be confused into believing that the Domain Name is owned and / or operated by the Complainant, or authorized and / or endorsed by the Complainant which is not the case. They say that confusion will inevitably cause damage to the Complainant’s goodwill and reputation. They say that the fact that the Domain Name does not resolve to a website does not prevent the registration from being abusive and they refer to the decision in Epson -v- Cybercorp (DRS03027) in which it was stated that “confusion which may arise irrespective of the content of the Respondent’s website, merely as a result of the Respondent’s adoption of a Domain Name incorporating the [registered trade mark], can legitimately be taken into account” in determining whether there is an abusive registration. 
However that decision also goes on to say that “there is no absolute rule that any domain name incorporating the [registered trade mark] will be an Abusive Registration” and that “the question of whether the (misleading) impression of a commercial connection is created is a question of fact in each case”.  
The Respondent has not responded to the above and offered no evidence.  
Because “alienwarei.co.uk” initially pointed to a Commission Junction webpage I accept that this will have caused confusion among relevant internet users who have mistyped “alienware.co.uk”.  Also when the Respondent linked the Domain Name to the Commission Junction webpage, it is likely that he will have confused people into believing that the Domain name is registered to, operated or authorized by, or otherwise connected to the Complainant. 
I decide on the balance of probabilities that even in the absence of evidence of actual confusion the Domain Name has been used in a way which has confused people or businesses and that under the test in Nominet’s DRS Policy 3(a)(ii) and that in the control of the Respondent the Domain Name is an Abusive Registration.
7.4  Conclusion
The Expert finds on the balance of probabilities that the Complainant has Rights in respect of a name identical or similar to the Domain Name but that the Complainant has proved, on the balance of probabilities, that the Domain Name, in the hands of the Respondent is an Abusive Registration.	
8)	Decision
For the reasons set out in detail above, having decided that the Domain Name in the hands of the Respondent is an Abusive Registration, the Expert directs that the Domain Name is transferred to the Complainant.
Niall Lawless, Nominet Expert 4th August 2008