Nominet UK Dispute Resolution Service
DRS 04625
National Westminster Bank plc
–v–
Mr. Kenny Rogers
Decision of Independent Expert
1. Parties:
Complainant: | National Westminster Bank plc |
Address: | |
Postcode: | |
Country: | GB |
Respondent: | Mr Kenny Rogers |
Address: | |
Postcode: | |
Country: |
GB |
2. Domain Name: natwestuk-bank.co.uk ("the Domain Name").
3. Procedural Background:
The Complaint was lodged with Nominet on 19 April 2007. Nominet validated the Complaint and notified the Respondent of the Complaint on 20 April 2007 and informed the Respondent that he had 15 days within which to lodge a Response. The Respondent failed to respond. Mediation not being possible in those circumstances, Nominet so informed the Complainant and on 21 May 2007 the Complainant lodged the appropriate fee for a decision of an Expert pursuant to paragraph 7 of the Nominet UK Dispute Resolution Service Policy ("the Policy") and paragraphs 5(d) and 8 of the Nominet UK Dispute Resolution Service Procedure ("the Procedure").
Andrew Murray, the undersigned, ("the Expert") has confirmed to Nominet that he knew of no reason why he could not properly accept the invitation to act as Expert in this case and further confirmed that he knew of no matters which ought to be drawn to the attention of the parties, which might appear to call into question his independence and/or impartiality. On 30 May 2007, Nominet invited the undersigned, the Expert, to provide a decision on this case.
4. Outstanding Formal/Procedural Issues (if any):
The Respondent has not submitted a Response to Nominet in time (or at all) in compliance with paragraph 5(a) of the Procedure.
The Expert has seen copy communications from Nominet to the Respondent and has no reason to doubt that the Respondent has been properly notified of the Complaint in accordance with paragraphs 2 and 4(a) of the Procedure.
Paragraph 15(b) of the Procedure provides, inter alia, that: "If in the absence of exceptional circumstances, a Party does not comply with any time period laid down in this Policy or the Procedure, the Expert will proceed to a Decision on the complaint." There is no evidence before the Expert to indicate the presence of exceptional circumstances; accordingly, the Expert will now proceed to a Decision on the Complaint and notwithstanding the absence of a Response.
The lack of a Response does not entitle the Complainant to a default judgement. The Complainant must still prove their case to the required degree. The Expert will evaluate the Complainant's evidence on its own merits and will draw reasonable inferences from it in accordance with paragraph 12(b) of the Procedure. Paragraph 15(c) of the Procedure provides that: "If, in the absence of exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure …….. , the Expert will draw such inferences from the Party's non-compliance as he or she considers appropriate."
Generally, the absence of a Response from the Respondent does not, in the Expert's view, entitle an Expert to accept as fact all uncontradicted assertions of the Complainant, irrespective of their merit. In this case it seems to the Expert that the probable facts speak for themselves and that it is not necessary to draw any special inferences. The Expert finds that the probable facts asserted by the Complainant and set out in the following section are indeed facts.
5. The Facts
6. The Parties' Contentions
Complainant:
The Complainant contends that:
The Complainant has rights in the Domain Name because:
6.7 The Respondent has no apparent rights to the Domain Name.
The Domain Name in the hands of the Respondent is abusive as:
Respondent:
6.15 The Respondent has not responded.
7. Discussion and Findings
7.1 General
According to paragraph 2 of the Policy, in order to succeed in this complaint, the Complainant has to prove to the Expert that, 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.
These matters must be proven by the Complainant, notwithstanding the failure by the Respondent to respond. The effect of the Respondent's default is rather that, under paragraph 15(c) of the Procedure (there being no exceptional circumstances in this case) the Expert is required to draw such inferences from the Respondent's non-compliance as he considers appropriate.
7.3 Abusive Registration
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."
Under paragraph 3(a) of the Policy is listed a non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration. The Complainant has indicated that they believe that in particular they may make out a claim under paragraph 3(a)(i)(C):
The Respondent has registered or otherwise acquired the Domain Name primarily for the purpose of unfairly disrupting the business of the Complainant.
And further under paragraph 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.
7.4 Finding
8. Decision:
In light of the above findings, namely that the Complainant has Rights in respect of a name or mark which is similar to the Domain Name and that the Domain Name, in the hands of the Respondent, is an Abusive Registration, the Expert directs that the Domain Name be transferred to the Complainant.
Andrew Murray Date: 7 June 2007