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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Alliance & Leicester plc v Sidorkin [2006] DRS 4136 (24 November 2006) URL: http://www.bailii.org/uk/cases/DRS/2006/4136.html Cite as: [2006] DRS 4136 |
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Complainant: Alliance & Leicester plc
Country: UK
Respondent: Sidorkin
Country: Russia
This complaint concerns the following eleven domain names (the "Domain Names"):
(1) alliance-leicetercommercialbank.co.uk
(2) alliance-leicestercmmercialbank.co.uk
(3) alliance-leicesercommercialbank.co.uk
(4) alliance-leicestrcommercialbank.co.uk
(5) alliance-leicesterommercialbank.co.uk
(6) alliance-leicestecommercialbank.co.uk
(7) alliance-leiestercommercialbank.co.uk
(8) alliance-leicstercommercialbank.co.uk
(9) alliance-lecestercommercialbank.co.uk
(10) alliance-licestercommercialbank.co.uk
(11) alliance-leicestercomercialbank.co.uk
3.1 A Complaint in respect of the Domain Name under Nominet UK's Dispute Resolution Service Policy (the "Policy") was received from the Complainant on 19 October 2006. Nominet forwarded the Complaint to the Respondent. No Response was received.
3.2 The dispute was referred for a decision by an Independent Expert following payment by the Complainant of the required fee in accordance with paragraph 5d of Nominet's Procedure for the conduct of proceedings under the Dispute Resolution Service Procedure (the "Procedure") on 21 November 2006. It was agreed that a standard fee be charged even though there were 11 domain names. I was appointed as Independent Expert on 21 November 2006 and confirmed to Nominet that I was independent of the parties. I pointed out that I had decided a previous Complaint by the same Complainant (DRS03280) but that I did not consider that affected my independence and I knew of no other facts or circumstances that might call into question my independence in the eyes of the parties.
4.1 Under Paragraph 5a of the Procedure the Respondent was required to submit a Response to the Complaint to Nominet by 15 November 2006. The Respondent has failed to do so.
4.2 Paragraph 15b of the Procedure provides as follows: "If, in the absence of exceptional circumstances, a Party does not comply with any time period laid down in this Policy or Procedure, the Expert will proceed to a Decision on the Complaint".
4.3 It is the view of the Expert that there are no exceptional circumstances. The proceedings have been communicated to the Respondent and the Respondent has made no attempt to explain its lack of response and there is no evidence to suggest that anything exceptional has occurred.
4.4 The Expert is accordingly authorised under the Procedure to proceed to decide the Complaint. Under paragraph 16a of the Procedure the Expert should reach a decision based on the Parties' submissions (which consists of the Complaint and its Annexes in this case) and the Policy and Procedure. In the absence of any exceptional circumstances the Expert is also entitled to draw such inferences from the Respondent's non-compliance with the Policy or Procedure as he considers appropriate (paragraph 15c of the Procedure).
5.1 The Complainant is an extremely well known UK financial institution. For present purposes the decision in DRS 1918 summarises sufficiently its nature:
"The Complainant is one of the UK's major financial services companies. Its origins trace back to 1852. Following the merger between the Alliance Building Society and Leicester Building Society, the Complainant (together with its associated companies) has been trading under the trade marks ALLIANCE & LEICESTER and ALLIANCE LEICESTER, and other marks containing these marks (together the "A&L Marks") since 1985 in the UK and other countries. The Complainant has been a member of the FTSE 100 since 1997, when it converted from its original mutual building society status. The Complainant supplies a broad range of financial services to personal and commercial customers under the A&L Marks, including through the Internet. Its aggregate operating income for 2001 to 2003 was approximately £3,990 million. The Complainant has around 5.5 million personal customers. ALLIANCE & LEICESTER is a household name in financial services and the Complainant advertises its services widely through the Internet, direct marketing and TV. The Complainant's advertising expenditure for 2003 was approximately £46 million. The ALLIANCE & LEICESTER brand has been awarded "Superbrand Status" by The Brand Council. The Complainant owns at least 41 UK, 4 European Community and 11 other national, including 2 Australian, trade mark registrations for the A&L Marks."5.2 I adopt the term A&L Marks below. These include a registration for ALLIANCE & LEICESTER COMMERCIAL BANK. The Complainant operates part of its business under the name Alliance & Leicester Commercial Bank and operates a web site www.alliance-leicestercommercialbank.co.uk.
5.3 The Domain Names were registered in September 2006. The Respondent is unconnected with the Complainant.
5.4 All of the Domain Names bar one resolve to a web site which the evidence filed by the Complainant shows is an almost exact copy of the Complainant's own web site. There is one exception which resolves to an "under construction" page.
5.5 The evidence filed shows that a user accessing the site to which the majority of the Domain Names resolve may be led to disclose confidential details about his or her account, not appreciating that the site is not a genuine site operated by the Complainant. The Complainant has provided evidence that accounts may have been compromised as a result.
5.6 The precise identity and legal nature of the Respondent is unclear.
Complainant6.1 The Complaint's contentions can be summarised as set out below.
6.2 The Domain Names are all obvious misspellings or variations of one of its extremely well known business names.
6.3 They are being used as an instrument of fraud. Users who make a simple spelling error are tricked into thinking they are at the Complainant's own website and are then misled into providing security related information which can be used to unlawfully access their accounts.
6.4 Accordingly the Domain Names were registered and/or have been used in a manner which took unfair advantage of and/or was unfairly detrimental to the Complainant's rights. The Respondent has registered the Domain Names for the purpose of unfairly disrupting the business of the Complainant.
Respondent6.5 As indicated above no Response has been filed.
General
7.1 The Complainant is required under Clause 2b of the Policy to prove to the Expert on the balance of probabilities that:
(a) the Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and
(b) the Domain Name, in the hands of the Respondent, is an Abusive Registration.
Complainant's Rights7.2 "Rights" are defined in the Policy and in the Procedure. Rights "includes, but is not limited to, rights enforceable under English law." The Complainant is the proprietor of the A & L Marks. I am also satisfied that it has very substantial goodwill and reputation in the name Alliance & Leicester as a result of its trading activities over many years. I am also satisfied that those Rights extend to the name Alliance & Leicester Commercial Bank.
7.3 The Domain Names are all clearly similar to the name in which the Complainant has rights. They are all self evidently misspellings or variants of that name.
7.4 Accordingly I find that the Complainant does have Rights in respect of a name or mark which is identical or similar to the Domain Names.
Abusive Registration7.5 Paragraph 1 of the Policy defines "Abusive Registration" as a Domain Name which either:
(a) 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
(b) has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant's Rights.7.6 The evidence in this case clearly shows that 10 out of 11 of the Domain Names are being used as part of a fraudulent scheme to obtain confidential account details from customers of the Complainant. I infer that the eleventh Domain Name is "work in progress" which was also intended to be used in the same way.
7.7 Although the Policy is most commonly used to deal with disputes as to alleged "cyber squatting" and other such issues, I see no reason why its ambit is not wide enough to deal with fraudulent activity of this nature. In particular it seems to me that the activities of the Respondent clearly amount to using the Domain Names for unfairly disrupting the Complainant's business. As such there is clear evidence that they are Abusive Registrations under paragraph 3aiC of the Policy.
Accordingly, I find that the Complainant has Rights in respect of a name or mark which is similar to the Domain Names and that the Domain Names in the hands of the Respondent are each Abusive Registrations. I therefore determine that the Domain Names should be transferred to the Complainant.
………………………………
Nick Gardner
24 November 2006