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You are here: BAILII >> Databases >> Nominet UK Dispute Resolution Service >> Fidessa Plc v Howard [2007] DRS 4973 (10 October 2007) URL: http://www.bailii.org/uk/cases/DRS/2007/4973.html Cite as: [2007] DRS 4973 |
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Complainant: Fidessa plc
Country: UK
The Complainant is represented by Mr Alistair Gay of London
Respondent: Patrick Howard
Country: UK
fidessaplc.co.uk (the "Domain Name")
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 17 August 2007. 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 14 September 2007. I was appointed as Independent Expert on 19 September 2007 and confirmed to Nominet that I was independent of the parties and knew of no 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 13 September 2007. 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 a supplier of trading systems and other technology to participants in financial markets. It operates internationally and has a significant business.
5.2 The Complainant owns a number of trademarks including, for example, UK Mark 1320478 filed in 1987 for the word Fidessa.
5.3 The Domain Name was registered on 29 July 2007. The Respondent is unconnected with the Complainant. The Domain Name is currently used to host a web site which is a direct copy of the Complainant's web site other than telephone and e mail contact details which have been altered to ones unconnected with the Complainant.
Complainant
6.1 The Complaint in essence says that the registration is Abusive as an instrument of fraud, and was clearly registered to disrupt the Complainant's business and it is passing off and seeking to divert business from the Complainant.
Respondent
6.2 As indicated above no response has been filed.
General
Discussion and Findings
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 Rights
7.2 "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 trade mark registrations for the word Fidessa.
7.3 The Domain Name is clearly similar to the name in which the Complainant has rights. The addition of the generic term "plc" does not remove the similarity.
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 Registration
7.5 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 A non-exhaustive list of factors, which may be evidence that the Domain Name is an Abusive Registration, is set out in paragraph 3 of the Policy. These include 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. (paragraph 3a (ii) of the Policy)
7.7 There is no obvious reason why the Respondent should have any legitimate interest in any name involving the word Fidessa. The evidence showing that the Respondent has copied the Complainant's web site with altered contact details leads to a clear inference that the choice of name was part of a deliberate scheme to seek to attract e mail or telephone calls which would otherwise be made to the Complainant. Whether this was part of a fraudulent scheme as alleged is unclear - the Complainant has not provided any details about the Respondent, or what happens when e mails or phone calls are sent to the altered contact information, or indeed any real explanation of what exactly it contends that the fraud might be. It is difficult to see what legitimate reason the Respondent might have to behave in this way, but in any event I do not need to decide whether these events amount to fraud. I am satisfied that at the very least the Respondent is using the Domain Name in a way which was intended to confuse people or businesses into believing that it is connected to the Complainant. No evidence of actual confusion have been provided but given that this was clearly a deliberate scheme by the Respondent I am prepared to infer that in at least some cases he will have been successful and confusion will have occurred. Accordingly paragraph 3a (ii) of the Policy is established.
7.8 In the circumstances, I consider that the Domain Name in the hands of the Respondent, is therefore an Abusive Registrations.
Accordingly, I find 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. I therefore determine that the Domain Name be transferred to the Complainant.
Nick Gardner
10 October 2007