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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Westdev Limited v. Private Data

Case No. D2007-1903

1. The Parties

The Complainant is Westdev Limited, of Tewkesbury, Gloucestershire, United Kingdom of Great Britain and Northern Ireland, represented by Jonathan Turner, and Sprecher Grier Halberstam LLP, United Kingdom of Great Britain and Northern Ireland.

The Respondent is Private Data, of Tewkesbery, Gloucestershire, United Kingdom of Great Britain and Northern Ireland.

2. The Domain Name and Registrar

The disputed domain name, <numberone.com> (the “Domain Name”), is registered with GoDaddy.com, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 20, 2007. On December 21, 2007, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 28, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was January 17, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 18, 2008.

The Center appointed Tony Willoughby as the sole panelist in this matter on January 22, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

Following the launch of the Complaint, the Complainant emailed the Center seeking the Center’s assistance in eliciting certain information from the Registrar. The Center has forwarded the email exchange to the Panel, but it calls for no action on the part of the Panel.

4. Factual Background

The Complainant and its predecessor have traded under the name, “Number One Systems”, since 1982. It is engaged in the provision of software for designing printed circuit boards for electronic devices. It is a substantial business.

The Complainant’s predecessor registered the Domain Name in 1995.

In October 2006, an American citizen (his identity is not relevant for the purposes of this decision) had his credit card stolen. The thief then used the credit card to undertake various fraudulent transactions. Using the stolen credit card, yet impersonating a director of the Complainant, he was somehow able to induce Network Solutions, the original registrar, (a) to change the contact details on the Whois database for the Domain Name and (b) to transfer the Domain Name registration to the Registrar (on or about November 27, 2006).

As can be seen from the heading to this decision, although the name of the registrant was changed, the postal town and postal code were not changed. Accordingly, all the hardcopy documents in this case, which were intended for the Respondent, have been delivered to the Complainant.

Throughout, the Domain Name has continued to be connected to the Complainant’s website.

5. Parties’ Contentions

A. Complainant

The Complainant recites the above facts and contends that the Domain Name is identical or confusingly similar to a trademark in which it has unregistered rights, that the Respondent has no rights in respect of the Domain Name and that the Domain Name was registered and is being used in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove that:

(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name has been registered in bad faith and is being used in bad faith.

B. Identical or Confusingly Similar

The Complainant has put before the Panel a wealth of evidence to support the Complainant’s contention that it has common law rights in respect of its names, Number One Systems and Number One/No 1.

The Panel finds that the Domain Name, which itself appears throughout the Complainant’s business literature, is identical or confusingly similar to trademarks in which the Complainant has rights.

C. Rights or Legitimate Interests

As can be seen from the factual background setout in Section 4 above, the Domain Name was taken away from the Complainant without the Complainant’s knowledge and by deceit. In effect it was stolen from the Complainant.

In these circumstances, it seems inconceivable that the Respondent can have any rights or legitimate interests in respect of the Domain Name.

The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

D. Registered and Used in Bad Faith

The factual background is such that a finding of bad faith registration and use is inevitable.

The Domain Name was stolen from the Complainant by someone, who has not yet been identified. He appears to be someone who has a particular knowledge of the Complainant, because, according to the Complainant, something similar was done by the same person in relation to another domain name of the Complainant, a domain name in the ‘.uk’ domain.

Since he acquired the Domain Name, the Respondent has left it connected to the Complainant’s website, which is the reason it took the Complainant some time to notice the changes to the registration particulars for the Domain Name.

Even if that were thought to be a non-use, there is ample authority in the form of previous decisions under the Policy (e.g. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003) for the proposition that passive use can in certain circumstances constitute abusive use.

In this case, the Respondent’s motives are a complete mystery, but it is fair to assume that someone who has gone to the trouble of stealing a domain name has an abusive intent. He is clearly someone with a knowledge of domain name registrations. For example, he will have known that on expiry of the Domain Name, there would have been a major disruption to the Complainant’s business, which relies to a considerable extent on its use of the Domain Name.

Additionally, the fact that the Domain Name, which on any basis is rightfully the Complainant’s, is out of its control and in the hands of a third party, who is evidently ill-disposed towards the Complainant, is itself an abusive threat hanging over the Complainant’s head and falls to be condemned under the Policy.

The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <numberone.com>, be transferred to the Complainant.

Tony Willoughby
Sole Panelist

Dated: February 2, 2008