Netezza v Airpaid Ltd [2005] DRS 02475 (01 May 2005)

Nominet UK Dispute Resolution Service
DRS 02475
Netezza -v- Airpaid Ltd
Decision of Independent Expert

1.	Parties:
Complainant:	Netezza Corporation
US
Respondent:	Airpaid Ltd
UK
2.	Disputed Domain Name:
netezza.co.uk
3.	Procedural Background
The Complaint was received in full by Nominet on 23 March 2005.  The Complaint was validated on 30 March 2005 and was sent by Nominet to the Respondent on that date.  Nominet informed the Respondent that it had 15 working days, i.e. until 21 April 2005, to respond to the Complaint.
By 25 April 2005, no formal Response having been received from the Respondent, Nominet wrote to the Complainant confirming that no Response had been filed and invited the Complainant to request an Expert Decision.
The Complainant duly paid the fee within the relevant time limit and the matter was duly referred to me, Simon Chapman, (“the Expert”) for an Expert Decision following confirmation to Nominet that I knew of no reason why I could not properly accept the invitation to act in this case and of no matters which ought to be drawn to the attention of the parties, which might appear to call into question my independence and/or impartiality.
4.	Outstanding Formal/Procedural Issues
The Respondent has not submitted a formal response to the Complaint.  From the papers that have been submitted by Nominet to me it is apparent that they have sent the Complaint to the Respondent by post and e-mail to the contact details held on Nominet’s register.  It is also apparent from those papers that on or before 30 March 2005, the Respondent had become aware of the Complaint because it wrote to Nominet confirming receipt.  Following that communication, Nominet responded to the Respondent by informing it that if no response to the Complaint was received by the deadline, it would proceed to an expert determination, and if a response was received, mediation would precede the expert determination.  The Respondent has not filed a response.
I now move on to consider the consequences of the Respondent not submitting a response.
The procedure envisages just such a situation and provides in Paragraph 15 that:-
“c.	If, in exceptional circumstances, a Party does not comply with any provision in the Policy or this Procedure or any request by us or the Expert, the Expert will draw such inferences from the Party's non compliance as he or she considers appropriate.”
I am not aware of any exceptional circumstances to explain why the Respondent should not have responded to the Complaint, and as such believe it appropriate to proceed to a Decision. 
I will draw such inferences from the Respondent’s failure to respond as I think appropriate, but must bare in mind that there may be a number of reasons why a respondent might fail to serve a response, for example that they have nothing useful to say, or that the Complaint has not in fact come to their attention.
In the present case the communication referred to above from the Respondent to Nominet gives some indication as to why no response was filed.  They suggest that their “original legitimate business idea for registering the domain name in 2003 is not to be pursued”, and further indicate that they will be allowing the registration of the Disputed Domain Name to lapse when it next comes up for renewal in June 2005.  Their representative states in this context that “..I see no reason for spending valuable time in formally responding according to the DRS procedure..” 
5.	The Facts
The Complainant, is based in the US and has also registered a UK company under the name Netezza Corporation Ltd (incorporated on 18 November 2003).  It appears to trade in both the US (since 2000) and the UK under the name ‘NETEZZA’, providing data warehousing appliances.   
The Complainant is the proprietor of a registered Community Trade mark for the word ‘NETEZZA’ in Class 9, and which was applied for on 4 May 2001 (taking priority from an earlier US application made on 20 December 2000).
The Respondent is a UK registered company registered on 12 May 2003.  Its website (www.airpaid.co.uk) describes its activities as providing “…the convenient and easy to use business service for tracking worked-time and location-attendance of the workforce”.
On 13 June 2003 the Respondent registered the Disputed Domain Name via an agent, Namesco Ltd. The Domain Name is presently resolving to a website administered by Namesco Ltd which appears to provide web and email services to those that might wish to use domain names including the Disputed Domain Name.  
Searches conducted on Google, Yahoo, Ask and AOL for the word ‘NETEZZA’, reveals that all first page results are associated with the Complainant.
6.	The Parties Contentions
	Complainant
The Complainant contends that the Domain Name is identical or similar to a name or mark in which it has Rights, namely its registered trade mark NETEZZA.  
The Complainant asserts that the Disputed Domain Name in the hands of the Respondent is an Abusive Registration.  The Complainant does not point to any specific conduct but asserts that the Respondent has registered the Disputed Domain Name “without any cause or relation to the Netezza name and is in fact not currently using the address for any purpose”.  
The Complainant requests that the Disputed Domain Name be transferred.
Respondent
As stated above, the Respondent has not filed a Response.
7.	Discussions and Findings
	General
To succeed in this Complaint, the Complainant must, in accordance with paragraph 2 of the Policy, prove to the Expert on the balance of probabilities that:
(i)	it has Rights (as defined in paragraph 1 of the Policy) in respect of a name or mark identical or similar to the Disputed Domain Name; and
(ii)	the Disputed Domain Name in the hands of the Respondent is an Abusive Registration (as defined in paragraph 1 of the Policy).
Burden
Despite the absence of a response from the Respondent, the Complainant must make out its case to the Expert on a balance of probabilities.  It is still incumbent on the Expert to assess the admissibility, relevance, materiality and weight of the evidence as presented in the Complaint (see Paragraph 12b of the Procedure).
Complainant’s Rights
The Complainant trades as NETEZZA and is the proprietor of a registered Community Trade Mark for the same word.  
The first (.uk) and second (.co) levels of the Domain Name should be discounted for the purposes of comparison as being of a generic nature.  I find that the Complainant has established that it has Rights in respect of a name or mark which is identical to the Domain Name.
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 Complainants Rights.
A non-exhaustive list of factors, which may be evidence that the Disputed Domain Name is an Abusive Registration, is set out in paragraph 3 of the Policy.  The Complaint does not address any of these specific grounds, but generally asserts that the Respondent’s registration of the Domain Name was without cause.  I consider that the following “factors” only from that list may be relevant in this case:
i.              Circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily:
A.               for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly associated with acquiring or using the Domain Name;
B.               as a blocking registration against a name or mark in which the Complainant has Rights; or
C.              for the purpose of unfairly disrupting the business of the Complainant;
This dispute relates to the word or name NETEZZA.  From a Google search that I carried out, I stumbled across a company profile of Netezza Corporation on Yahoo Finance, which asserted that NETEZZA is the Urdu word for “results”.  Having taken advice from Urdu speakers in my office, I am told that this may be one way of writing the Urdu word in English, but because of the nature of Urdu, it can be translated differently.  It would seem therefore that the word or mark NETEZZA, is far from a run of the mill word or term that someone might choose to use, but is in fact a very distinctive term.  As indicated above, if one conducts a search on various search engines, one is solely directed to information concerning the Complainant.
The Complainant asserts, in effect, that it has the goodwill in the name, and that there is no good reason for the Respondent to have registered a domain name incorporating the Complainant’s mark.  
Whilst the Complainant does not point to any evidence of actual disruption to its business, I am of the opinion that in the circumstances of the Complainant trading under such a distinctive name, pre-dating by several years the registration of the Disputed Domain Name, and the very low probability of the Respondent having coincidentally chosen the Disputed Domain Name, that a prima facie case has been made out, such that I believe on the balance of probabilities the registration is Abusive. In that respect it seems a reasonable inference that the purpose of the registration was either that set out in paragraphs A-C of paragraph 3 of the Policy, or otherwise unfair or detrimental to the Complainants Rights.  Of course this finding is reached solely on the basis of the information that has been supplied to me by the Complainant, and my own investigations conducted on the internet.  
In normal circumstances, that finding might of course be reversed if the Respondent were to give a credible explanation of why they chose to register the Disputed Domain Name.  In the present case the Respondent chose not to file a Response, perhaps for the reasons explained in their communication with Nominet.  That is there prerogative. However the consequence of not doing so is that I am not inclined to accept the suggestion that the registration was legitimate because firstly there is no substance or explanation behind that assertion, and secondly because the assertion is not backed up by a declaration that the information is true (as is contained in a formal response – see paragraph 5(iv) of the procedure).  
It therefore remains that the Claimant has in my opinion raised a sufficient case for a finding that the registration was Abusive, and in the absence of an appropriate explanation by the Respondent, that finding prevails. 
8.	Decision
For the reasons set out above, I find that the Complainant has Rights in respect of a name or mark which is similar or identical to the Domain Name, and that the Domain Name, in the hands of the Respondent, is an Abusive Registration.  

Simon Chapman							1 May 2005