Westmore · UDRP DecisionEbaysalwars.com, Ebaysarees.com
The Panel ordered transfer of both disputed domain names. It found them confusingly similar to the Complainant’s EBAY mark, found no rights or legitimate interests, and concluded that both were registered and used in bad faith. The active <ebaysarees.com> website sold merchandise while copying the Complainant’s logo presentation; <ebaysalwars.com> was found to have been registered for a similar purpose and passively used in bad faith.
The timeline behind ebaysalwars.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
How each disputed name was decided in this proceeding.
The decision illustrates how active impersonating use of one domain can provide important context for assessing a related, inactive domain held by the same respondent. The combination of demonstrated prior knowledge, commercial sales, copied logo presentation, parallel domain construction, and default supported findings against both the actively used and passively held domains.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION eBay Inc. v. Praveen Kumar Reddy Case No. D2016-1551 1. The Parties The Complainant is eBay Inc. of San Jose, California, United States of America, represented by Holland & Hart, LLP, United States of America (“USA”). The Respondent is Praveen Kumar Reddy of Andhra Pradesh, India. 2. The Domain Names and Registrar The disputed domain names <ebaysalwars.com> and <ebaysarees.com> (the “Domain Names”) are registered with PDR Ltd. d/b/a PublicDomainRegistry.com. 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 28, 2016. The Center transmitted its verification request to the Registrar on July 29, 2016. The Registrar replied on July 30, 2016, confirming that it had received a copy of the Complaint; that the Domain Names are registered with it; that the Respondent is the current registrant; that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applies; that the Domain Names were registered on December 11, 2015 and July 28, 2012, and will expire on December 11, 2016 and July 28, 2017 respectively; that a lock has been applied and will be maintained until their expiry so that this proceeding can continue; and that English was the language used in the registration. The Registrar also provided the full contact details held in respect of the Domain Names on its WhoIs database. The Center verified that the Complaint satisfied the formal requirements of the UDRP, 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 paragraphs 2 and 4 of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 2, 2016. In accordance with paragraph 5 of the Rules, the due date for Response was August 22, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 23, 2016. The Center appointed Jonathan Turner as the sole panelist in this matter on August 31, 2016. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent, and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules. 4. Factual Background The Complainant operates a leading Internet marketplace through its main official website at “www.ebay.com”. According to data provided by Alexa, this website is the second most visited website in the shopping category in the world. The Complainant has over 162 million active buyers. The value of goods sold through this website exceeded USD 76 billion in 2014. The Complainant’s business was founded in 1995. The Complainant has registered EBAY as a trademark in numerous countries, including the USA with filing date November 17, 1997, and India with filing date November 10, 2003. The Complainant has also registered numerous Domain Names consisting of “ebay” followed by a generic or country code Top-Level Domain (“TLD”) suffix. As stated above, the Domain Names were registered on December 11, 2015 and July 28, 2012, respectively. The Domain Name <ebaysarees.com> is directed to a website offering sarees for sale. This website includes representations of the name “ebay Sarees” in which the word “ebay” is separated from the word “Sarees” and presented in a manner identical to the Complainant’s “ebay” logo, viz. with lower case, contiguous letters, and in the same font and colour scheme as the Complainant’s logo. The Complainant sent a cease and desist letter to the Respondent on March 10, 2016. The Respondent replied on March 23, 2016, stating that it had previously offered goods through the Complainant’s website at “www.ebay.com” between 2005 and 2010 and had recently begun using the Domain Name <ebaysarees.com> on a very small scale. The Complainant reverted the same day and again on March 30, 2016, reiterating its demand that the Respondent cease its use and registration of this Domain Name. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Names are identical or confusingly similar to its registered trademark EBAY which they incorporate in its entirety and from which they differ only in the addition of the generic words “sarees” and “salwars” and the generic TLD suffix, “.com”. The Complainant submits that the Respondent has no rights or legitimate interests in the Domain Names. It states that the Respondent is not an authorized dealer, distributor or licensee of the Complainant and is not commonly known by the term EBAY. According to the Complainant, the Respondent is unduly exploiting the goodwill for his financial gain and attempting to deceive Internet users into thinking that they are dealing with the Complainant or an affiliate of the Complainant. The Complainant alleges that the Domain Names were registered and are being used in bad faith. It points out that its reputation and registrations of the mark EBAY predate the registration of the Domain Names and that the Respondent admitted in his email to the Complainant that he had been a regular visitor of the Complainant’s website at “www.ebay.com” and had offered goods on it between 2005 and 2010 before the Domain Names were registered. The Complainant contends that the Respondent is using the Domain Name <ebaysarees.com> intentionally to attract Internet users to his website for commercial gain by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of his website within the meaning of paragraph 4(b)(iv) of the UDRP. The Complainant submits that the Respondent registered the Domain Name <ebaysarees.com> with the same bad faith intent. The Complainant requests a decision that the Domain Names be transferred to it. B. Respondent As stated above, the Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In accordance with paragraph 4(a) of the Policy, the Complainant must prove: (i) that the Domain Names are identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Names; and (iii) that the Domain Names have been registered and are being used in bad faith. It is appropriate to consider each of these requirements in turn. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondent’s default in failing to file a response. This includes the acceptance of plausible evidence of the Complainant which has not been disputed. A. Identical or Confusingly Similar The Panel finds on the evidence that the Complainant has registered and unregistered rights in the mark EBAY. The Panel further finds that the Domain Names are confusingly similar to this mark, from which they differ only in the addition of generic elements, namely the words “sarees” and “salwars” (which describe common items of clothing associated with the Indian subcontinet) and the generic TLD suffix, “.com”. The Panel considers that many Internet users would think that the Domain Names locate websites of the Complainant through which these items of clothing are sold. The first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests In the view of the Panel, the Respondent’s use of the Domain Name <ebaysarees.com> as described above has not been for a bona fide offering of goods or services. On the contrary, it has been a use in bad faith with the intention and effect of deceiving Internet users into believing that the Respondent’s website is operated by or associated with the Complainant. As for the Domain Name <ebaysalwars.com>, the Respondent has not used this for any offering of goods or services, let alone a bona fide offering. It is clear that the Respondent is not commonly known by either of the Domain Names. Nor has the Respondent made a legitimate, noncommercial or fair use of either of the Domain Names. In the case of the Domain Name <ebaysarees.com> the use has been commercial and unfair. In the case of the Domain Name <ebaysalwars.com> there has been no active use. In the circumstances there is no other basis on which the Respondent could claim a right or legitimate interest. The second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith In the circumstances, the Panel finds that by using the Domain Name <ebaysarees.com>, the Respondent has intentionally attempted to attract Internet users to his website for commercial gain, namely the promotion and sale of the Respondent’s merchandise, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of this website. The Respondent knew of the Complainant’s Internet marketplace at “www.ebay.com” and must have chosen this Domain Name for precisely this purpose. This inference is reinforced by the Respondent’s copying of the Complainant’s logo on his website. The Panel considers that the Respondent intended and probably succeeded in attracting Internet users to his website by the use of this Domain Name which is confusingly similar to the Complainant’s mark. In accordance with paragraph 4(b)(iv) of the UDRP this constitutes evidence of registration and use of the Domain Name <ebaysarees.com> in bad faith. This presumption is not displaced by any contrary evidence in the file. The Panel accordingly concludes that this Domain Name was registered and is being used in bad faith. In the circumstances, the Panel infers that the Respondent registered the similar Domain Name <ebaysalwars.com> for a similar purpose. Furthermore by retaining this Domain Name in the circumstances, the Respondent has made a passive bad faith use of it. Accordingly the Panel finds that the Domain Name <ebaysalwars.com> was registered and is being used in bad faith. All three substantive requirements of the UDRP are satisfied in relation to both Domain Names and it is appropriate to direct their transfer to the Complainant. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names, <ebaysalwars.com> and <ebaysarees.com> be transferred to the Complainant. Jonathan Turner Sole Panelist Date: September 5, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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