Westmore · UDRP DecisionAizel.com
The Panel found the domain name identical to the Complainant’s AIZEL mark and accepted an unrebutted prima facie case that the Respondent lacked rights or legitimate interests. The Complaint nevertheless failed because the domain was registered in 2000, almost 15 years before the Complainant registered its trademark, and there was no evidence of earlier trademark rights, a pre-2000 business, targeting of nascent rights, or later acquisition of the domain by the Respondent. The Panel therefore found that registration in bad faith had not been proved and denied the Complaint.
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The case illustrates the distinction between the UDRP’s three cumulative elements. Exact trademark identity and an unrebutted showing of no rights or legitimate interests were insufficient because the Complainant could not prove bad faith when the domain was registered. The decision also demonstrates the limited value of passive holding and alleged portfolio conduct where the domain substantially predates the complainant’s rights and there is no evidence of targeting or later acquisition.
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 Art-Four Development Limited v. Tatiana Meadows Case No. D2019-1311 1. The Parties The Complainant is Art-Four Development Limited, United Kingdom, represented by Alexander Khorkin, Russian Federation. The Respondent is Tatiana Meadows, United States of America (“United States”). 2. The Domain Name and Registrar The disputed domain name <aizel.com> (the “Disputed Domain Name”) is registered with Gandi SAS (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 7, 2019. On June 7, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 11, 2019, 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” or “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 the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 12, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 2, 2019. The Respondent sent an automated reply on June 12, 2019. The Center notified the commencement of panel appointment on July 3, 2019. The Center appointed John Swinson as the sole panelist in this matter on July 17, 2019. 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. 4. Factual Background The Complainant is Art-Four Development Limited, a company incorporated in the British Virgin Islands. The Complainant is the owner of Russian registered trade mark number 320997 for AIZEL, registered on July 2, 2015 (the “Trade Mark”). The Complainant licenses the Trade Mark in various territories, mostly for marketing and sale of luxury fashion merchandise, including for example to Russian luxury Internet retailer АЙЗЕЛ.РУ, which operates through <aizel.ru>. The Respondent is Tatiana Meadows, an individual of the United States. No response was received from the Respondent and therefore little information is known about the Respondent. The Disputed Domain Name was registered on September 19, 2000. The Disputed Domain Name does not currently resolve to an active website. 5. Parties’ Contentions A. Complainant The Complainant makes the following submissions. Identical or Confusingly Similar The Disputed Domain Name incorporates the entirety of the Trade Mark, without any additional letters, numbers or characters and is therefore identical to the Trade Mark. The suffix “.com” is irrelevant when analyzing whether a domain name is identical or similar to a trademark. Rights or Legitimate Interests The Respondent does not have rights in the Disputed Domain Name because: - The Disputed Domain Name has never been used by the Respondent for any purpose. The Disputed Domain Name has never contained any information related to the Respondent and has been parked on GANDI since registration. - The Respondent has never used or demonstrated preparations to use the Disputed Domain Name or a name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services. - There are no registered trade marks, which have any connection with the Respondent, her name, business name or other business interests, and there is no plausible reason why the Respondent has chosen the Disputed Domain Name. Registered and Used in Bad Faith As at the date of registration, the Respondent had nothing to do with the Trade Mark. The Respondent has registered approximately 30 domain names not connected with the Respondent or its business activity. None of these domain names are used by the Respondent for bona fide offering of goods or services. The Complainant has tried to communicate with the Respondent through numerous methods and the Respondent has not replied. The phone numbers for the Respondent received from the web-service Domain Big Data are not correct. The above shows that there is a clear picture of passive holding of the Disputed Domain Name. It is not possible to avoid the conclusion that the Respondent is "cybersquatting" for the purpose of selling of the domain names to the owners of trademarks for valuable consideration or for the preventing of trade mark owners to reflect their registered or non-registered trade marks in the domain names. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely: (i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) the Disputed Domain Name has been registered and is being used in bad faith. The onus of proving these elements is on the Complainant even though the Respondent failed to submit a response. A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark. The Disputed Domain Name incorporates the entirety of the Trade Mark, with no additional elements. The fact that the Disputed Domain Name was registered before the Complainant’s Trade Mark does not preclude a finding of identity or confusing similarity (see section 1.1.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The Disputed Domain Name is identical to the Trade Mark. The Complainant succeeds on the first element of the Policy. B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests. The Panel considers the Complainant has made out a prima facie case. This finding is based on the following: - The Respondent is not using (and there is no evidence that the Respondent has demonstrable preparations to use) the Disputed Domain Name in connection with a bona fide offering of goods or services. The Complainant has provided evidence that the Disputed Domain Name has never contained any information related to the Respondent and has been parked with the Registrar since registration. - The Complainant has not authorised the Respondent to use the Trade Mark in the Disputed Domain Name. - There is no evidence that the Respondent has been commonly known by the Disputed Domain Name, or has registered or common law trade mark rights in relation to this name. - The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. The website at the Disputed Domain Name currently resolves to a parking page and there is no active website associated with the Disputed Domain Name. The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The Respondent registered the Disputed Domain Name on September 19, 2000. The Complainant registered the Trade Mark on July 2, 2015. There is no evidence before the Panel that the Complainant was operating its business prior to 2000. Where a domain name has been registered before a complainant has acquired trade mark rights, only in exceptional cases would a complainant be able to prove a respondent’s bad faith (see sections 1.1.3 and 3.8 of the WIPO Overview 3.0 ). An exception to this general position is where the Complainant can establish that the Respondent’s intent in registering the domain name was to unfairly capitalise on the complainant’s nascent (typically as yet unregistered) trademark rights (see section 3.8.2 of the WIPO Overview 3.0 ). The Panel finds that in the present case, the Complainant has failed to show that the Respondent had any bad faith intention when registering the Disputed Domain Name. The registration of the Disputed Domain Name predates the Complainant’s Trade Mark by almost 15 years and the Complainant has not asserted or provided any evidence that the Complainant had any registered or common law trademark rights before the date of registration of the Disputed Domain Name or that the Respondent acquired the Disputed Domain Name on a later date. As stated by the panel in Coolside Limited v. Get On The Web Limited , WIPO Case No. D2016-0335 : “In those circumstances, it hardly needs stating that the Respondent cannot conceivably have been aware of the existence, or even potential existence, of the Complainant or of any rights it might subsequently acquire in the [trade mark] at the time of registration. In this Panel’s view, therefore, the Domain Name cannot conceivably have been registered in bad faith.” “Aizel” is a female first name, believed to be of Sanskrit origin. Indeed, it is the first name of Aizel Trudel, the founder of <aizel.ru>. The Complainant nonetheless argues that the Respondent’s registration and use of the Disputed Domain Name is in bad faith on the grounds that the following facts support a finding that the Respondent is cybersquatting: - As at the date of registration, the Respondent had nothing to do with the word “aizel”. - The Respondent has registered approximately 30 domain names not connected with the Respondent or its business activity or noncommercial or fair use. None of these domain names are in use by the Respondent for bona fide offering of goods or services or noncommercial or fair use. However, the Complainant does not submit that these are the trade marks of others. - The Complainant has tried to communicate with the Respondent through numerous methods and the Respondent has not replied. The phone numbers for the Respondent received from the web-service Domain Big Data are not correct. The Respondent’s lack of rights or legitimate interests in the Disputed Domain Name, pattern of passive use of multiple domain names, and failure to respond to any communications may be relevant factors which in some cases may contribute to a finding of bad faith. However, it is weak evidence of bad faith use. In this case, the Panel is not required to decide whether the Disputed Domain Name has been used in bad faith, as the Complainant has failed to prove that the Disputed Domain Name was registered in bad faith. No amount of subsequent bad faith use can convert a good faith registration into a bad faith registration (see Green Tyre Company Plc. v. Shannon Group , WIPO Case No. D2005-0877 and Sheryl Sandberg & Dave Goldberg Family Foundation v. WhoisGuard, Inc. / Hecham Ghazal , WIPO Case No. D2019-0213 ). In light of the above, the Panel finds that the Complainant does not succeed on the third element of the Policy. 7. Decision For the foregoing reasons, the Complaint is denied. John Swinson Sole Panelist Date: July 29, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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