WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

El Baik Food Systems Company SA v. Egyptianit Eit

Case No. D2007-1421

1. The Parties

The Complainant is El Baik Food Systems Company SA, of Luxembourg, represented by Abu-Ghazaleh Legal Office of Jordan.

The Respondent is Egyptianit Eit, of Cairo, Egypt.

2. The Domain Name and Registrar

The disputed domain name is registered with Wild West Domains, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 25, 2007. On September 26, 2007, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the domain name at issue. On September 26, 2007, Wild West Domains, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 15, 2007. The Center verified that the Complaint together with the amendment to 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 October 17, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was November 6, 2007. No formal Response was filed with the Center. However, the Respondent sent emails to the Center on October 9, 12, 19 and 25, which were respectively acknowledged by the Center.

On October 31, 2007, the Complainant requested that the proceedings be suspended, to seek an amicable transfer of the disputed domain name. In the event, the Complainant did not formalize that request by a signed communication. In a further email to the Center on November 13, 2007, the Complainant enclosed a copy of a communication it had received from the Respondent. That communication stated, among other things, that the Respondent was waiting to hear from the Complainant “in order to take the steps to settle this matter once and for all and with the other party of that dispute too who is asking us to compensate him for the loss of the domain as the result of our prospective mutual agreement”. The Complainant stated that the Respondent had then orally sought an amount of any fees refunded to the Complainant and, since the Complainant believed this request to demonstrate a lack of good faith, requested a continuation of these proceedings. The Respondent made a further communication to the Center on November 18, 2007 which mentioned that “we did answer him [the Complainant] but he intentionally didn’t respond” and claimed that the proper Respondent was instead “ALBAIK”.

The Center appointed James A. Barker, Mohamed-Hassam Loutfi and Colin Yee Cheng Ong as panelists in this matter on December 11, 2007. The Panel finds that it was properly constituted. Each member of 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. The language of the proceeding is English, being the language of the Domain Name Registration and Service Agreement, pursuant to the paragraph 11(a) of the Rules, and also in consideration of the fact that there is no express agreement to the contrary by the parties.

The Panel finds that the proceedings have been conducted in accordance with the Rules and the Policy. Having gone through the series of communications as set out above (under the section on procedural history), the Panel concludes that the Center has properly notified the Respondent of this proceeding and has discharged its responsibility under paragraph 2(a) of the Rules. The Panel has reviewed the parties submissions and, in the light of this material, the Panel finds as set out below.

4. Factual Background

The Respondent did not file a Response to the substantive assertions in the Complaint. The following facts, drawn from the Complaint, the case file, and the Panel’s own direct knowledge, are therefore not in dispute.

The Complainant operates a chain of fast food outlets in Saudi Arabia, that primarily sells ‘broasted’ chicken and shrimp. The Complainant explains that the term ‘broast’ is commonly used in Middle Eastern countries to refer to roasted chicken breast. The Complainant’s business was founded in 1986 in Jeddah, Saudi Arabia.

The Complainant owns registered trademarks for the mark ALBAIK, rendered alternatively in roman script and in Arabic, as well as an associated device mark which depicts a drawing of a chicken in a bow tie and a hat. Those marks are registered in various Arab countries (although not apparently in Egypt where the Respondent resides) and in non-Arab countries.

The Complainant provided evidence that the top 9 results in a Google search for ‘al baik saudi arabia’ all apparently relate to the Complainant and its business.

The disputed domain name was registered on May 7, 2003.

At the date of this decision the disputed domain name reverted to an active website relating to the “Al-Baik Fast Food Industrial Processing Co”., and provides information apparently about the business conducted by that entity. The Complainant also provided a copy of a similar undated webpage. From that evidence, it appears that the Respondent’s website relates to entirely the same business as that of the Complainant, and also features the same device mark as the Complainant’s. Among other things, the website states that Al-Baik Fast Food Industrial Processing Co. is an Egyptian company, established in 2001 in Cairo, Egypt with Arab and Egyptian investors.

5. Parties’ Contentions

A. Complainant

The following is summarized from the Complaint.

The disputed domain name is confusingly similar to the Complainant’s registered mark, and that the addition of the term ‘broast’ does not lessen that confusion. The Complainant’s mark is well-known in the Middle East and, as such, the Respondent can not have been unaware of it. The term ‘broast’ is also a registered trademark (although the Complainant does not provide direct evidence of this).

The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not used it in connection with a bona fide offering of goods or services. The disputed domain name has been used to promote the same services offered by the Complainant, without any authorization from the Complainant. The website to which the disputed domain name reverts is used for a commercial purpose. The Respondent is using the disputed domain name to mislead consumers and tarnish the Complainant’s mark. The Respondent is also using the Complainant’s mark to promote its own services. The Respondent is not a distributor of the Complainant’s and has no trademark for “Albaik”.

The disputed domain name was registered and is being used in bad faith. The disputed domain name was registered after the Complainant registered its trademarks. (The Complainant does not provide direct evidence of the date of the registration of its marks). The Complainant’s marks are well-known and the Respondent must have been aware of them when it registered the disputed domain name. The Respondent has intentionally infringed the Complainant’s trademark to attract visitors to its own website for commercial gain.

The Respondent did not respond to a cease and desist letter sent by the Complainant. (The Complainant does not provide direct evidence of such a letter.) Neither has the Respondent stopped using the disputed domain name. This may be another indication of bad faith.

B. Respondent

The Respondent did not file a formal Response to the allegations in the Complaint.

The Respondent (‘Egyptian IT’) did, however, make various email communications with the Center between October 9 and 22, 2007, and also on November 18, 2007. Essentially, the Respondent claims not to be the Respondent in fact, and rather that the right party to be involved as the Respondent is ‘ALBAIK’ – which the Panel has taken to be a reference to the ‘Al-Baik Fast Food Industrial Processing Co.’ referred to on the website to which the disputed domain name reverts. The Respondent claims only to be the technical contact for that business with it otherwise has “nothing to do” with.

The Respondent made a further communication (received by the Center on December 13, 2007) in which it says that it is “amazed” that the Center still addresses it as the Respondent, despite its emails to the Center denying that it is the Respondent in fact, who it claims is “ALBAIK of Egypt”. The Respondent also claimed that the Complainant