The Complainant is Konga Online Shopping Limited of Yaba, Lagos State, Nigeria, represented by Babajimi Ayorinde, Nigeria.
The Respondent is Rocket Internet GmbH, Arnt Jeschke of Berlin, Germany, represented by Rösler, Rasch & Partner Patent und Rechtsanwälte, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with INTERNETX GMBH (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 30, 2014. On May 30, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 3, 2014, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on June 27, 2014.
The Center verified that the Complaint together with the amended 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 2, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 22, 2014. The Response was filed with the Center on July 22, 2014.
On July 30, 2014, the Center received a communication from Ms. J. Thorell asking that she and a Mr. C. Bischoff be copied on emails moving forward in this case. The Center requested to identify her role in the proceeding on July 31, 2014. In a communication to the Center of August 12, 2014, Ms. J. Thorell stated that she and Mr. C. Bischoff “represent Kinnevik on the Konga Board of Directors”.
On June 3, 2014, the Registrar indicated to the Center the date of expiry of the disputed domain name as June 19, 2014. On June 3, 2014, the Center asked the Registrar to confirm in accordance with the ICANN Expired Domain Deletion Policy that the disputed domain name would be placed in Registrar lock status and so remain until after the lapse of the expiry date until the UDRP proceedings are concluded and to advise whether any action was required by the Parties to keep the domain name under Registrar lock. On June 3, 2014, the Registrar confirmed that the disputed domain name would be renewed by the Registrar and would also remain on Registrar lock. On June 3, 2014 the Center wrote to the Parties and Registrar urging the Parties to contact the Registrar to arrange payment of any renewal/registration fees that might be due. On June 5, 2014, the Center requested the Registrar to confirm that the disputed domain name was in the process of being placed on Registrar lock and the Registrar confirmed that the disputed domain name had been so placed. On June 20, 2014, the Respondent replied to the Center’s communication of June 3, 2014 indicating that, per the WhoIs record, the renewal appeared to have been processed.
The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on August 21, 2014. 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 a limited liability company registered under the laws of Nigeria on February 2, 2012. The Complainant carries on an online retailing business in Nigeria via the website “”. The Complainant has applied for registered trademarks in the Nigerian Trademarks Registry, namely first, an apparently figurative mark for KONGA LOGO in international classes 9, 16, and 35, applied for on March 28, 2012 and acknowledged by the said Registry on April 13, 2012; and secondly an apparent word mark for the KONGA in international classes 9, 16, 41 and 42 applied for on December 24, 2013 and acknowledged by the said Registry on January 10, 2014. There is no evidence before the Panel that these applications have proceeded to grant.
The Respondent is a company incorporated in Germany. It is an international investor in electronic commerce businesses and indirectly controls Ecart Internet Services Nigeria Limited, an online retail company in competition with the Complainant in Nigeria and which carries on its Nigerian business under the trade name “Jumia” and uses the domain name .
The disputed domain name was created on June 19, 2012.
It appears from email correspondence produced by the Complainant that Mr. O. Samwer of the Respondent met Mr. S. Shagaya of the Complainant at some point between June 8 and 14, 2012. In an email dated June 15, 2012, from Mr. Shagaya to Mr. Samwer, Mr. Shagaya thanks Mr. Samwer for his time that week and explains that he had to take time to consider Mr. Samwer’s offer but that he has opted to pursue opportunities “outside the umbrella proposed”. On June 17, 2012, Mr. Samwer replied to Mr. Shagaya’s email suggesting that Mr. Shagaya should “think a little bit longer about it and give it some more time” and stating that “[…] the chances for you to win in the long-term are much higher if you work with us and we become partners.”
The Complainant also produces a later exchange of email which ranges in date from October 21, 2013 to November 6, 2013 and which the Complainant says is a conversation in which Konga domain names are tied to Mr. Shagaya’s willingness “to not hire people from the competitor’s operations and a potential merger again”. This email is best described as “mid conversation” rather than illustrating a complete exchange of communications between named parties from beginning to end. All of the email noted below has been extracted from what appears to be a single email trail culminating in the email of November 6, 2013 at 09:06. The complete trail is as follows:
On October 21, 2013, Mr. Samwer writes; “sim, [sic] this is not what we agreed.”
On October 22, 2013, Mr. Shagaya writes; “my understanding is that these were conversations that begun [sic] before we met. / I have asserted it to stop forthwith and it has. this will not come up again.”
On November 6, 2013 at 08:01, Mr. Samwer writes; “You are not sticking to deals we agreed, Sim. / Keeping agreed deals is the first step to at all have conversations about doing more. If agreed deals are not kept, then there is no basis to do anything further. Cannot be trusted, so pls decide if you want to keep agreed deals (domains were not part of this deal as you can see below).”
On November 6, 2013 at 09:05, Mr. H. Persson writes; “I Agree. / And it reminds me of the konga domains that you gave [sic] agreed to hand over. That was the first agreement so maybe you can start there.”
On November 6, 2013 at 09:06, Mr. Samwer writes to Mr. Persson, copied to Mr. Shagaya and others, on a subject line of “Re; Poaching”: “I did not agree to hand over konga domains. I said there are conditions. / So Sim has to decide if honours [sic] his word. If not, no reason to have any further talk about domains, mergers, etc.” 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical to trademarks in which it has rights; that the Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
The Complainant asserts that at some time before June 15, 2012, Oliver Samwer, co-founder and principal of the Respondent, proposed to S. Shagaya, CEO and co-founder of Konga, a partnership deal between “Jumia” and the Complainant, which Mr. Shagaya declined. The Complainant produces relative email correspondence between Mr. Samwer and Mr. Shagaya. The Complainant states that the Respondent subsequently began the process of registering the disputed domain name in various jurisdictions with a view to using the same as a bargaining tool to obtain the Complainant’s agreement to a partnership. The Complainant does not specify the jurisdictions concerned.
The Complainant states that the Respondent does not and has never traded or carried on business under the name “Konga” and notes that the Respondent has also registered domain names with the word “Jumia” in the same jurisdictions. The Complainant submits that the only logical explanation for this is that the Respondent intends to extend its “Jumia” franchise to these jurisdictions and wishes to ensure that the Complainant cannot compete with “Jumia” in such jurisdictions.
The Complainant asserts that the Respondent has no legitimate interest in the name “Konga” and submits that the Respondent’s actions were carried out in bad faith to shut the Complainant out of various jurisdictions where the Respondent plans to establish “Jumia”. The Complainant notes that it wishes to establish its own franchise in such jurisdictions in the future.
The Complainant submits that as a result of prior use it has a common law right to exclusive use of the name “Konga” in respect of e-commerce businesses. The Complainant notes in this connection that it carries on business through the domain name which was registered as far back as April 18, 2002. The Complainant asserts that the use of the word “Konga” by the Respondent in the disputed domain name is so similar to the Complainant’s name and trademark applications that it is likely to cause confusion by leading people to believe that the disputed domain name belongs to the Complainant. The Complainant contends that the disputed domain name incorporates the Complainant’s trademark in its entirety.
The Complainant states that the Respondent is not currently using the disputed domain name in connection with any ongoing business. The Complainant submits that the email correspondence from Mr. Samwer set out in the factual background above indicates that one of the conditions for releasing the disputed domain name is the merger or partnership betwee
