WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
R India Ltd. V. REDIFFMOBILE.COM/ c/o “Whois Identity Shield”
Case No. D2008-0806
1. The Parties
The Complainant is R India Ltd., Mumbai, India represented by Anand & Anand India.
The Respondent is REDIFF MOBILE.COM/ Whois Identity Shield Vancouver, Canada.
2. The Domain Name and Registrar
The disputed domain name is registered with Nameview Inc.
3. Procedural History
The Complaint was filed with WIPO Arbitration and Mediation Center (the “Center”) on May 22, 2008. On May 22, 2008 the Center transmitted by e-mail to Nameview Inc., a request for Registrar verification in connection with the domain name at issue. On May 27, 2008, Nameview Inc. transmitted to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint, namely, an apparent change in registrant name and contact details to reflect those of the Complainant. The Center sent an email communication to the Complainant on June 2, 2008 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On June 4, 2008, the Complainant confirmed that the disputed domain name was not registered by it, despite the registrar’s apparent disclosure, and further suggested that the Respondent had apparently changed the named registrant after receiving the notice of the Complaint. On June 5, 2008, the Complainant filed an amended Complaint. 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 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 June 19, 2008. In accordance with the Rules, paragraph 5(a), the due date for the Response was July 9, 2008. The Respondent did not submit any response, accordingly, the Center notified the Respondent’s default on July 10, 2008.
The Center appointed Clive Duncan Thorne as the sole panelist in this matter on July 16, 2008. 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 one of the premier worldwide on-line providers of news, information, communication, entertainment and shopping services. Its genesis was in 1996 and over the years it has become a household name, synonymous with excellence in almost every field of e-Service and e-Commerce. The Complainant also provides a WAP service where users can use the Internet via their mobile phones which is called REDIFF MOBILE. The copyright in the said name and concept rests solely with the Complainant. Screen shots from the website are annexed as Annexure D to the Complaint.
The Complainant has a current market capitalization of USD 250 million. This is significantly ahead of other well-known and famous Indian e-Service/e-Commerce websites. In the financial year 2006-2007 R India Ltd. reported a net income of USD 2 million for the fourth quarter ended March 31, 2007.
The Complainant is an on-line Internet portal and is one of the premier worldwide on-line providers of multi faceted services such as news, information, communication, entertainment and shopping which are accessed by users, shareholders, customers and other Internet, users worldwide. The on-line services are all accessible via the Complainant’s main website “www.r”, which contains information relating to the Complainant. The home page from the website as well as other relevant pages of some of the sub-domains are annexed as Annexure H to the Complaint. The domain name has been registered on behalf of the Complainant. A copy of the WhoIs result is annexed as Annexure I to the Complaint.
The Complainant is the registered proprietor of the trademark REDIFF.COM and other REDIFF prefixed marks such as REDIFF MOBILE and REDIFF BOL worldwide including inter alia India and United States of America. A schedule of trademark registrations owned by the Complainant in India is Annexed as Annexure J to the Complainant.
The Complainant has in the past successfully restrained other parties from using the trademark REDIFF and other deceptively similar marks in relation to different and similar services by filing suits for trademark infringement and obtaining injunctive relief. By way of example is an Order of the High Court of India annexed as Annexure K to the Complaint.
There are no submissions from the Respondent. The Panel, in the absence of evidence to the contrary, therefore accepts the above non-contested facts.
5. Parties’ Contentions
A. Complainant
The Complainant contends:
A. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
i) The Complainant submits that the domain name in dispute includes the word “Rediff” which is identical in part and confusingly similar as a whole to the Complainant’s trademark REDIFF in which it has both registered and common law rights.
ii) The Complainant submits that the, domain name in dispute is an attempt by the Respondent to associate itself with the Complainant’s WAP mobile Internet service under the mark REDIFF MOBILE by incorporating the name of the service in full.
B. The Respondent has no rights or legitimate interests in respect of the domain name.
i) The Complainant submits that the disputed domain name comprises the world known trade marks REDIFF and REDIFF MOBILE and that the sole purpose of registering the domain name was to misappropriate the reputation associated with the trademark REDIFF.
ii) The Respondent is not commonly known by the domain name , nor by the marks REDIFF or REDIFF MOBILE.
iii) The Complainant has not authorized or licensed the Respondent to register or use the domain name in dispute.
iv) The Respondent’s choice of the trademark REDIFF as part of its domain name is totally unnecessary. The sole purpose of registration is to cause confusion as to the source, sponsorship, affiliation or endorsement of the activity being carried on through the website.
v) The Respondent is not making a legitimate non-commercial use of the domain name. The website to which the domain name revolves has not been constructed and is simply an empty page.
vi) The Respondent’s website is not a bona fide website since the Respondent is trading on the fame and recognition of the Complainant’s trademark rights.
C. The domain name was registered and is being used in bad faith. The Complainant submits:
i) The Respondent was aware of the commercial value and significance of the domain name in dispute. Its use of the mark is nothing but an opportunistic bad faith registration.
ii) The domain name incorporates the Complainant’s well-known and famous marks for the purpose of misappropriating the Complainants trademarks.
iii) The Respondent is merely representing itself as the Complainant.
iv) The Respondent has registered the domain name in dispute in order to disrupt the business of the Complainant.
v) There is a great likelihood that actual or potential unwary visitors to the Respondent’s web page or any future web page that is resolved to the disputed domain name will be induced to believe that there is some connection or association with the Complainant.
B. Respondent
The Respondent did not reply to the Complaint’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Based upon the evidence of trade mark rights adduced by the Complainant, the Panel is satisfied that the Complainant has trade mark rights in the marks REDIFF and REDIFF MOBILE. The domain name is identical to the latter trade mark, except for the gTLD suffix “.com” and the omission of the space.
The Panel considers that the domain name in dispute is therefore confusingly similar to trade marks in which the Complainant has rights.
B. Rights or Legitimate Interests
The Respondent has no rights or legitimate interests in respect of the domain name.
There is no evidence of any legitimate use of the domain name in dispute by the Respondent. The Complainant points out that the website to which the domain name resolves has not yet been constructed and is simply an empty page through which no business is run or any services provided. It points out that on accessing the website, pop-up advertisements appear.
The Panel accepts the Complainant’s submission that the Respondent does not engage in any activity which demonstrates that it has any rights or legitimate interests in respect of the domain name such as those enumerated in the Policy paragraph 4(c).
In the absence of any evidence to the contrary, the Panel considers that it is entitled to accept the Complainant’s submissions that the Respondent had no rights or legitimate interests in respect of the domain name and accordingly finds for the Complainant with regard to this element. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions section 2.1.
C. Registered and Used in Bad Faith
The domain name was registered and is being used in bad faith.
The Complainant invites the Panel to accept that the Respondent must have been aware of the commercial value and significance of the Complainant’s marks and that the registration of the disputed domain name was “an opportunistic bad faith registration on the part of the Respondent”.
In the Panel’s view it is a reasonable assumption to make, in the absence of a Response, that the domain name was registered in an attempt by the Respondent to obtain a commercial advantage with knowledge of the Complainant’s trade mark rights.
The Panel also takes the view that there is considerable force in the Complainant’s submission that there is a “great likelihood” that actual or potential unwary visitors to the Respondent’s web page that is resolved to the domain name dispute will believe that there is a connection, nexus, affiliation or association between the Respondent and the Complainant and that this is likely to have the effect of disrupting the business of the Complainant.
In these circumstances, the Panel finds that the domain name in dispute was registered and is being used in bad faith by the Respondent.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Clive Duncan Thorne
Sole Panelist
Dated: July 30, 2008
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