WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION M (India) Private Limited v. 24 Hours Hosting, Ovais Rafiq Case No. D2008-1673 1. The Parties
The Complainant is M (India) Private Limited, of India, represented by Khaitan & Co., of India.
The Respondent is 24 Hours Hosting, Ovais Rafiq, of the United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 3, 2008. On November 4, 2008, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On November 4, 2008, eNom transmitted by email 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. The Center sent an email communication to the Complainant on November 18, 2008 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 19, 2008. 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”).
On November 18, 2008, the Center received a communication from an individual writing from an email address provided in the Complaint for the technical contact for
the disputed domain name. The Complainant indicated that it wished to open settlement talks with the Respondent, and the proceedings were suspended prior to commencement on November 21, 2008. In response to a request to re-institute the proceedings from the Complainant, received on December 9, 2008, the proceedings were formally commenced.
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 December 11, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 31, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 7, 2009.
The Center appointed John Swinson as the sole panelist in this matter on January 27, 2009. 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 an Indian company that provides career and online recruitment solutions.
The Complainant is a subsidiary of Monster Worldwide Inc., which is incorporated in the United States of America.
The word “monster” has been used by Monster Worldwide Inc., in relation to career and recruitment services since 1967. Monster Worldwide Inc. owns numerous MONSTER trademarks around the world. For example they are the registered owners of a MONSTER trademark in Japan (trademark registration number 4452530) which was registered in February 2001, in Canada (trademark number TMA572,921) which was registered in December 2002, and the People's Republic of China (trademark number 1671601) which was registered in November 2001.
The Complainant is the registered owner of the MONSTER trademark in India (trademark number 1429752). The trademark was filed in March 2006 and registered in August 2008. 5. Parties' Contentions A. Complainant
The Complainant contends that:
The disputed domain name is identical or confusingly similar to the Complainant's MONSTER trademark.
The disputed domain name is identical to the Complainant's MONSTER trademark in which the Complainant has exclusive rights.
The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant has not licensed or otherwise permitted the Respondent to use its MONSTER trademark or to apply for any domain name incorporating this mark.
The disputed domain name was registered and is being used in bad faith.
The Respondent was aware of the Complainant's MONSTER trademark when it registered the disputed domain name in 2007. The website that was located at the disputed domain name was advertising career and recruitment services similar to the online career and recruitment services that are offered by the Complainant.
The Respondent is trying to take advantage of the Complainant's reputation and goodwill by making it appear that the disputed domain name is affiliated with, sponsored by, authorized by or operated by the Complainant. 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:
(i) the disputed domain name is identical or confusingly similar to a trademark 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. A. Identical or Confusingly Similar
To prove this element, the Complainant must have rights in a name, trademark or service mark, and the disputed domain name must be identical or confusingly similar to the Complainant's name, trademark or service mark.
The Complainant has registered trademark rights in India in the word “monster”, as set out above in paragraph 4. Therefore, the Panel is satisfied that the Complainant has trademark rights in the word “monster” for the purposes of the Policy.
The Panel accepts the Complainant's submission that the disputed domain name is identical or confusingly similar to the Complainant's MONSTER trademark. The Respondent has used the Complainant's MONSTER trademark in its entirety and has merely added the geographic term “Pakistan”. Where a respondent has used another person's trademark in conjunction with a geographic name, the domain name can be
considered identical or confusingly similar to the complainant's trademark (see Natura Cosméticos S/A. and Indústria e Comércio de Cosméticos Natura Ltda. v. N/A,WIPO Case No. D2008-1128; InfoS, Inc. v. Hari Prakash,WIPO Case No. D2000-0076; and Dell Computer Corporation v. MTO C.A. and Diabetes Education Long Life, WIPO Case No. D2002-0363).
The Panel therefore finds that, in the circumstances of this case, the disputed domain name is identical or confusingly similar to the Complainant's MONSTER trademark. Consequently, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
The Complainant, when it first filed the Complaint in November 2008, provided a snapshot of the website located at the disputed domain name. The website prominently featured the words “Monster Pakistan” in bold, large font. The website contained advertisements for job vacancies for technical writers, net developers and engineers amongst other vacancies. The website also contained links such as “Home Jobs”, “Industries Jobs” and “IT Jobs”.
Sometime after the Complaint was filed the disputed domain name took users to , an Indian poetry website.
The Respondent failed to respond to these allegations and so there is no explanation from the Respondent as to why it selected and used the disputed domain name. The Complainant has provided evidence that the Respondent is using the disputed domain name to create the assumption that the website at the disputed domain name is affiliated with, sponsored by, or authorized by the Complainant. The Panel is therefore satisfied that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent, by failing to provide a response has failed to demonstrate such rights or legitimate interests. Accordingly, the Panel finds that Paragraph 4(a)(ii) of the Policy is satisfied. C. Registered and Used in Bad Faith
The Complainant has provided evidence to demonstrate that itself, and its parent company, have used their MONSTER trademarks in connection with providing online recruitment and career services for many years. The disputed domain name was registered in 2007 and it was likely that the Respondent would have been aware of the Complainant's MONSTER trademarks at that time. The Respondent's website that was located at the disputed domain name prominently used the word “monster” and provided links to other sites advertising job vacancies, thus competing with the Complainant's business.
The Panel therefore considers that the Complainant has demonstrated bad faith as set out in paragraph 4(b)(iv) of the Policy.
The Panel finds that the Respondent has registered and used the disputed domain name in bad faith. Accordingly, the Panel finds that Paragraph 4(a)(iii) of the Policy is satisfied. 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.
John Swinson
Sole Panelist
Dated: February 10, 2009
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