WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION R India Ltd. v. RED MAIL Case No. D2008-1739 1. The Parties
The Complainant is R India Ltd., of Mumbai, India, represented by Anand & Anand, of Noida, India.
The Respondent is RED MAIL, of Phoenix, United States America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Tucows Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on November 11, 2008 and in hard copy on November 13, 2008.
The Center transmitted its request for registrar verification to the Registrar by email on November 12, 2008. The Registrar responded the same day, confirming that the Domain Name was registered with it and the Respondent was the current registrant, that the Uniform Domain Name Dispute Resolution Policy (the “Policy”) applied to the registration, that the Domain Name would expire on May 29, 2009, and that the registration agreement was in English. The Registrar also provided the contact details in respect of the registration on its Whois database and stated that it had not received a copy of the Complaint.
By email of November 20, 2008, the Center drew the Registrar's attention to the fact that the registrant of the Domain Name had been changed to C. The Registrar replied the following day, stating that it had removed the privacy setting.
The Center verified that the Complaint satisfied the formal requirements of 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 25, 2008. The notification was sent by courier and email to the addresses on the Registrar's Whois database in respect of the Domain Name, but (apart from the privacy registration email) these addresses were defective. In accordance with paragraph 5(a) of the Rules, the due date for Response was December 15, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 16, 2008.
The Center appointed Jonathan Turner as the sole panelist in this matter on December 29, 2008. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules.
Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the contact addresses recorded on the Registrar's Whois database in respect of the Domain Name, and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules. 4. Factual Background
The Complainant operates a leading internet portal at “www.r”, providing news, information, communication, entertainment and shopping services. As at March 31, 2008, the Complainant had 65.7 million registered users and its revenues for year ended March 31, 2008, amounted to over USD 32 million.
The Complainant's services include a free email service called “Rediffmail” and subscription email services called “Rediffmail Plus” and “Rediffmail Pro”.
The Complainant has registered various trademarks in India, including REDIFF.COM, REDIFF and REDIFFMAIL.
At the date of the Complaint, the Domain Name resolved to an empty web page on which pop-up advertisements appeared. At the time of preparation of this decision, the Domain Name did not resolve to any website. 5. Parties' Contentions A. Complainant
The Complainant contends that it has registered and common law rights in the marks REDIFF and REDIFFMAIL. It further contends that the Domain Name is confusingly similar to those marks.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name and that it was registered and is being used in bad faith, in particular to attract Internet users to its web page or a future web page through confusion with the Complainant's marks.
The Complainant requests a decision that the Domain Name be transferred to it. B. Respondent
As mentioned above, the Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. Each of these requirements will be considered in turn below.
In accordance with paragraph 14(b) of the Rules the Panel shall draw such inferences from the Respondent's default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed. A. Identical or Confusingly Similar
It is clear to the Panel from the evidence that the Complainant has registered and unregistered rights in the marks REDIFF and REDIFFMAIL.
The Panel further finds that the Domain Name is confusingly similar to these marks. The Domain Name differs from the mark REDIFFMAIL only in the miss-spelling of “mail” and the addition of the generic top level domain suffix. It differs from the mark REDIFF only in the addition of a miss-spelling of the generic term “mail” and the generic suffix. In the assessment of the Panel, these differences are not sufficient to avoid confusion.
The first requirement of the Policy is satisfied. B. Rights or Legitimate Interests
The Panel finds on the evidence that the Respondent does not have rights or legitimate interests in respect of the Domain Name.
The Respondent has not made apparent use or preparations for use of the Domain Name or any corresponding name in connection with a bona fide offering of goods or services. On the available evidence, it is not commonly known by the Domain Name per se, nor it is making legitimate non-commercial or fair use of the Domain Name.
There does not appear to be any other basis on which the Respondent could claim rights or legitimate interests in respect of the Domain Name. The second requirement of the Policy is satisfied. C. Registered and Used in Bad Faith
Having regard to the nature of the Domain Name – as a miss-spelling of the Complainant's distinctive mark, REDIFFMAIL, together with the generic top level domain suffix – the Panel considers that it was most likely registered by the Respondent with the intention of using it to attract Internet users to the Respondent's website for commercial gain by creating a likelihood of confusion with the Complainant's mark.
There is also unchallenged evidence that the Respondent was using the Domain Name for this purpose at the date of the Complaint. This constitutes evidence of registration and use in bad faith in accordance with paragraph 4(b)(iv) of the Policy. This presumption cannot be avoided by a change of use between the Complaint and the Panel's Decision.
There is no evidence rebutting this presumption. The Panel concludes that the Domain Name was registered and is being used in bad faith. The third requirement 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
Jonathan Turner
Sole Panelist
Dated: January 12, 2009
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