WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Aegis Defence Services Limited v. Emeruwa Samuel Emeruwa Samuel, Samech Case No. D2009-1677 1. The Parties
The Complainant is Aegis Defence Services Limited of London, United Kingdom of Great Britain and Northern Ireland, internally represented.
The Respondent is Emeruwa Samuel Emeruwa Samuel, Samech of Abidjan, Côte d'Ivoire. 2. The Domain Name and Registrar
The disputed domain name is registered with Key-Systems GmbH. 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 8, 2009.
On December 9, 2009, the Center transmitted by email to Key-Systems GmbH a request for registrar verification in connection with the disputed domain name.
On December 10, 2009, Key-Systems GmbH transmitted by email to the Center its verification response, confirming that the Respondent was listed as the registrant and providing the contact details. Key-Systems GmbH also asked the Center to contact its reseller HaiSoft Ltd., through which the disputed domain name had been registered, to check the language of the registration agreement. On December 14, 2009, the Center transmitted by email to HaiSoft Ltd. a query on the language of the registration agreement. On December 16, 2009, HaiSoft Ltd. informed the Center that the language of the registration agreement for the disputed domain name was French.
On December 17, 2009, the Center issued a Language of Proceeding notification, both in English and French, inviting comments from the parties. On December 18, 2009, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not respond to the Center's Language of Proceeding notification.
On December 29, 2009, the Center notified the parties of its preliminary decision to 1) accept the Complaint as filed in English; 2) accept a Response in either French or English; and 3) appoint a panel familiar with both languages mentioned above, if available and also advised the parties that in accordance with paragraph 11 of the Rules, the Panel has the authority to determine the language of the proceeding.
The Center verified that the 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 December 29, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 18, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 19, 2010.
The Center appointed Philippe Gilliéron as the sole panelist in this matter on January 29, 2010. 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, Aegis Defence Services Limited (hereinafter ADSL), is a security and risk management company based in London but with overseas offices in Afghanistan, Bahrain, Iraq and the United States of America.
It is the holder of the verbal Community trademark AEGIS registered on July 27, 2007 for the classes 35, 41, 42 and 45 with a priority date as of July 25, 2006. This trademark was also registered under the same classes in Afghanistan on July 8, 2008 with a priority date as of March 12, 2008 and in the United States (also under the additional classes 37 and 38) on August 25, 2009 with a priority date as of January 24, 2007. An application was filed in Iraq on March 11, 2008 for the same designation under classes 35, 41 and 42.
The Complainant has also owned the following domain name since August 10, 2005.
On July 20, 2009, the Respondent registered the disputed domain name .
The disputed domain name is currently attached to a website that displays a corporate name, Aegis World Services, based in the Ivory Coast, that would offer similar services as the Complainant's in the field of security. The website at the disputed domain name identifies Aegis World Services' head office address as 39 Victoria street, London, SW1H OEU, UK, i.e., the address of the Complainant's head office, and displays the same “AEGIS” logo as the one on the Complainant's website. 5. Parties' Contentions A. Complainant
The Complainant argues that the disputed domain name is identical to its own principal domain name as well as is identical or confusingly similar to its registered AEGIS trademark.
Further, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant claims to have rights in both names “Aegis” and “Aegis World”, in which the Respondent does not have rights. The Complainant contends that it has no relationship with the Respondent and that it has never authorized the use of the disputed domain name or its AEGIS trademark. The Complainant also argues that it has found no evidence of the use by the Respondent of the domain name in connection with a bona fide offering of goods and services and that the Respondent's only purpose in the registration of that domain name was to deceive consumers or tarnish the trademark at issue for commercial gain.
In addition, the Complainant contends that the disputed domain name has been registered in bad faith, with the Respondent's intention to attract Internet users to its website for commercial gain, by creating a likelihood of confusion with the Complainant's mark, services and reputation. In support of this assertion, the Complainant points out that the Respondent's website falsely identifies the address of Aegis World Services' head office as 39 Victoria Street, London, SW1H 0EU, which is the one of the Complainant's office, in spite of the absence of any relationship whatsoever between the two companies. Furthermore, the Complainant asserts that the VAT registration number, the Data Protection Act registration number and the BSi Certificate Number identified on the website at the disputed domain name in fact belong to Valley Security Services Ltd, a company registered in England and Wales with its head office in Derwen Deg, Llansilin, Oswestry, Shropshire. Finally, as elements indicating the bad faith of the Respondent, the Complainant contends that the Respondent has copied its website logo and that when one calls the phone number indicated on the website at the disputed domain name, the representative answers with “Aegis Defence Services” and not “Aegis World Services”.
In the Complainant's opinion, this clearly shows the intention of the Respondent to use the Complainant's goodwill and reputation for its own commercial gain. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “[…] decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
In view of the Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to the Rules, paragraphs 5(e), 14(a) and 15(a) and will draw such inferences as it considers appropriate pursuant to the Rules, paragraph 14(b).
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the domain name registered by the Respondent 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 domain name; and
(iii) the domain name has been registered and is being used in bad faith. A. Language of the proceeding
Paragraph 11 of the Rules provides that the language of the proceeding shall be the language of the Registration Agreement.
In the present case, the Center has been informed by Haisoft Ltd, a reseller of Key-Systems GmbH, that the language of the registration agreement for the disputed domain name is French. However, after having been informed of this procedural rule, the Complainant filed an additional document requesting that English be the language of the proceeding. The Respondent did not reply to the Center's Language of Proceeding notification. In its email communication on December 29, 2009, the Center in both English and French informed the parties it would 1) accept the Complaint as filed in English, 2) accept a Response either in English or French, and 3) leave the decision of the language of the proceeding to the appointed Panel which has the authority to make that determination in accordance with paragraph 11 of the Rules.
In support of its request that English be the language of the proceeding, the Complainant first argues that “to undertake proceedings in French would require translation of all documents by an external Company at a substantial cost”. The Panel does not consider that argument per se as a sufficient reason to exercise the Panel's discretion under paragraph 11 of the Rules.
Paragraph 10(b) of the Rules requires the Panel to ensure that the parties to this proceeding “are treated with equality and that each Party is given a fair opportunity to present its case”. In the present case, the Panel is however convinced that the use of English did not prevent the Respondent to fairly present its case to the Panel. Firstly, the Center, in its email communication of December 29, 2009, gave the opportunity for the Respondent to comment on the Complainant's request and to submit a Response in either French or English. The Respondent made the decision not to use this opportunity and did not reply to any of the Center's notifications. Secondly, and as the Complainant rightfully points out, the language used for the entire content of the disputed domain name, as well as for the domain name itself, is English, which shows a clear understanding of that language by the Respondent.
As a result, and in line with paragraph 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions and cases cited therein, the Panel decides that this administrative proceeding be in English. B. Identical or Confusingly Similar
According to the Policy, paragraph 4(a)(i) the Complainant has to prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant proves to be the right holder of the trademark AEGIS, registered as a Community trademark since July 27, 2007 with a priority date as of July 25, 2006. It has been stated in several decisions by prior UDRP panels that incorporating a trademark in its entirety into a domain name can be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark for purposes of the Policy (see Bayerische Motoren Werke AG, Sauber Motorsport AG v. Petaluma Auto Works, WIPO Case No. D2005-0941 and Thaigem Global Marketing Limited v. Sanchai Aree,WIPO Case No. D2002-0358). Further, the addition of other generic words to the concerned trademark is not sufficient to prevent the domain name to be found identical or confusingly similar to such trademark (see EAuto, L.L.C. v. EAuto Parts,WIPO Case No. D2000-0096). In the present case, the Panel finds that the addition of the word “world” to the trademark AEGIS does not constitute a sufficiently distinctive element to prevent any confusion with the Complainant's registered trademark.
The disputed domain name being confusingly similar to the Complainant's registered trademark, the Panel finds that the Policy, paragraph 4(b)(i) has been satisfied. C. Rights or Legitimate Interests
According to the Policy, paragraph 4(b)(ii), the Complainant has to demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name.
As the panel stated in Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624, demonstrating that the respondent has no rights or legitimate interests in the domain name “would require complainant to prove a negative, a difficult, if not impossible, task.” In addition, in Do The Hustle, LLC, the panel established that “where a complainant has asserted that the respondent has no rights or legitimate interests in respect of the domain name, it is incumbent upon the respondent to come forward with concrete evidence rebutting this assertion”. Following that decision, UDRP panels developed a consensual view that it was deemed sufficient for the complainant to make a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once a prima facie case has been made, it is the respondent's burden to prove its rights or legitimate interests. If it fails to do so, the complainant is deemed to have satisfied paragraph 4(b)(ii) of the Policy. See e.g., paragraph 2.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions and cases.
In the present case, the Panel is of the opinion, based upon the evidence brought by the Complainant, that the Respondent has no relationship of any nature with the Complainant and was well aware of the Complainant's existence when it registered the disputed domain name. Indeed, the use of the Complainant's head office address and logo, as well as mentioning the Complainant's name when the Respondent's representative answered the phone clearly indicate that the Respondent was well aware of the Complainant. In addition, the Panel is not convinced that the company “Aegis World Services” that appears on the Respondent's website is validly registered as such, since the VAT registration number, the Data Protection Act registration number and the BSi Certificate number published on the website belong to another British company, Valley Security Services Ltd, with its head office in Oswestry, Shropshire.
Thus, the Complainant has made a prima facie case and, even though put on notice of the Complainant's allegations, the Respondent did not bring any evidence that would demonstrate any rights or legitimate interests in the disputed domain name as the Respondent did not file a Response. More specifically, the Respondent does not demonstrate that:
(i) before any notice to the Respondent of the dispute, the Respondent used or made demonstrable preparations to use the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Consequently, the Panel considers the Policy, paragraph 4(a)(ii) to be fulfilled. D. Registered and Used in Bad Faith
For the Complaint to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith (Policy, paragraph 4(a)(iii)).
To have registered the disputed domain name in bad faith, the Respondent first must have been aware of the existence of the Complainant. The Panel finds on the record of the present case that this is the case here as previously stated.
The Panel is convinced based on the evidence submitted by the Complainant that the Respondent primarily registered the disputed domain name for the purpose of diverting the Complainant's customers for its own commercial gain. Indeed, services apparently offered to customers in the Respondent's website at the disputed domain name are in the field of security, which is the Complainant's business. In addition, the website at the disputed domain name displays the logo of the Complainant and indicates in a deceitful fashion that its Head office is in London, at the exact Complainant's address, despite the absence of any type of commercial relationship between the parties.
The bad faith of the Respondent is furthermore evidenced by the doubtful commercial practice that it seems to have adopted in using another company's registration numbers and in deceiving the customers by answering the phone with the Complainant's name instead of its own.
These facts clearly show the Respondent's intention to use the Complainant's goodwill and reputation for its own commercial gain and is strong evidence of the Respondent's bad faith under the Policy, paragraph 4(a)(iii). 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.
Philippe Gilliéron
Sole Panelist
Dated: February 10, 2010
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