The Complainant is Organising Committee Commonwealth Games 2010 Delhi of New Delhi, India, represented by Dua Associates, India.
The Respondent is PrivacyP / netlinkblue digital energy (p) limited of Moergestel, the Netherlands and Haryana, India, respectively. 2. The Domain Name and Registrar
The disputed domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 20, 2010. On July 20, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name. On July 22, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainR transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 22, 2010 providing the registrant and contact information disclosed by the Registrar, notifying the Complainant that the Complaint was administratively deficient, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on July 28, 2010. 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” 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 30, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 19, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 20, 2010.
The Center appointed Harini Narayanswamy as the sole panelist in this matter on August 31, 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 made a bid to Commonwealth Games Federation on May 1, 2003 and was awarded the hosting of the 2010 Commonwealth Games at New Delhi on behalf of the Government of India. The award was announced on November 13, 2003 at Jamaica, where the Complainant won by a margin of 46 votes to 22, against the city of Hamilton.
The Complainant owns the rights to the marks connected with the Commonwealth Games 2010. It has filed applications seeking registration of the marks and has furnished copies of the relevant documents pertaining to these applications.
The Respondent registered the disputed domain name on April 2, 2006. 5. Parties’ Contentions A. Complainant
The Complainant contends it has rights in the name, trademarks and service marks connected with the Delhi Commonwealth games 2010 including but not limited to WWW.CWGDELHI2010.ORG, the commonwealth games logo, SHERA (device of lion), QUEEN’S BATON RELAY XIX COMMONWEALTH GAMES and 2010 COMMONWEALTH GAMES DELHI along with the tricolor insignia, slogans, devices, acronym and other variants thereof. The Complainant has been promoting the Commonwealth Games through the media, and alleges the use of the marks in relation to various activities and goods including but not limited to goods under classes 3, 9, 12, 14, 16, 18, 20, 21, 22, 24, 25, 28, 29, 30, 32, 34, 35, 36, 38, 39, 41, 42, 43, 44 and 45. The Complainant states it has acquired common law rights due to its continuous use of the marks and has also filed intent to use applications for trademark registrations under classes 1, 2, 4, 5, 6, 8, 11, 17 and 26. The Complainant states it has registered the domain name and maintains an official website that prominently displays the name, trade and service marks connected with the Delhi Commonwealth Games 2010.
The Complainant alleges it came to know of the disputed domain name in April 2009 and had sent a letter to the Respondent on April 23, 2009, which the Respondent has refused. The Complainant then sent an email to the Registrar requesting it to block the disputed domain name, but was informed by the Registrar to approach an appropriate forum for the remedy sought by the Complainant.
The Complainant therefore filed the present Complaint requesting the transfer of the disputed domain name on the following grounds; the disputed domain name is confusingly similar to the marks in which it has prior legal rights, the Respondent has no rights or legitimate interests to use the disputed domain name and is attempting to mislead the public regarding the nature, affiliation, origin of information presented on the Respondent’s website by using the Complainant’s mark, and the disputed domain name is registered and used in bad faith as the Respondent primarily seeks to disrupt the Complainant’s business by intentionally targeting and misleading customer groups. The Respondent’s registration shows awareness of the declaration of November 2003 where Delhi was chosen to host the Commonwealth Games 2010 and the Complainant’s rights and business interests in the same. Despite knowledge of the Complainant’s prior rights the Respondent has registered and continues to use the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To obtain the remedy of transfer of the disputed domain name, the Policy stipulates that the Complainant has to establish three elements under paragraph 4(a).
(i) The disputed domain name is identical or confusingly similar to a 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 was registered and is being used in bad faith by the Respondent. A. Identical or Confusingly Similar
The first element requires the Complainant to prove that the domain name registered by the Respondent is identical or confusingly similar to a mark in which it has rights.
The Complainant is the official host for the Delhi Commonwealth Games 2010 and has filed documents that show extensive media coverage for the event. The Panel finds the Complainant has shown widespread use of its marks for publicizing the event and in particular the prominent use of its mark 2010 COMMONWEALTH GAMES DELHI. The evidence filed by the Complainant established that the term “Delhi Commonwealth Games” is identified with the Complainant and that it has business interests in the event. Based on all this evidence, the Panel is convinced that the Complainant has demonstrated its common law rights in the mark 2010 COMMONWEALTH GAMES DELHI. The Complainant has also furnished copies of numerous trademark applications made to the Indian Trademark Office, under several classes for hundreds of different goods and services.
In the Panel’s view the disputed domain name is confusingly similar to the Complainant’s mark for the reason that the use of the name of the city of “Delhi” along with the term “Commonwealth Games” refers to the event being hosted by the Complainant. Like the Olympic games, the Commonwealth Games are traditionally known by the name of the host city followed by the year of the games, see Melbourne 2006 Commonwealth Games Corporation v. B & M Group Of Companies Pty Ltd, WIPO Case No. D2005-0366. Also see London Organising Committee of the Olympic Games and Paralympic Games Limited v. H&S Media Ltd,WIPO Case No. D2010-0415. (). Given the age-old tradition of identifying games with the name of the hosting city, the use of name of the city of “Delhi” in the disputed domain name followed by the words “Commonwealth Games”, in the Panel’s view, makes the disputed domain name confusingly similar to the Complainant’s mark.
The domain name in the present dispute is an obvious transposition of the terms used in the Complainant’s mark 2010 COMMONWEALTH GAMES DELHI. The disputed domain name undeniably refers to the event being hosted by the Complainant, and the transposition of words does not alter this underlying character. Neither does the substitution of hyphens for the space between the words in the disputed domain name make any material alteration to its basic characteristic that it is similar to the Complainant’s mark.
The Panel accordingly finds that the disputed domain name is confusingly similar to the Complainant’s mark 2010 COMMONWEALTH GAMES DELHI. B. Rights or Legitimate Interests
The second element under paragraph 4(a) of the Policy requires the Complainant to make a prima facie case showing that the Respondent lacks rights and legitimate interests in the disputed domain name.
The Complainant has argued that the Respondent has no rights or legitimate interests in the disputed domain name. In the Panel’s view, given the nature of the Complainant’s role as the host of the Commonwealth Games 2010, which it obtained through an international bidding process, it is inconceivable that the Respondent can demonstrate any rights or legitimate interest in the disputed domain name. According to the Complainant, it is likely that the Respondent has registered the disputed domain name for deriving web traffic due to the publicity associated with the event.
The Panel on visiting the Respondent’s website, found that it provides some information about the Commonwealth Games and about the city of Delhi. Such use of the disputed domain name, in the circumstances of the present case, however, cannot be considered legitimate noncommercial use or fair use as the Respondent’s website contains commercial advertisements and sponsored links to other commercial entities. The Respondent is apparently deriving commercial gain from misdirected Internet traffic by the unauthorized use of the Complainant’s marks. Furthermore, the Respondent is not authorized to provide information regarding the games on behalf of the Complainant or to exploit the Complainant’s marks in any manner. Such unauthorized use of the Complainant’s marks for obtaining commercial gains is not legitimate use under the Policy.
The Panel also notes that the Respondent has declined to accept the notice sent by the Complainant on April 23, 2009. The Respondent has not participated in these proceedings by filing a response to the Complaint or provided any material that can demonstrate any legitimate interests in the disputed domain name or in a name corresponding to the disputed domain name. In this Panel’s opinion, it can be reasonably inferred that the Respondent’s refraining from participating in these proceedings was due to the Respondent’s lack of rights or legitimate interests in the disputed domain name.
The Panel finds, for the reasons discussed, the Complainant has made a prima facie case under the second element of paragraph 4(a) of the Policy which the Respondent has not rebutted. C. Registered and Used in Bad Faith
The third element under the paragraph 4(a) of the Policy requires the Complainant to prove that the disputed domain name has been registered and used in bad faith.
The Complainant has argued the Respondent’s registration of the disputed domain name shows awareness of the declaration of November 2003 where Delhi was chosen as the host city for the Commonwealth Games 2010. In view of the evidence adduced by the Complainant, which shows wide media coverage of the Complainant being chosen the official host for the 2010 Commonwealth Games Delhi, the Panel finds merit in the Complainant’s argument that the Respondent ought to have been aware of this information at the time of registration of the disputed domain name.
The timing of the disputed domain name registration is also relevant here. The record indicates that the disputed domain name was registered on April 2, 2006, much after it had become public knowledge that Delhi was chosen to be the venue for the 2010 Commonwealth Games. In the Panel’s view, the Respondent’s registration of the disputed domain name therefore ought to have been based on such public knowledge obtained from media reports about the 2010 Commonwealth Games. Clearly, the Complainant’s use of 2010 COMMONWEALTH GAMES DELHI undoubtedly predates the registration of the disputed domain name and the Panel finds the Respondent’s registration, on balance, to be based on the knowledge of the Complainant’s rights. Such registration, based on awareness of an event, is recognized as bad faith registration. See Organization Committee for the World Championship of Alpine Ski in 2009 v. Kenney E. Granum,WIPO Case No. D2006-0264 ()
The Complainant has argued that the Respondent has registered the disputed domain name in bad faith to mislead the public and to disrupt the Complainant’s business. The Panel finds the Respondent has intentionally chosen a name that is clearly associated with the Complainant and, as discussed in the previous section, has no rights or legitimate interests in the name. Given these circumstances, it can be inferred that the Respondent’s registration and use of the disputed domain name is with the intention of attracting Internet users for commercial gain, due to the likelihood of confusion with the Complainant’s trademarks. Such registration and use has been recognized as bad faith registration and use under paragraph 4(b)(iv) of the Policy. See AXA, S.A v. Privacy P / Koddos, Ronald Linco,WIPO Case No. D2010-0270.
The Panel finds that the Respondent has placed advertisements and links on the website under the disputed domain name which, in the circumstances of this case, constitutes evidence of bad faith use, as it diverts consumers looking for the Complainant’s website to other sites, under paragraph 4(b)(iv) of the Policy. See Airbus Deutschland Gmbh v. DOMAIN-NAME-4-SALE,WIPO Case No. D2005-0092. (Bad faith was found where respondent had registered the domain name for redirecting consumers looking for the complainant’s website and offered links and advertisements on the website to other third party sites).
The Panel finds the Complainant has successfully established that the disputed domain name was registered and is being used in bad faith. 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 disputed domain name be transferred to the Complainant.
Harini Narayanswamy
Sole Panelist
Dated: September 14, 2010
Full & Egal Universal Law Academy