Complainant is Al-Durra Food Products Company of the Syrian Arab Republic represented by Domains Guru, Inc. of the United States of America.
Respondent is Aldurra Group of the Republic of Lebanon. 2. The Domain Name and Registrar
The disputed domain name is registered with Network Solutions, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 23, 2010. On July 26, 2010, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the disputed domain name. On July 26, 2010, Network Solutions, LLC transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on July 29, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 18, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 20, 2010. The Center received a delivery failure report from one of Respondent’s email addresses. To avoid any doubt as to the proper notification of the Complaint to Respondent (and although it appears that the transmission has been successful for Respondent’s other email addresses), the Center resent the Notification of Complaint email, the Complaint and the Annexes to the Complaint on August 24, 2010, and provided Respondent with a further opportunity to indicate its intention to participate in this proceeding (if any) until August 27, 2010. No reply to this invitation was forthcoming from Respondent.
The Center appointed Nasser A. Khasawneh as sole panelist in this matter on August 30, 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
Complainant owns trademarks in several countries that include the term “durra” in a variety of food and drink related classes, including logo registrations that incorporate the mark DURRA and the related term “Al-Durra.” See for example German trademark registration number 306 24 615 registered June 23, 2006, Romanian trademark registration number 80251 dated October 9, 2006, and Australian trademark registration number 987908 commencing February 9, 2004.
The disputed domain name was registered on January 21, 2002 and presently displays an online retail food shopping site that features products of Complainant.1 5. Parties’ Contentions A. Complainant
Complainant avers that its Al-Durra Food Products Company, headquartered in Damascus, Syria, specializes in the preparation and marketing of foodstuffs in the Middle Eastern region and worldwide. Complainant avers that the company has been in business since 1979.
Complainant essentially contends it once owned the registration of the disputed domain name although the Complaint does not provide proof to support that claim.2 Complainant avers that Respondent “hijacked” the disputed domain name registration from the control of Complainant’s creative services agency (which maintained the website to which the disputed domain name routed), by hacking into the creative services company’s email account and falsifying a request for transfer of the registration for the disputed domain name. According to the Complaint, this resulted in transfer of the disputed domain name to two different registrars and the current registration under Respondent’s name.
Although Complainant uses the template model Complaint provided by the Center, the Complaint largely disregards the legal framework of the Policy. The Complaint, however, provides the factual allegations set forth below.
With respect to trademark registrations, Complainant provides a listing of its trademark registrations in terms that include “Durra” or “Al-Durra” along with supporting documents.
With respect to rights or legitimate interests, the Complaint states:
“Respondent never initially registered nor legally owned the ALDURRA.COM domain name at any point of time. . . . When questioned by a representative at the domain's current registrar, Network Solutions, [R]espondent attempted to defend himself by allegedly claiming that Creative Link Studio's executive manager . . . sold the domain name to [R]espondent for $12,000 and that he holds a sales receipt from Creative Link Studio's executive manager supporting his claim (Annex 11). Complainant has had a personal and mutual positive relationship with [the executive manager] – which negates [R]espondent's alleged claims in regards to acquiring ownership rights to the domain by purchasing it. Complainant approves [the executive manager’s] plead that he did not sell the domain to [R]respondent and refutation of [R]espondent's allegations.”
Under the template heading respecting registration and use in bad faith, the Complaint states:
“At the time [R]espondent hijacked the ALDURRA.COM domain name, [R]espondent changed the nameserver records for the domain, replicated the website and hosted an identical copy of the site with a few alterations to some of the pages. Respondent changed the prices on the products page, as well as the e-mail address under the contact page. Unfortunately, no evidence was recorded to prove this bad faith act under this proceeding since corrective action was taken prior to having the complainant consult with the representative party in this proceeding. The data [R]espondent used under the domain's registrant information (Annex 1) is similar to the information that of the complainant, except that it is false. First, complainant owns and uses the e-mail address ‘aldurracompany@’. Respondent registered and used the e-mail address ‘aldurragroup@’ for the domain registration information. Second, [R]espondent used the company name ‘al durra group food industries’ as the domain registrant and ‘Beirut, Lebanon’ as the city and country. Upon a Google search, that company name does not exist neither in Beirut, Lebanon nor anywhere in the world. By choosing a false company name and confusingly similar e-mail address to use for the hijacked domain registration details, [R]espondent is indeed falsifying information to cover up the hijacked domain. The domain name was transfer locked and legal locked by the domain's current registrar on March 25, 2010. Had [R]espondent bought the domain as he allegedly claims for $12,000, then he would have challenged the domain's current registrar's representative after his alleged domain had a legal lock applied on to it. Having neglecting the domain for four (4) months from neither challenging nor initiating a legal proceeding to defend his rights to the domain name proves that his claim is false.”
On the basis of the above allegations, Complainant seeks transfer of the disputed domain name. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
The Rules require the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) 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.
Complainant must establish these elements even if Respondent does not submit a Response. See, e.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. A. Identical or Confusingly Similar
The Complaint does not address whether Complainant believes that the disputed domain name is identical to a mark in which Complainant has interests, or instead, confusingly similar. The Complaint simply reproduces the Center’s template model Complaint, without electing or indicating the relevant allegation. The Complaint does provide information about Complainant’s registered trademarks and allegations respecting registration and transfer of the disputed domain name.
As explained below, the Panel finds that the disputed domain name is confusingly similar to the marks of Complainant.
Complainant has provided proof that it has registered rights in the trademark DURRA and in a logo displaying the words “Al-Durra.”
The test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the mark alone. Wal-Mart Stores, Inc. v. Traffic Yoon,WIPO Case No. D2006-0812. The top level domain “.com” in the disputed domain name is to be disregarded. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429.
Accordingly, the Panel finds the disputed domain name to be confusingly similar to the marks of Complainant.
The Panel concludes that the disputed domain name is confusingly similar to the registered mark s of Complainant and that the requirements of paragraph 4(a)(i) of the Policy are fulfilled. B. Rights or Legitimate Interests
The Panel is unable, however, to rule that Respondent lacks rights or legitimate interests based on the limited and contradictory evidence presented in the Complaint.
The Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in the use of a domain name. The list includes: (1) the use of the “domain name in connection with a bona fide offering of goods and services”; (2) an entity being commonly known by the domain name; or (3) the making of “a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers . . . .” Policy paragraphs 4(c)(i)–(iii).
Complainant must prove that the Respondent lacks rights or legitimate interests in the disputed domain name (Policy paragraph 4(a)), and Complainant has a responsibility to present a prima facie case to shift the burden of rebuttal to the Respondent. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no reply. Id., (citing De Agostini S.p.A. v. Marco Cialone,WIPO Case No. DTV2002 -0005).
In this case, the Complaint’s allegations of wrongdoing by Respondent are significant; however the Panel finds that the annexes to the Complaint, presenting correspondence with the registrars by the creative services company used by Complainant, do not clearly support the allegations. Nor does the Complaint provide credible explanations for the contradictions that appear in the annexed correspondence.
The creative services agency apparently wrote to the concerned registrar in October 2009. In that communication, the creative services company claims that the unauthorized transfer to Respondent took place through hacking of the creative services company’s account with the registrar. In response the registrar wrote that it had investigated, but found no indication of hacking or malfeasance in the transfer from a third party to Respondent of the disputed domain name.
The creative services agency also appears to have claimed to the registrar that it owned the trademarks listed in the Complaint; this claim contradicts representations in the body of the Complaint, and, as the Panel has already found above, those trademarks belong instead to Complainant.
It does not appear from the submitted correspondence that any further actions were taken by Complainant or the creative services agency with respect to the disputed domain name until March 2010. In an April 2010 email by the current registrar to the creative services company, the registrar stated that it received receipts from Respondent in support of Respondent’s claim that he purchased the disputed domain name from the creative services agency.
In other correspondence, the creative services agency was asked by the registrar to identify prior registrants listed for the disputed domain name. The agency responded that a named third party, unrelated to the agency, used his credit card to pay the registration fees from 2006 to 2009. The agency also explained that the third party, acting for the agency, deliberately listed wrong contact details in the WhoIs record.
In the absence of a Response, a Panel may accept as true the factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009). However, there is no rule requiring the Panel to do so, and the contradictions and anomalies presented in the annexes raise serious concerns about the credibility of the allegations in the Complaint.
Some of the evidence submitted with the Complaint bears upon whether Respondent may have rights or legitimate interests in the disputed domain name. However, as noted above, the evidence also raises unanswered questions in relation to the allegations of the Complaint. 3
Reviewing the evidence described above, the Panel finds that the Complaint does not adequately address the contradictions and questions that appear in the record. In this Panel’s assessment, it would be unsound to conclude that Respondent has no rights or legitimate interests in the disputed domain name, without more complete explanation or credible proof directed to the elements required by the Policy.
The Panel finds therefore that Complainant has failed to establish a prima facie case under Policy paragraph 4(a)(ii). C. Registered and Used in Bad Faith
Having failed to establish the second element of paragraph 4(a) of the Policy, the Panel must deny the Complaint. In the interests of completeness, however, the Panel will examine whether the Complaint establishes the third requirement under the Policy, registration and use in bad faith. As explained below, the Panel concludes that the Complaint again falls short of the requirements of the Policy.
Both the elements of bad faith registration and bad faith use must be established. E.g., E. & J. Gallo Winery v. Hanna Law Firm,WIPO Case No. D2000-0615; Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The Complaint fails to prove or directly address the elements of Policy paragraph 4(a)(iii) and to clarify the contradictions that arise from review of the annexes to the Complaint. Moreover, the Complaint’s naked allegations that Respondent is using a “false” company name in Lebanon that does not appear on a Google search – or that Respondent has refrained for four months from initiating a process to challenge the lock of the concerned registration and to change the content of the website to which the disputed domain name routes – are not sufficient by themselves to prove the registration and use in bad faith under Policy paragraph 4(a)(iii).4 7. Decision
In denying transfer, the Panel notes that its ruling is necessarily limited to the record before it. The Complaint does not squarely address the elements of the Policy, and the Panel is not in the position on the present record to make clear factual findings respecting the circumstances of the alleged wrongful transfer in 2009 of the disputed domain name to Respondent. Naturally, the present finding under the Policy does not preclude either party from pursuing the matter further through a court of competent jurisdiction, which with the benefit of cross-examination and further interrogation of a more complete record, different conclusions may be reached.
For all the foregoing reasons, the Complaint is denied.
Nasser A. Khasawneh
Sole Panelist
Dated: September 20, 2010
1 The Panel has undertaken limited factual research by viewing the website to which the disputed domain name resolves, and by viewing archives at “/index.php”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 4.5.
2 The Complaint also states that Complainant owns and has used the disputed domain name since its registration in January 2002. This representation is contradicted by online archives of the website to which the disputed domain name routes. Those archives indicate that the website was in existence and used to promote Complainant’s business since at least as early as March 2001. See /index.php.
3 It is significant to the Panel’s findings that the responses included in the annexes of not one, but two registrars raised questions about the creative services agency’s accusations of Respondent’s wrongdoing.
The Panel also notes that in Arabic, the term “Al durra” can be interpreted to mean pearl or something that is “jewel-like,” or of excellent quality. The name “Aldurra” or “Al-Durra” is also a popular surname in various regions of the world. These two facts raise additional open questions about whether Respondent might have rights or legitimate interests in the disputed domain name, although these must be weighed against the fact that no Response was in fact submitted in these proceedings.
4 From the record, it appears that Complainant delayed even longer – until March 2010 — in resuming the correspondence it had initiated with the registrars in October 2009.
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