The Complainant is The Karur Vysya Bank Limited of Tamil Nadu, India, represented by Indus Law Advocates, India.
The Respondent is Personal, Munagala, Lakshminarasimha of Simi Valley, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name (“the Domain Name”) is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 26, 2010. On August 26, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the Domain Name. On August 27, 2010, GoD, Inc. transmitted by email to the Center its verification response, providing registrant information for the Domain Name which differed from the named Respondent in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on September 7, 2010.
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”).
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 September 8, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 28, 2010. The Respondent sent email communications on September 21, 23, and 24, 2010 but did not submit any formal Response.
The Center appointed Alan L. Limbury as the sole panelist in this matter on October 5, 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.
Although the Complainant was unable to produce a copy of the Registration Agreement, the Registrar informed the Center that the language of the Registration Agreement is English. Accordingly, the language of this Administrative Proceeding is English. 4. Factual Background
The Domain Name was registered on August 22, 1998. It does not appear to have been used. According to the concerned registrar GoD, Inc., the Domain Name was registered to the Respondent “since at least February 27, 2004”.
The Complainant is the registered proprietor of Indian trademark KVB, No. 1143754, registered on October 16, 2002. 5. Parties’ Contentions A. Complainant
The Complainant says that it was incorporated in December 1958, since when it has provided banking services under the brand name KARUR VYSYA BANK. It has registered numerous domain names between February, 2003 and February, 2007, including on February 28, 2003, and , both on October 17, 2003, and and both on July 1, 2005.
The Complainant says the Domain Name is identical or confusingly similar to the trademark KARUR VYSYA BANK, over which the Complainant has exclusive rights, and that the Respondent has no rights or legitimate interests in respect of the Domain Name since no licence/permission was ever granted to the Respondent to use the brand name; the Respondent has registered the Domain Name in bad faith and without any intention to use it for banking services or any other service; and the Respondent has maliciously blocked the Domain Name and is also promptly renewing year after year since 1998.
The Complainant says the Respondent has registered and is using the Domain Name in bad faith for: (a) selling, renting, or otherwise transferring the Domain Name registration to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's out-of-pocket costs directly related to the Domain Name; (b) to prevent the Complainant from reflecting the mark in a corresponding domain name; (c) to intentionally hamper and cause undue inconvenience to the Complainant's business; (d) to mislead the public and cause confusion.
The Complainant requests transfer of the Domain Name to the Complainant. B. Respondent
The Respondent did not reply formally to the Complainant’s contentions but communicated informally with the Center. The Panel has read those communications but finds it unnecessary to summarise them. 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.”
Under paragraph 4(a) of the Policy, to succeed the Complainant must satisfy the Panel that:
(i) the 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 Domain Name; and
(iii) the Domain Name was registered and is being used in bad faith. A. Identical or Confusingly Similar
Proof by a complainant that it has rights in a trademark is an essential prerequisite to relief under the Policy. See Saint Francis Hospital and Medical Center v. Registrant (187640),WIPO Case No. D2006-0543.
The test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone: Wal-Mart Stores, Inc. v. Traffic Yoon,WIPO Case No. D2006-0812. The top level domain “.com” 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.
The only evidence before the Panel of a registered trademark owned by the Complainant is contained in the annexure to the amended Complaint, which shows the Complainant as registered proprietor of the Indian trademark KVB. The Domain Name is neither identical nor confusingly similar to that mark.
To succeed in the Complaint under the Policy in relation to an unregistered mark, it is necessary for the Complainant to produce evidence proving that, prior to the filing of the Complaint, it has provided goods or services under the unregistered mark and had thereby acquired a reputation such that members of the public would associate those goods or services with the Complainant and not with others not authorized by the Complainant to use the mark. That is to say, the Complainant must prove that, prior to filing the Complaint, it had acquired a right in the unregistered mark such as would enable it to bring a legal action against a third person using the mark without its consent: British Heart Foundation v. Harold A Meyer III (eResolution Case No. AF0957).
Here the Complainant has made no express claim to common law rights and has provided no evidence of having acquired the requisite reputation. It is not appropriate for the Panel to speculate, nor to accept mere assertion as proof.
Accordingly, the Panel finds that the Complainant has failed to demonstrate in this Administrative Proceeding that it has rights in a trademark with which the Domain Name is identical or confusingly similar. The Complaint must be dismissed. It is unnecessary to consider the other elements which must be established in order to entitle the Complainant to the relief which it seeks. 7. Decision
For all the foregoing reasons, the Complaint is denied.
Alan L. Limbury
Sole Panelist
Dated: October 12, 2010
Full & Egal Universal Law Academy