Complainant is Qwizzle, LLC of Littleton, Colorado, United States of America, represented by Cloudigy Law PLLC, United States of America.
Respondent is WhoIs Privacy Protection Service, Inc. / Profile Group of Bellevue, Washington, United States of America, and Wilmington, Delaware, United States of America, respectively, represented internally. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with eNom, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and MediationCenter (the ”Center”) on March 26, 2012. On March 27, 2012, the Center transmitted by e-mail to eNom, Inc. a request for registrar verification in connection with the Domain Name. On March, eNom transmitted by e-mail to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an e-mail communication to Complainant on March, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on March. 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 Respondent of the Complaint, and the proceedings commenced on April 2, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was April. The Response was filed with the Center on April 21, 2012.
The Center appointed Robert A. Badgley as the sole panelist in this matter on April 30, 2012. 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 the registered trademark QWIZZLE, which was registered by the United States Patent and Trademark Office on September 6, 2011. The mark covers leasing of real estate, real estate agencies, real estate brokers, and associated activities. Complainant first used the mark on June 1, 2010, and first used it in commerce on September 1, 2010.
Respondent registered the Domain Name at some point between July, and November. The publicly available WhoIs states the Domain Name was registered on July. The record is not entirely clear on this point, but it is common ground that Respondent had registered the Domain Name prior to Complainant’s first use of the QWIZZLE mark.
The website to which the Domain Name resolves is a landing page for per-per-click advertisements, including a number of links to websites offering credit scores. The website at the Disputed Domain Name also indicates that the Domain Name “may be for sale,” and provides a link to another website at which one may offer to buy the Domain Name.
Complainant attempted to make contact with Respondent in May 2010 – prior to any use of QWIZZLE as a mark by Complainant – in an effort to purchase the Domain Name. Respondent never replied to Complainant. 5. Parties’ Contentions A. Complainant
Complainant’s main factual assertions are set forth above in the Factual Background discussion, or will be set forth below in the context of particular elements under the Policy. B. Respondent
Respondent emphasizes that it cannot be found to have registered the Domain Name in bad faith under the Policy because it registered the Domain Name prior to Complainant’s first use of the QWIZZLE mark. Respondent makes a number of other arguments about the legitimacy of its activities, but the Panel will not record them here because they are extraneous to the Panel’s disposition of this case. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name in order to justify its request for transfer:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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. Identical or Confusingly Similar
There is no dispute that Complainant holds rights in the mark QWIZZLE, and that the Domain Name is identical to that mark.
Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied. B. Rights or Legitimate Interests
The Panel declines to rule on this element of the Policy, since the Panel finds (below) that the Domain Name was not registered in bad faith. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use the Domain Name in bad faith:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
Whatever the merits of Complainant’s case may be with respect do the claimed bad faith use, the Panel finds that Complainant has failed to establish on this record that the Domain Name was registered in bad faith. The fatal flaw in Complainant’s case is that there is no evidence that Respondent registered the Domain Name with Complainant or its mark in mind. Complainant’s registered trademark for QWIZZLE indicates that Complainant’s first use of that mark in commerce was on September 1, 2010. The Panel finds that Respondent had registered the Domain Name no later than November, nearly a year earlier. The Panel finds no evidence that the Respondent was aware of Complainant and its then non-existent trademark rights when it registered the Domain Name or that it was aware of and targeting any likely to be obtained trademark rights or such trademark rights in fact. See e.g. paragraph 3.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") and decisions cited therein. The Panel therefore concludes that Respondent could not have registered the Domain Name in bad faith.
Accordingly, the Panel finds that Policy paragraph 4(a)(iii) has not been satisfied. 7. Decision
For all the foregoing reasons, the Complaint is denied.
Robert A. Badgley
Sole Panelist
Dated: May 6, 2012
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