The Complainant is Dar Al-Arkan Real Estate Development Company of Riyadh, Saudi Arabia represented by Latham & Watkins LLP, United Kingdom of Great Britain and Northern Ireland.
The Respondent is AnonymousSpeech AnonymousSpeech of Tokyo, Japan. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 2, 2012. On April 3, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 3, 2012, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on April 4, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was April 24, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 26, 2012.
The Center appointed Christopher J. Pibus, Charters Macdonald-Brown and Susanna H.S. Leong as panelists in this matter on May 15, 2012. The Panel finds that it was properly constituted. Each member of 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 is a commercial property developer located in Saudi Arabia, where it is listed on the Saudi Arabian Stock Exchange. The Complainant’s business was established in 2004 and provides a variety of real estate services and real estate management services to clients under the trade name and trademark DAR AL-ARKAN.
The Complainant owns four trademark registrations in Saudi Arabia, details as shown below:
DAR AL-ARKAN - Registration No. 28/812
DAR AL-ARKAN - Registration No. 78/1057
DAR AL-ARKAN INVESTMENT - Registration No. 79/1057
DAR AL-ARKAN REAL ESTATE DEVELOPMENT - Registration No. 25/812
The disputed domain name was registered on January 10, 2012. At the time the Complaint was filed the disputed domain name reverted to a website that contained many allegations of misconduct on the part of the Complainant. The website also contained over 400 documents which purport to relate to the Complainant’s alleged misconduct and business activities. 5. Parties’ Contentions A. Complainant Identical or Confusingly Similar
The Complainant owns four trademark registrations for the trademark DAR AL-ARKAN, including Saudi Arabian Trademark Registration Nos. 28/812 and 78/1057. The Respondent has registered the disputed domain name which is identical to the Complainant’s registered trademark, except for the addition of the word “crisis” and the “.com” designation. The Complainant contends that the addition of a descriptive word such as “crisis” does not distinguish the disputed domain name from the registered trademark. Rights or Legitimate Interests
The Respondent is not publicly known by the DAR AL-ARKAN name, and the Complainant submits that the Respondent cannot have any rights or legitimate interest in the disputed domain name, because the Complainant has registered exclusive rights to the trademark DAR AL-ARKAN in Saudi Arabia. The Respondent has no past or current business relationship with the Complainant, and the Respondent was never licensed or otherwise authorized to use the Complainant’s trademark. Further, the Respondent is not making a bona fide use of the disputed domain name, and has used the disputed domain name in connection with a website which contains defamatory remarks and false accusations against the Complainant and its business. Registered and Used in Bad Faith
The Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith for the following reasons: (i) the Respondent registered and is using a confusingly similar domain name which reverts to a website which contains false accusations, defamatory remarks and reproduces confidential proprietary documents of the Complainant; and (ii) the Respondent has gone to great lengths to conceal its identity. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) The disputed domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interest in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant does own trademark rights in the mark DAR AL-ARKAN by virtue of Saudi Arabian Trademark Registration Nos. 28/812 and 78/1057.
The Panel further finds that the disputed domain name is identical or confusingly similar to the Complainant’s registered trademark DAR AL-ARKAN, except for the addition of the descriptive word “crisis”. The addition of this descriptive word does not serve to distinguish the disputed domain name from the registered trademark, in that the additional descriptive word is clearly a secondary element, which is preceded by the distinctive DAR AL-ARKAN trademark itself.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Under Paragraph 4(a)(ii) of the Rules, the Complainant has the burden of making out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. Once a prima facie case is made, the burden shifts to the Respondent to demonstrate rights or legitimate interests in the disputed domain name (Chubb Security Australia PTY Limited v. Mr. Shahim Tahmasebi, WIPO Case No. D2007-0769).
On the record, there is no evidence to suggest that the Respondent has any rights or legitimate interests in the disputed domain name, or in any variation of the Complainant’s registered DAR AL-ARKAN trademark. Neither the Respondent’s name nor its administrative and technical contact information reveals any right or legitimate interest in the Complainant’s DAR AL-ARKAN mark. The Complainant has never licensed or otherwise permitted the Respondent to use its DAR AL-ARKAN trademark, or to register or use a domain name incorporating the DAR AL-ARKAN trademark. There is no relationship between the parties which would justify the use of the disputed domain name. The Respondent registered the disputed domain name without authorization, knowledge, or the consent of the Complainant. Taken together, these facts constitute a prima facie case showing that the Respondent lacks any rights or legitimate interests in the disputed domain name.
The Panel is aware of the issue whether a criticism site can give rise to a right or legitimate interest for the purpose of Paragraph 4(a)(ii) of the Rules because it amounts to a legitimate noncommercial or fair use of the domain name. This issue was considered at length and the views of UDRP panelists in other cases were reviewed extensively in Chubb Security Australia PTY Limited v. Mr. Shahim Tahmasebi, WIPO Case No. D2007-0769. The Panel agrees with the view expressed in this case that it is not legitimate to use the Complainant’s own trademark as a platform for criticizing the Complainant itself. Also, as stated in that decision, there is nothing to prevent the Respondent from choosing a domain name that more accurately states its purpose as a criticism site and is not identical or confusingly similar to the Complainant’s trademark.
In the light of the fact that the Respondent has made no response to the Complaint, the Panel is prepared to find that the Respondent has no rights or legitimate interest in the disputed domain name. Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Complainant relies on two primary factors in support of a finding of bad faith: (1) the nature of the Respondent’s website; (2) the manner in which the Respondent has concealed its identity.
With respect to the website content, the Complainant forcefully argues that allegations of money laundering, fraud and breaching market regulations are extremely serious allegations, which point to the Respondent’s bad faith intention to damage and tarnish the Complainant’s business reputation.
The Complainant relies on the reasoning in Chubb Security Australia PTY Limited v Mr. Shahim Tahmasebi, WIPO Case No. D2007-0769:
“In the present case, in choosing the Complainant’s name and the [Complainant’s] trademark as the dominant feature of the domain name, the Respondent has created a situation where at least some users will be attracted to the site because of its name and will then be subjected to a strong attack on the Complainant, including allegations that it is corrupt and in breach of the law and other allegations clearly designed to damage the Complainant in the eyes of its customers and potential buyers as well as in the eyes of the public.
In the opinion of the Panel, that conduct amounts to bad faith both with respect to registering the domain name and using it in the website.”
In the present case, the Complainant argues, and the Panel accepts, that the facts present an even more egregious situation, in that the Respondent has also made available on its website a wide array of confidential commercially sensitive documents which have been purloined from the Complainant.
In the Panel’s view, these arguments are well-founded and compelling, particularly when coupled with the evidence that the Respondent has deliberately concealed its identity. In light of these findings, it is not necessary for the Panel to determine whether the Respondent is who the Complainant suspects. For purposes of this Complaint, the Panel is prepared to find bad faith on the part of the Respondent, which is sufficient to satisfy the requirement under paragraph 4(a)(iii) of the Policy. 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.
Christopher J. Pibus
Presiding Panelist
Charters Macdonald-Brown
Panelist
Susanna H.S. Leong
Panelist
Dated: June 4, 2012
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