Complainants are Scandinavian Leadership AB and Mindo AB of Uppsala, Sweden, internally represented.
Respondent is Internet Masters of Ecuador, internally represented. 2. The Domain Name and Registrar
The disputed domain name is registered with Tucows Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on June 21, 2012. On June 22 and 25, 2012, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the disputed domain name. On June 22 and 25, Tucows Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, Complainants1 filed an amended Complaint on June 26, 2012. All subsequent references in this Decision to the Complaint are to this amended Complaint.
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 June 27, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was July 17, 2012. Two email communications were received from Respondent by the Center on June 26, 2012, and one email communication was received from Respondent by the Center on June 27, 2012. The Response was filed with the Center on July 13, 2012.
The Center appointed Richard G. Lyon as the sole panelist in this matter on July 23, 2012. The Panel finds that it was properly constituted and has jurisdiction to decide this administrative proceeding. The Panel has submitted his 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
Complainants Scandinavian Leadership AB and Mindo AB, Swedish stock corporations, are apparently affiliated companies. They provide development programs for young leaders. Complainant Mindo AB holds registered trademarks for MINDO in several countries, including the United States of America, the European Union, and Japan, but not (so far as the record indicates) any jurisdiction in South America. The earliest such trademark is dated 1995. MINDO, an acronym for “My INdividual DevelOpment,” is a process developed by Complainants and used in their business. According to Complainants, from 1998 one or both of Complainants owned the disputed domain name and used it in their business.
Respondent, based in Ecuador, is a reseller for the registrar; its business is “offer[ing] new domain name registration and web hosting solutions to the public. [Respondent] also buys already registered or expired domain names in order to sell or park for profit, dealing with the owner or participating in domain auctions.” Respondent acquired the disputed domain name in a SnapNames auction in February 2012.
The disputed domain name resolves to a standard parking page of hyperlinks, most of which are related to tourism based in or near Respondent’s home country, Ecuador, in particular the Mindo area, which according to Wikipedia is known for “its growing ecotourism industry based in the Mindo-Nambillo Protected Forest.” None of the hyperlinks mentions Complainants, Complainants’ business, or Complainants’ competitors. 5. Parties’ Contentions A. Complainants
As to paragraph 4(a)(i) of the Policy, Complainants assert that the disputed domain name is identical to their registered trademark MINDO. As to paragraphs 4(a)(ii) and 4(a)(iii), Complainants’ contentions, in full, are as follows:
“B. The Respondent has no rights or legitimate interests in respect of the domain name(s);
(Policy, Paragraph 4(a)(ii); Rules, Paragraph 3(b)(ix)(2))
• Scandinavian Leadership AB and Mindo AB have used the registered trademark and subsequently the domain for considerable time – since 1995 and 1998 respectively – and the trademark is registered in many countries over the world. We have good references among young leaders who
regard Mindo® as a strong contributor to their success in their career. As it is now the current holder of the domain causes confusion for our business. A screen shot is submitted as Annex 4. We think that the Respondent registered the domain with the purpose to sell it and make a good profit. A five letter domain is not easy to come by and is very valuable. For Scandinavian Leadership AB and Mindo AB, regaining the domain , is a way to secure our promise to young leaders over the world which is built in in the trademark Mindo®.
C. The domain name was registered and is being used in bad faith. (Policy, paragraphs 4(a)(iii), 4(b); Rules, paragraph 3(b)(ix)(3))
• We, at Scandinavian Leadership AB and Mindo AB, know that a five letter domain is valuable and could render a lot of money on the open market. We are of the opinion that the Respondent has registered the domain with the only purpose of selling it to a buyer for a good profit. They do not have rights to the domain for their type of business.” B. Respondent
Respondent’s defense is based in part upon the fact that Mindo is a popular tourist destination in Ecuador.
As to paragraph 4(a)(i) of the Policy, Respondent questions whether Complainants or anyone else may hold trademark rights in a geographic location. Respondent cites two2 of “many” Policy cases that deny such rights.
As to paragraphs 4(a)(ii) and 4(a)(iii), Respondent asserts that its business as described above is entirely legitimate (“honest and valid activity”). Respondent registered and used the disputed domain name because of its popularity in Ecuador and has in no way taken any advantage of Complainants or their MINDO mark. On the contrary the website associated with the disputed domain name “doesn’t claim to be the Complainant, doesn’t have links to the Complainant’s website, also doesn’t offer services or products similar to what the Complainant offers.”
Respondent suggests that this case more closely resembles Reverse Domain Name Hijacking than a valid claim. 6. Discussion and Findings A. The Complaint Must be Denied for Lack of Evidence
In this Policy proceeding, Complainants must prove by competent evidence that:
i) The disputed domain name is identical or confusingly similar to a trademark in which Complainants hold rights, and
ii) Respondent lacks rights or a legitimate interests in the disputed domain name, and
iii) Respondent registered and used the disputed domain name in bad faith.
Policy, paragraph 4(a).
The Panel has italicized the word “and” above to note that these requirements are conjunctive. Failure to prove any one of them results in a denial of the Complaint. In this proceeding the Panel needs look no further than the Complaint to determine that Complainants have not made the requisite showing under the latter two Policy heads.
Complainants furnish no evidence at all to show that Respondent lacks rights in the disputed domain name or registered or used it in bad faith. The only evidence or proof referred to in or annexed to the Complaint are several of Complainants’ trademark registrations and a screen shot of the hyperlinks page at the disputed domain name. There is no proof (indeed no specific allegation) that Respondent used or tried to use the disputed domain name to take advantage of Complainants’ MINDO mark. The record in this case reveals no proof (and again there is no allegation) why a Respondent based in Ecuador might be aware of Complainants in Sweden or their trademark.
All Complainants offer are a claim of trademark ownership and their “opinion” that Respondent might try to profit from the disputed domain name’s inherent value as a five-letter domain name, not even that the sale price reflected any goodwill attached to Complainants’ mark. Unsupported conjecture or speculation, like unsupported allegations of desired legal conclusions, is of no force or effect under the Policy; evidence to meet paragraph 4(a)’s express requirements is necessary. See Western Research 3000, Inc. v. NEP Products, Inc.,WIPO Case No. D2004 0755, a default case in which the panel nevertheless denied the complaint, stating: “The Policy requires the Complainant to prove each of the three elements” (emphasis in original; citation omitted).
Without reference to the Response, the Panel denies the Complaint. B. Reverse Domain Name Hijacking
The Rules define (paragraph 1) Reverse Domain Name Hijacking (RDNH) as “using the UDRP in bad faith to attempt to deprive a registered domain-name holder of a domain name” and instruct (paragraph 15(e)) a panel that “after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding.” Respondent has intimated that such a finding is appropriate on the facts of this proceeding. The Panel agrees.
Ordinarily if the face of the Complaint itself demonstrates a settled reason why the Complaint must be denied, a panel may make a finding of RDNH. See, for example, Mile, Inc. v. Michael Burg,WIPO Case No. D2010-2011; Liquid Nutrition Inc. v. /Vertical Axis Inc.,WIPO Case No. D2007-1598. As stated in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 4.17: “WIPO panels have found Reverse Domain Name Hijacking in circumstances including where: the complainant in fact knew or clearly should have known at the time that it filed the complaint that it could not prove one of the essential elements required by the UDRP.” However, a finding of RDNH is always within the Panel’s discretion, see Rudy Rojas v. Gary Davis,WIPO Case No. D2004-1081 (facts justified RDNH but panel determined “to leave the parties as it found them”).
In the Panel’s view, the record in this case clearly supports a finding of RDNH, as Complainants should have known that their allegations must be supported by evidence, not merely “opinion;” i.e., that the Policy and the Rules require more than ownership of a valid trademark and surmise. See Policy, paragraph 4(b) (“[i]n the administrative proceeding, the complainant must prove that each of these three elements are present”) and Rules, paragraph 3(b)(xv). Possible ignorance of these basic premises of the UDRP process does not excuse Complainants’ conduct. As this Panel stated in his concurring opinion in Credit Europe Bank N.V. v. Peter Yu,WIPO Case No. D2010-0737, “[t]he Policy has been in force for more than a decade and the thousands of cases decided under it now constitute a workable body of (to use a legal term) precedent. In my opinion any complainant, and even more so any professional representative of a complainant, should be at least minimally versed in the Policy, the Rules, their scope, and their limits. It is no excuse that a party or its representative is unfamiliar with clear Policy precedent, much less the clear language of the Policy and the Rules themselves.”
Also, with any basic pre-Complaint diligence Complainants should have known that the Complaint was groundless. Complainants were concededly aware of the popular geographic location Mindo, as a screenshot of the page at the disputed domain name is an annex to the Complaint and the links on that page mostly revert to Mindo-area businesses. Moreover that fact is common knowledge, or would be to anyone who bothered to look.3 Aware that a resident of Ecuador such as Respondent might choose a domain name featuring a well-known local area, Complainants were required by the Policy and the Rules to explain why this might not furnish a right or legitimate interest in the disputed domain name and why the registration and use of the disputed domain name should be considered in bad faith. See Rules, paragraph 3(b)(xiv), which requires a complainant to certify that “[…] the assertions in this Complaint are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.” Complainants’ rote recital of this certification in the present Complaint has no foundation in the undisputed facts.
That Complainants may once owned the disputed domain name likewise does not excuse the deficiencies in the Complaint. There is not even an allegation, much less evidence, that Respondent engaged in any improper conduct in connection with Complainants’ loss of the disputed domain name or Respondent’s acquisition of it. As Respondent notes, domain names are bought and sold regularly, and although prior ownership may have helped establish Complainants’ case only under Policy, paragraph 4(a)(i), it does not, without additional evidentiary support, help Complainants’ case under Policy paragraphs 4(a)(ii) or 4(a)(iii).
The entirety of the Complaint is that Complainants have a mark, Respondent does not, and the five-letter disputed domain name is valuable. In these circumstances, the Panel finds such a pleading to be an abuse of the UDRP process and enters a finding that Complainants have engaged in Reverse Domain Name Hijacking. 7. Decision
For all the foregoing reasons, the Complaint is denied.
Richard G. Lyon
Sole Panelist
Date: July 26, 2012
1 From the annexes to the Complaint it appears that Complainant Mindo AB owns the trademark upon which the Complaint is based and therefore is the appropriate Complainant. However, although Complainants have stated that they belong to the same group, their exact relationship is still somewhat unclear and the Panel’s analysis does not turn on which has the right to bring this proceeding. For convenience the Panel will refer to Complainants interchangeably.
2 BBVA Bancomer Servicios, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA Bancomer, División Fiduciaria, en su carácter de fiduciaria del fideicomiso identificado en sus registros como Fideicomiso de Turismo de Puerto Vallarta (Fideicomiso No. 41384-9 (Tourism Trust for Puerto Vallarta)) v. Proinco Internacional, S.A. de C.V. and Pablo Héctor González Ortega,WIPO Case No. D2004-0209; Stadt Heidelberg v. Media Factory,WIPO Case No. D2001-1500.
3 On the first page of the Panel’s Google search for “mindo” ten of the eleven results referred to the ecotourist region in Ecuador; the Panel ceased seeking for an entry about Complainants after page 10.
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