The Complainant is BlankPage AG of Zürich, Switzerland, internally represented.
The Respondent is Waleed Altywaijri of San Diego, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with 1&1 Internet AG (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 6, 2012. On November 6, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 7, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on November 9, 2012.
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 November 13, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was December 3, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 4, 2012.
The Center appointed Tony Willoughby as the sole panelist in this matter on December 10, 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
The Complainant is based in Switzerland. It is the registered proprietor of International Trademark Registration No. 1125513 dated July 5, 2012 KEETAB (word) in classes 9, 38 and 42 for a variety of goods and services relating to data processing apparatus, telecommunications and scientific and technological services.
The Domain Name was created on July 7, 2004 and is connected to a parking page advertising the services of the Registrar and headed “THIS DOMAIN HAS JUST BEEN REGISTERED FOR ONE OF OUR CUSTOMERS!” 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is identical or confusingly similar to the Complainant’s KEETAB registered trade mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. General
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark 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. B. Identical or Confusingly Similar
The Domain Name comprises the Complainant’s trade mark, KEETAB, and the generic “.com” top level domain suffix. For the purposes of assessing identity or confusing similarity under paragraph 4(a)(i) of the Policy it is permissible for the Panel to ignore the domain suffix.
The Panel finds that the Domain Name is identical to a trade mark in which the Complainant has rights. C. Rights or Legitimate Interests
In light of the Panel’s finding under paragraph D below, it is unnecessary for the Panel to address whether or not the Respondent has rights or legitimate interests in respect of the Domain Name. D. Registered and Used in Bad Faith
It will be noted from section 3 above that the original Complaint filed by the Complainant was found by the Center to be administratively deficient. The Center wrote to the Complainant on November 9, 2012 stating inter alia:
“In accordance with Rules, Paragraph 4(b), you are hereby notified of the following formal deficiencies with your Complaint:
[ X ] The Complaint does not describe the grounds on which it is made, as required by Rules, Paragraph 3(b)(ix).”
One of the starkest illustrations of a deficiency was the section of the Complaint dealing with this, the third element to be proved, namely that the Domain Name was registered and is being used in bad faith. On this topic the Complaint simply read “Not applicable”.
Following the Center’s Complaint Deficiency notification, the Complainant filed an amended Complaint in which this section now read:
“The website, shown under the domain showed a parking site which had links on it which lead to confusing websites, disturbing the meaning and image of our registered trademark. This advertisement website now already has been removed by the registrar.
The current owner does not use the domain name for a meaningful purpose. The website under the domain does not show any content.
Customers of BlankPage AG, searching for the product and trademark KEETAB are only finding an empty page, which leads to confusion.
When contacted about those issues, the respondent failed to reply to any of BlankPage AG several contact attempts and complaints.”
It is noteworthy that the Complaint (in both original and amended forms) has only one exhibit, the WhoIs search result showing that the Domain Name was created in July, 2004. The Complaint gives no details of the Complainant other than its address and trade mark registration. The Complaint gives no information as to the nature or history of the Complainant’s business. The Complaint makes reference to attempts by the Complainant to contact the Respondent, but no details of those attempts are provided save for an assertion that they were made over a 6 month period. The Complaint also refers to a confusing and damaging webpage to which the Domain Name was connected prior to it being taken down by the Registrar. The Panel has not been shown a copy of that webpage.
Significantly, the Complaint gives no indication as to the date of the Complainant’s trade mark registration. The Panel conducted an online search of the registry and found it to be July 5, 2012, eight years after “creation” of the Domain Name. Was it the Respondent who first registered the Domain Name back in 2004 or has the Respondent acquired the Domain Name more recently, as suggested by the Registrar’s parking page to which the Domain Name is now connected (“THIS DOMAIN HAS JUST BEEN REGISTERED FOR ONE OF OUR CUSTOMERS!”)? The Panel simply does not know. The Complainant has made no attempt to investigate the matter, or if it has, has thought it neither necessary nor appropriate to inform the Panel.
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove to the satisfaction of the Panel that the Domain Name was registered and is being used in bad faith. Even if, despite the lack of any supporting evidence, the Panel were to assume in the Complainant’s favour that the Respondent has used the Domain Name in bad faith, there is nothing in the Complaint to demonstrate that the Respondent was acting in bad faith when registering the Domain Name. Is there anything to suggest that the Respondent was even aware of the existence of the Complainant when he registered the Domain Name? Again, the Panel has no information on the topic.
The Panel has no alternative, but to conclude that the Complainant accurately assessed the situation when it entered “Not applicable” in this section of the original Complaint.
The Panel is not satisfied that the Domain Name was registered and is being used in bad faith. 7. Decision
For the foregoing reasons, the Complaint is denied.
Tony Willoughby
Sole Panelist
Date: November 11, 2012
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