The Complainant is Robert Kennedy College of Zurich, Switzerland, internally represented.
The Respondent is Domain Name Proxy Service, Inc of Metairie, Louisiana, United States of America (“USA”). 2. The Domain Name and Registrar
The disputed domain name is registered with DNC Holdings, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 10, 2014. On January 10, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 13, 2014, 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 amendments to the Complaint on January 15 and January 16, 2014.
The Center verified that the Complaint together with the amendments to 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 with the amendments, and the proceedings commenced on January 17, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was February 6, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 7, 2014.
The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on February 13, 2014. 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 an entity based in Zurich, Switzerland. The Complainant claims to be the owner of Swiss registered trademark no. P-464274 for the word mark ROBERT KENNEDY UNIVERSITY, registered on March 16, 1999. This trademark does not however appear to be owned by the Complainant but by an entity named “Robert Kennedy University”, which has a different address in Zurich from that of the Complainant. The relationship between these two entities is not explained by the Complainant.
The disputed domain name was created on June 30, 2003. According to the WhoIs for the disputed domain name, the Respondent appears to be a proxy or privacy service; however no underlying registrant has been disclosed by the Registrar during the verification process. The website associated with the disputed domain name claims to represent a global community of learners and working professionals and to offer a series of online degree programs. 5. Parties’ Contentions A. Complainant
The Complainant’s contentions are limited and, subject to minor amendments made by the Panel to spelling and grammar may be quoted verbatim:
The Complainant is the owner of the trademark ROBERT KENNEDY UNIVERSITY under number P-464274 registered in Switzerland since 1999 and the trademark ROBERT KENNEDY COLLEGE registered in Switzerland, the USA and Canada.
The Respondent apparently created the disputed domain name as a sole way to mislead the public to believe that another institution exists called “Kennedy University”. The associated website’s claims of 224,000 alumni, a global presence in 2,546 cities and 263 million awards of financial aid, and all accreditations listed on that page appear to be non-existent. There is no such institution chartered or registered in Switzerland or in the USA and there is no physical address listed on the website. In practice, it appears that this institution does not exist but is using the trademark that the Complainant has owned since 1999 to confuse the public.
The disputed domain name is used in bad faith as it presents a number of inconsistent statements about an institution that does not exist. It was registered to use the high ranking and number of searches that “Robert Kennedy College” and “Robert Kennedy University” have since 1999 to mislead the public about the existence of another institution of higher learning with a similar name. There is no real institution behind the disputed domain name and it was apparently registered with the sole purpose to confuse and mislead the public. Additionally, the website represents as meta data “Robert Kennedy University” that is identical to the Complainant’s trademark and appears on web searches for Robert Kennedy College. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests 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
There are two parts to the inquiry under the first element of the Policy. The Complainant must first demonstrate that it has rights in a trademark and secondly that the disputed domain name is identical or confusingly similar to such trademark.
The Complainant claims that it is the owner of a Swiss registered trademark for the word mark ROBERT KENNEDY UNIVERSITY. However, as noted in the Factual Background section above, this trademark is not in the Complainant’s name but is owned by an entity named “Robert Kennedy University” which has a different address in Zurich from the one supplied by the Complainant. The Complainant does not explain the connection between it and the owner of this mark. Are “Robert Kennedy College” and “Robert Kennedy University” interchangeable names for the same institution? Does the trademark belong to a related entity of which the Complainant is a subsidiary or parent? The Panel does not know on the available record. Furthermore, although the Complainant asserts that it is also the owner of other marks, copies of these are not produced, such that the Panel cannot find any support for the Complainant’s contentions from the manner in which the other marks are held.
In these circumstances, it is not necessary for the Panel to examine whether the disputed domain name is identical or confusingly similar to the trademark upon which it relies, as the Complainant has failed to demonstrate that it has rights in such trademark. The Panel is conscious of the fact that in terms of paragraph 12 of the Rules it could have called for an explanation from the Complainant as to how its claimed trademark is held, by whom and how the holder is related to the Complainant. However, as the Panel noted in the recent cases of CAM London Limited and Comgest Asset Management International Limited v. Cam LondonLtd,WIPO Case No. D2013-2190 and 5 PRE VIE W AB v. Diego Manfreda,WIPO Case No. D2013-1946, complainants should “get it right” the first time and should provide all the information necessary to prove their case from the material contained in the complaint and its annexes alone. To give the Complainant “a second bite at the apple” would not be in line with the spirit of expediency and efficiency suggested in the Policy (Blandy & Blandy LLP v. Mr. Daniel Beach, WIPO Case No. D2012-0972).
In all of these circumstances, the Panel finds that the Complainant has failed to establish the first element under the Policy. B. Rights or Legitimate Interests
The requirements of paragraph 4(a) of the Policy are conjunctive. A consequence of this is that failure on the part of a complainant to demonstrate one element of the Policy will result in failure of the complaint in its entirety. Accordingly, in light of the Panel’s finding under the preceding head, it is unnecessary for the Panel to address the issue of the Respondent’s rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
As noted above, in light of the Panel’s finding in terms of paragraph 4(a)(i) of the Policy, it is not strictly necessary for the Panel to address the issue of registration and use in bad faith in the present case. However, the Panel wishes to note that in its opinion the Complaint would still have failed on the issue of registration and use in bad faith even if the Complainant had been able to demonstrate to the Panel’s satisfaction that it was the owner of the registered trademark upon which it relies in its Complaint and that the disputed domain name was identical or confusingly similar thereto.
The Complainant’s submissions on the topic of registration and use in bad faith are extremely meager, as will be noted from section 5A above where they are repeated almost verbatim. A major problem for the Complainant’s case is that even if it is accepted that the institution portrayed by the Respondent’s website does not exist, an assertion for which no supporting evidence or additional explanation has been produced, this does not of itself demonstrate registration or use in bad faith. The Complainant must show that the Respondent had the Complainant’s rights in mind at the time when it registered the disputed domain name and that it is using the disputed domain name with intent to target such rights. The Complainant does not provide any information regarding its institution or organization which might have assisted on this point. What type of institution is the Complainant? Is it the only institution of this name in existence? Is it a prominent institution? How well-known is the trademark relied upon by the Complainant? The Panel does not know on the available record.
The Complainant’s contention that the Respondent has generated a confusing entry in a search engine is based upon a single screenshot of an unnamed, and, to the Panel, unidentifiable search engine. There is no evidence before the Panel that the Respondent influenced the entry on this search engine in any way. Nor is there any evidence available of the meta data alleged by the Complainant to be present on the Respondent’s website.
In short, there is nothing in the record before the Panel that raises a reasonable inference that the Respondent was most probably targeting the Complainant, and any rights which it might possess, via the Respondent’s registration and use of the disputed domain name. Accordingly, had it been necessary to make a finding in terms of paragraph 4(a)(iii) of the Policy, the Panel would also have found that the Complainant had failed to establish that the disputed domain name was registered and used in bad faith. 7. Decision
For the foregoing reasons, the Complaint is denied.
Andrew D. S. Lothian
Sole Panelist
Date: February 27, 2014
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