Complainant is Goltens Worldwide Management Corp. of Manasquan, New Jersey, United States of America, represented by Al Tamimi & Company, United Arab Emirates.
Respondents are Suleman Bajwa of Lahore, Punjab, Pakistan and Goltens Middle East Marine Services L.L.C. of the United Arab Emirates. 2. The Domain Name and Registrar
The disputed domain name is registered with Omnis Network, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 15, 2014. On October 15, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 15, 2014, the Registrar transmitted by email to the Center its verification response confirming that Respondent Suleman Bajwa 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 Respondents of the Complaint, and the proceedings commenced on October 29, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 18, 2014. The Center received email communications from Respondent Suleman Bajwa on October 29, 2014, stating that he was not the Respondent and that he was only a web development company which registers domain names on request for his clients. The email suggested that the email address posted on the website to which the disputed domain name routes should be used for contact.
The Center acknowledged the email communications, noting that the question of which is the proper respondent would be determined by the Panel. Respondents did not submit any other responses.
The Center appointed Nasser A. Khasawneh as sole panelist in this matter on December 10, 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. Administrative Panel Order No. 1
In the interests of fairness and due expedition, on December 22, 2014, the Panel issued a Procedural Order, providing, among other things, the following:
“The Panel notes that the webpage to which the disputed domain name routes displays under the ‘About’ heading the following statement: ‘Goltens Middle East Marine Services L.L.C is a U.A.E registered company since 2005.’ Complainant is requested to submit specific allegations addressing the veracity of this statement from Respondent’s website, and the effect of such a company registration and use by Respondent of the name ‘Golten Middle East Marine Services L.L.C.’ on the issue of rights or legitimate interests under the second element of paragraph 4(a) of the UDRP.
Such allegations shall be submitted electronically to the Center and Respondent within five (5) days of the forwarding of this Order (i.e., by December 30, 2014).
Respondent shall submit comments that it deems necessary regarding Complainant’s submission to the Center within three (3) days from receipt of Complainant’s submission.”
Complainant requested an extension of the December 30 deadline. The Panel granted an extension until January 6, 2015 and the deadline for response by Respondents to Complainant’s new submission and for the Panel to render this Decision were extended accordingly.
Following the requested extension, on January 5, 2015, Complainant submitted the following response:
“[T]he Complainant submits that such veracity of the subject statement is indeed of issue and is rightly raised by the Panel so as to question its claim.
The Complainant submits that the Panel is bound to put the Respondent to strict proof of such a claim and the Respondent must substantiate such a claim by producing duly certified documentary evidence proving the claim.
In the event that the Respondent substantiates such a claim, the Complainant pleads that such a company registration represents yet another attempt by the Respondent to misappropriate the goodwill and reputation inherent in the GOLTENS trademark belonging to the Complainant as elaborated in the Complaint. The GOLTENS trademark’s ownership unquestionably rests with the Complainant and no other. The Complainant refers to its 70 year old heritage in its GOLTENS trademark as detailed in its Complaint as supporting evidence.
The Complainant will spare no resource in taking appropriate action against such misappropriation and will update the Panel accordingly as the matter takes its due course.”
Complainant’s response to the Panel Order is considered in detail below. 4. Factual Background
Complainant owns several registrations around the world for its GOLTENS. marks in International Class 37, including, for example, United Arab Emirates Trademark Registration Nos. 23608 and 32028.
The disputed domain name was registered on January 10, 2013. The website to which the disputed domain name routes appears to be the homepage of Respondent Goltens Middle East Marine Services L.L.C., promoting services and supply of goods to customers in the maritime industry. 5. Parties’ Contentions A. Complainant
Complainant avers that it provides leading repair and retrofit services around the world in situ for ship and power plant operators and that its trademarks have been established for several decades. Complainant avers that Respondents are not authorized to use the disputed domain name and have also copied some content from Complainant’s website.
Summarizing its legal contentions, Complainant alleges that (1) the disputed domain name is confusingly similar to Complainant’s trademark, (2) Respondents have no rights or legitimate interests in the disputed domain name, and (3) the disputed domain name was registered and is being used in bad faith, all in violation of the Policy.
Complainant seeks transfer. B. Respondent
Respondents did not reply to Complainant’s contentions nor to the Administrative Panel Order No. 1, however the individual Respondent did correspond with the Center by email as noted above. 6. Discussion and Findings A. Proper Respondents
The Panel first finds that the listed individual respondent Suleman Bajwa is a proper Respondent in this proceeding on the basis of the WhoIs record, which has also been verified by the Registrar. The Panel also finds that Goltens Middle East Marine Services L.L.C. is a proper Respondent, as explained below.
Respondent Sulemna Bajwa emailed the Center to state that he was a web development company registering domain names for clients, and suggested that the Center contact Goltens Middle East Marine Services L.L.C to reach the right respondent. The Complaint in this proceeding, and Complainant’s later response to the Panel’s Administrative Order No. 1, also characterized Goltens Middle East Marine Services L.L.C. as a Respondent. On the basis of these representations and the Panel’s review of the record, the Panel finds that Goltens Middle East Marine Services L.L.C. is a real party in interest whose rights are at issue in this proceeding. The Panel concludes therefore that Goltens Middle East Marine Services L.L.C. is a proper Respondent.
The Panel also notes that from the inception of this proceeding, the Center sent notifications to the contact email address posted on the Goltens Middle East Marine Services L.L.C. website, so appropriate notification under the Rules, paragraph 2(a) has been achieved. B. Substantive Rules of Decision
Complainant must establish that (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondents have 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. Policy paragraph 4(a).
Complainant must establish these elements even if Respondents submit no substantive response. See, e.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. In the absence of a response, the Panel may also accept as true the reasonable factual allegations in the Complaint. See, e.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425. C. Identical or Confusingly Similar
The Panel agrees with Complainant that the disputed domain name is confusingly similar to Complainant’s GOLTEN trademark.
UDRP panels frequently note that linking a trademark with a geographical name does not distinguish the domain name from the trademark. See, e.g., Koninklijke Philips Electronics NV v. Gopan P.K.,WIPO Case No. D2001-0171. In this proceeding, the Panel finds that the addition of the words “middle” and “east” to the trademark GOLTENfrom Complainant does not alter the confusion that Internet users would experience.
Therefore the Panel concludes that the requirements of Policy paragraph 4(a)(i) are established. D. Rights or Legitimate Interests
The Panel does not agree, however, that Complainant has fulfilled the requirements of Policy paragraph 4(a)(ii), as elaborated below.
Paragraph 4(c) of the Policy lists circumstances that may demonstrate when a respondent has rights or legitimate interests in a domain name. Under the Policy, if a respondent is commonly known by the disputed domain name, relief must be denied.
The factual question whether Respondent is commonly known by the disputed domain name arises, among other things, because pages from the website to which the disputed domain name routes display the statement that “Goltens Middle East Marine Services L.L.C is a U.A.E registered company since 2005.” Although the Complaint annexed these pages, the Complaint did not address the potential significance of this statement.
On the issue whether Respondents are known by the disputed domain name, the Complaint discussed only “Bizlinx Consultants,” a company affiliated with Respondent Bajwa.1 While Complainant’s submissions consistently treat Golten Middle East Marine Services L.L.C. as affiliated or related as a respondent in this proceeding, the Complaint did not discuss the name Golten Middle East Marine Services L.L.C. at all.
The quoted statement from the website to which the disputed domain name routes appears to support the possibility that Respondents’ rights or legitimate interests in the disputed domain name might preclude relief under the Policy. Consequently, the Panel issued Administrative Order No. 1, requesting that Complainant specifically address “the veracity of this statement from Respondent’s website, and the effect of such a company registration and use by Respondent of the name ‘Golten Middle East Marine Services L.L.C.’ on the issue of rights or legitimate interests under the second element of paragraph 4(a) of the UDRP.”
In its response, Complainant expressly agreed that this question was important to its claim for relief. Complainant, declined, however, to provide any information of substance in response to the Administrative Order (despite its request for an extension of time). Instead, Complainant asserted that “the Panel is bound to put the Respondent to strict proof of such a claim and the Respondent must substantiate such a claim[…].”
With all respect due, the Panel disagrees that the task of providing proof on the question of being commonly known by the disputed domain name belongs to Respondents at this point in the proceeding. Under the UDRP it is fundamental that complainants bear the burden to establish a prima facie case that respondents lack rights or legitimate interests. See e.g., WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.1; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455 (citing De Agostini S.p.A. v. Marco Cialone,WIPO Case No. DTV2002-0005). Once a complainant establishes its prima facie case, in the ordinary course, the absence of rights or legitimate interests is conclusively shown if a respondent does not rebut the complainant’s prima facie case.
Returning to the instant proceeding, the Panel has before it a clear statement submitted by Complainant suggesting that the disputed domain name has been used for business by one of the Respondents for several years. Despite the Panel’s specific invitation to address the impact of the statement in Complainant’s proof bearing on the “commonly known” issue, and an extension of time, Complainant has chosen to refrain from doing so. While that statement may not itself be completely reliable, the Panel cannot simply ignore its existence.
In consequence, and based on the current state of evidence, the Panel must conclude that Complainant fails to establish a prima facie case that there is a lack of rights or legitimate interests. Accordingly, the Complaint falls short of the requirements of Policy paragraph 4(a)(ii).2 E. Registered and Used in Bad Faith
In light of the conclusion that Complainant fails to establish that Respondents lack rights or legitimate interests, the Panel will forego any discussion of registration and use in bad faith under the Policy.
In closing, the Panel wishes to underscore the nature of the present proceeding. UDRP proceedings are constrained to narrow questions of abusive domain name registration under a particular set of rules. This Decision determines only that Complainant presently fails to establish its claim for relief under the UDRP.
The Panel expresses no view on any broader controversies among the parties respecting trademark, representative, or branding rights, which may be addressed under other rules or in other fora. 7. Decision
For the foregoing reasons, the Complaint is denied.
Nasser A. Khasawneh
Sole Panelist
Date: January 20, 2015
1 The Complaint identified Respondent as “BizLinx Consultants,” which apparently was the name listed in the WhoIs record at the time the Complaint was prepared. The individual name Suleman Bajwa was at that time listed as the administrative and technical contact for the registrant. The WhoIs record and Registrar verifications identified Bajwa as the individual registrant, adding the “Bizlink Consultants” organization name following his individual name. The Complaint expressly alleged that Golten Middle East Marine Services L.L.C. was an affiliated or related party.
2 Under some circumstances, allegations that a respondent copied material from the complainant’s website may be relevant to demonstrate bad faith. As specifically explained above, the Panel has concluded, on the basis of material that Complainant put in the record, that the Complaint does not meet the burden of establishing the absence of rights or legitimate interests. The Panel finds it unnecessary, therefore, to consider the potential significance of the Complaint’s copying allegations.
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