The Complainant are Bharti Enterprises (Holding) Private Limited and Bharti Airtel Limited of New Delhi, India (the "Complainants"), represented by Vutts & Associates LLP, India.
The Respondent is Komal Jain of Uttar Pradesh, India. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 8, 2015. On January 8, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 8, 2015, 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 January 9, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was January 29, 2015. Due to an administrative oversight, it appears that, even though the Center's previous communication entitled "Notification of Complaint and Commencement of Administrative Proceeding" was duly and successfully transmitted to the email addresses provided by the Registrar and the Complainant, and the Written Notice was also successfully transmitted by courier to the physical addresses of the Respondent, it was not copied to an email address appearing in the body of the Complaint: "[….]@".
Consequently, the Respondent was provided five (5) days, in order to indicate to the Center by return email whether it intended to participate in these proceedings. Accordingly, the due date for the submission of any Response, or the indication that the Respondent intended to submit any such Response, was set at February 21, 2015. The Respondent sent an informal Response from the email address provided by the Registrar on February 21, 2015.
The Center appointed Amarjit Singh as the sole panelist in this matter on February 27, 2015. 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 Complainants in this administrative proceeding are:
1) Bharti Enterprises (Holding) Private Limited ("Complainant No. 1") and;
2) Bharti Airtel Limited ("Complainant No. 2").
The Complainants are Indian companies and part of the Bharti Group of companies and their portfolio of businesses includes telecommunication services and equipment, information technology, insurance, agricultural products, retail, realty and food.
This Complaint is based on the Complainant No. 1's corporate name and umbrella trademark BHARTI ("Mark – BHARTI") and the Complainant No. 2's trademark AIRTEL & Logo ("Mark – AIRTEL") hereinafter together referred to as the "Mark". In these proceedings, all references to the Complainants shall include Complainant No. 1, Complainant No. 2 and Bharti group of companies, their predecessors in interest and title, principals, subsidiaries and affiliates.
The Respondent in this administrative proceeding is Komal Jain located Uttar Pradesh, India. The disputed domain name was registered on December 8, 2014. 5. Parties' Contentions A. Complainant
The Mark BHARTI is the registered trademark of the Complainant No. 1 and is used as corporate trademark for Bharti group of companies and features in the corporate names of the Complainant's group of companies and features in the corporate names of the Complainants' group companies, e.g., BHARTI AIRTEL, BHARTI AXA, BHARTI INFRATEL, BHARTI REALTY, BHARTI RETAIL, BHARTI SOFTBANK HOLDINGS, etc., and is exclusively associated with the Complainants' group that includes more than 70 different companies spread across the globe. The group is commonly referred to as the Bharti Group in India and around the world, including countries in Asia and Africa. In these proceedings, the Complainants and their group of companies are all also collectively referred to as "The Bharti Group".
The trademark BHARTI was first adopted by the Bharti Group in 1976 when Mr. Sunil Bharti Mittal and his family founded the group's predecessor firm, Bharti Overseas Trading Company. The trademark BHARTI has been used continuously and exclusively by the Bharti Group from the date of adoption until now. Since inception, the trademark BHARTI has been featured as the corporate name and umbrella trademark of the Bharti Group and is one of the well-respected business houses in India today.
The Complainant No. 1 is the owner of the trademark BHARTI. It derives its identity from the erstwhile partnership firm known as Bharti Overseas Trading Company that was established in 1976. The firm then changed its name to Bharti Enterprises before converting into a private limited company on January 18, 2010 under Indian laws with the name Bharti Enterprises (Holding) Private Limited i.e., the Complainant No. 1.
The Complainant No. 2 is Bharti Group's flagship company, Bharti Airtel Limited and owns the trademark AIRTEL. Previously known as Bharti Tele-Ventures Ltd., it is one of the top telecom companies in the world and is amongst the top four wireless telecom operators in the world and a recognized blue chip company. It is one of the India's leading telecommunications service providers with an aggregate customer base of over 269 million as on March 31, 2013, consisting of GSM mobile and broadband and telephone customers.
The Complainants operations under the BHARTI and AIRTEL brands span 20 countries across Asia and Africa – India, Sri Lanka, Bangladesh, Seychelles, Burkina Faso, Chad, Democratic Republic of the Congo, Gabon, Ghana, Kenya, Madagascar, Malawi, Niger, Nigeria, Rwanda, Sierra Leone, the United Republic of Tanzania, Uganda, and Zambia. In addition, the Bharti Group also has mobile operations in Jersey and Guernsey.
Bharti Group has been involved in diversified businesses from manufacturing bicycles, to telecom, insurance and now into emerging business areas in the fast growing reality and retail sectors in India. Bharti Group has partnered with some of the biggest Corporate houses around the world such as Walmart in the retail business; SingTel, Qatar Foundation Endowment, IBM, Ericsson, Nokia, Siemens and Alcatel-Lucent in the telecom business; AXA in the insurance business; and Del Monte Pacific in the foods businesses to provide products and services in India, Asia and abroad. Most of the group companies in the Complainants Group use the mark BHARTI in their corporate name, including its subsidiaries and joint venture companies.
The Complainant claims that the trademark BHARTI is synonymous with the Bharti Group and its businesses across the globe and has acquired immense reputation and goodwill over the last 38 years of its use. Consumers around the world, particularly in Asia and Africa, exclusively associate the Mark with the Bharti Group and specific business such as telecom, insurance etc., under the Mark BHARTI along with its group of companies such as the Complainant No. 2 herein. The degree of recognition and association of the word "Bharti" with the Complainant and the Bharti Group is evidenced by the fact that a Google search for "Bharti" predominantly reveals links to the Complainant and the Bharti Group.
The Complainant further claims that it spends millions of dollars each year to promote and advertise the Mark around the world. The Complainant No. 2 is a regular sponsor of cricket matches in India that are watched by over a billion people around the world; have entered into sponsorship deals with world famous soccer clubs like Manchester United; and are also official sponsors for Formula 1 racing. The Complainant's activities establish the immense reputation and recognition of the Mark around the world. The Complainant's extensive global advertising, marketing and use of the Mark establishes its worldwide reputation and goodwill under common law.
The Bharti Group has also acquired statutory rights in the Mark through registration of the trademark BHARTI in India in the Complainants name since 2001.
The Complainant No. 1 is also the registered proprietor of the Mark BHARTI in various countries like Madagascar, Mozambique, Kenya, Sri Lanka, South Africa, Zambia, Nigeria, the African Intellectual Property Organization ("OAPI") member countries and Ethiopia. The Complainant No. 1 owns and the Complainant No. 2 owns the domain name and also owns several other domain names. B. Respondent
The Respondent in its Response dated February 21, 2015 submits:
1. That on December 3, 2014, received a telephone call from a mobile number, from a person introducing herself as Ms. Sharma and requested to make a website under the name "Bharti Finance L" as the domain name was available on Godaddy. The consolidated expenses for the said purposes was decided to be INR 5,000.
2. That Ms. Sharma paid the said amount to the Respondent and accordingly, the Respondent prepared the said website without knowing the bad intention of Ms. Sharma in respect of misusing the same under the name of Bharti Airtel.
3. That on December 12, 2014, the Respondent delivered all the access of the said website to Ms. Sharma and thereafter the Respondent had nothing concerned from it.
4. That on January 12, 2015, the Respondent was shocked and surprised, after receipt of a notice from the advocate of Bharti Airtel Company, who requested the Respondent to stop all the access of the said website/domain and accordingly the Respondent complied with the said demand within 24 hours and the said fact was duly communicated to the advocate through email.
5. That in view of above, the aforesaid act was done by the Respondent during her regular course of practice and was neither intentional nor deliberate.
6. That the Respondent sought indulgence that her name may be dropped from the complaint and if any assistance from her side was required she would be pleased to furnish the same. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name incorporates the mark BHARTI of the Complainant in its entirety.
The Complaint by way of annexure to the Complaint has submitted the registration details for the mark BHARTI (label) and its variants thereof.
The trademark BHARTI (label) has been registered in the name of Bharti Tele-Venture Ltd. Qutub Ambience, Indian, in class 9 on February 28, 2001 under No. 993494.
The trademark BHARTI (Device label) has been registered in the name of Bharti Tele-Venture Ltd. Qutub Ambience, in class 16 on February 28, 2001 under no. 993498.
The trademark BHARTI (Device) has been registered in the name of Bharti Tele-Venture Ltd. Qutub Ambience, in class 16 on February 28, 2001 under no. 993499.
The trademark BHARTI INDIAN ONE has been registered in the name of Bharti Tele-Venture Ltd. Qutub Ambience, in class 9 on October 22, 2001 under no. 1053853.
The trademark BHARTI INDIAN ONE has been registered in the name of Bharti Tele-Venture Ltd. Qutub Ambience, in class 16 on October 22, 2001 under no. 1053854.
The trademark BHARTI LIFE has been registered in the name of Bharti Tele-Venture Ltd. Qutub Ambience, in class 16 on April 18, 2002 under no. 1096479.
The trademark BHARTI has been registered in the name of Bharti Tele-Venture Ltd. Qutub Ambience, in class 38 on December 18, 2003 under no. 1256049.
The trademark BHARTI LIVE has been registered in the name of Bharti Overseas Trading Company, Qutub Ambience, in class 38 on June 21, 2004 under no. 1291327.
The trademark BHARTI (Device) has been registered in the name of Bharti Enterprises (Holding) Private Limited in class 36 on August 21, 2007 under no. 1593232.
The trademark BHARTI (Word) has been registered in the name of Bharti Enterprises (Holding) Private Limited in class 42 on November 21, 2007 under no. 1623144.
The Respondent has not disputed the rights of the Complainant in the mark BHARTI as alleged by the Complainant.
The Panel is satisfied that the Complainant has rights in the mark BHARTI in view of the registration and use of the Mark evidenced by the documents provided by the Complainant with its Complaint before this Panel.
In view thereof, this Panel is satisfied that the disputed domain name is identical or confusingly similar to the trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Complainant alleged that the Respondent does not have any rights or legitimate interests in the disputed domain name.
The Complainant submits that the disputed domain name resolves to an active website pre-dominantly featuring the marks of the Complainant Bharti's Airtel and have submitted the screenshots with its Complaint.
The Complainant further submits that the Respondent has attracted customers and dishonestly taken money from innocent persons by using the well-known mark BHARTI of the Complainant.
The Complainant has annexed email correspondence dated January 5, 2015 wherein a customer was approached by the Respondent for loan alleging to be part of the Bharti Group.
The Complainant submits that the Respondent is neither affiliated with the Bharti Group nor has the Complainant authorized or licensed the Respondent to use the disputed domain name incorporating the well-known mark of the Complainant.
The Respondent by its email of February 21, 2015 submitted before this Panel that she has developed the website for Ms. Sharma to be hosted on the disputed domain name for consolidate expense of INR 5,000.
She further submitted that on December 12, 2014 she gave all the access of the website to Ms. Sharma.
The Panel finds that the evidence provided by the Complainant clearly establishes that the disputed domain name has been registered to misleadingly divert consumers to the website at the disputed domain name for commercial gain.
The Respondent has not provided any evidence to support her claims that she has acted in the capacity of service provider and that the actual owner of the disputed domain name is different from the one listed in the WhoIs records.
In view thereof, the Panel is satisfied that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The Complainant claims that on January 5, 2015 it received a call from Ms. S. Nadella ("Victim") residing at Pondicherry, that she had been approached by one M/s. Bharti Finance Limited to provide loan against her property. The said company on the pretext of being associated with Complainant convinced the Victim to transfer a total amount of INR 2,95,500 as service charges for processing loan, in three parts i.e.,INR1,80,000,INR 93,000 and INR 22,500. The Complainant was further informed that the said company is now pressurizing the Victim to pay an additional amount of 3.5% of loan as tax, amounting to approximately INR 7 Lakhs.
The said Victim was informed by the Complainant that neither the Complainant nor its group of companies are engaged in the business of providing loans as portrayed to the Victim. Thereafter, the Victim provided the website of Bharti Finance Limited; "www."wherein the office address of the said company in India was similar to one of the Complainant's Gurgaon branch office.
On accessing the website "www.", the Complainant found that Ms. Bharti Finance Limited is using identical trademark and logos of various group companies of the Complainant.
The Complainant upon checking the details of the owner of the disputed domain name has found that the disputed domain name has been registered in the name of the Respondent. On the website Ms. Bharti Finance Limited has given numbers that do not appear to be correct.
The Complainants submits that the said company has made misleading and/or false statements on its website such as:
- That M/s. Bharti Finance Limited has been incorporated by the founder of Bharti Group in 1997 Mr. Sunil Bharti Mittal;
- That M/s. Bharti Finance Limited is related to the Complainant and its group of companies;
- That M/s. Bharti Finance Limited is one of India's most reputed Non-Banking Finance Company (NBFC) registered with Reserve Bank of India (RBI);
- That M/s. Bharti Finance Limited is ISO 9001:2008 certified across all its core functional processes in March, 2013 by BSI, a leading global independent Business Services Organization;
- That M/s. Bharti Finance Limited is one of the leading wealth management, capital market and advisory companies in India.
- That M/s. Bharti Finance Limited is an investment bank and is a leading trader and underwriter of securities across a broad range of asset classes and serves as a strategic advisor to corporations, governments, institutions and individuals;
- That by using the names, trademarks, logos and addresses of the Complainant's group of companies is claiming association with the Complainant and its group companies.
The Complainant further submits that on checking the online records of the Registrar of Companies in India has found that there is no company registered in the name and style of M/s. Bharti Finance Limited.
The Complainant has provided enough evidence before this Panel which establishes that the Respondent has been operating the disputed domain name with a view to intentionally attracting, for commercial gain, Internet users to her website, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or of a product or service on Respondent's website.
The Panel finds that said acts of the Respondent are evidence of bad faith registration and use. In view thereof the Panel is satisfied that the disputed domain name has been registered and is being used by the Respondent in bad faith. 7. Decision
For 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, Bharti Enterprises (Holding) Private Limited.
Amarjit Singh
Sole Panelist
Date: March 11, 2015
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