1.1 The Complainant is Ezeego One Tour & Travels Ltd. of Mumbai, India, represented internally.
1.2 The Respondents is B Concept Media Entertainment Group Co. Limited of Bangkok, Thailand, represented internally. 2. The Domain Name and Registrar
2.1 The disputed domain Name (the "Domain Name") is registered with GoD, LLC (the "Registrar"). 3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 5, 2016. At that time the publically-available WhoIs details for the Domain Name recorded the Registrar's privacy service as the registrant of the Domain Name, but the Complaint named both the privacy service and B Concept Media Entertainment Group Co Limited as Respondents in these proceedings.
3.2 On February 5, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 5, 2016, the Registrar transmitted by email to the Center its verification response confirming that B Concept Media Entertainment Group Co Limited was the underlying registrant behind the privacy service and providing contact details.
3.3 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").
3.4 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 16, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 7, 2016. By request of the Respondent on March 7, 2016, an automatic extension of the Response due date was granted until March 11, 2016. The Response was filed with the Center on March 11, 2016.
3.5 The Center appointed Matthew S. Harris as the sole panelist in this matter on March 18, 2016. 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
4.1 The Complainant is a company incorporated in India in January 2006 under the name Ezeego One Travels Private Limited and based in Mumbai. It operates an online travel portal that offers flight bookings, online hotel reservations, holidays and package tours, and various travel related services car rentals, train ticket booking, bus tickets, cruises and allied services. These services are offered from various websites, but these include the website operating from the domain name and under the name "Ezeego1". This website has been used by the Complainant's business since the date of the Complainant's incorporation.
4.2 The Complainant is the owner of various trade marks that comprise of incorporate the terms "ezee", "ezeego", "easygo1" and "ezeego1". As far as the Panel can tell these terms in all of these marks are in stylized lettering. They include, for example, Indian registered trade mark number 687818 with an application date of June 8, 2006 in class 39 that takes the following form:
4.3 In addition to the website operating from the domain name , the Complainant is the owner of a large number (it would appear in excess of 100) of domain names which commence either with "easy" or "eezee". However, exactly when these have been acquired and how they have been used since acquisition is not clear from the evidence submitted by the Complainant.
4.4 The Complainant's business is a substantial one, with a turnover of "several hundreds of crores". It has also devoted significant sums of money to advertising and marketing its services, although (as is explained in greater detail later on in this decision), there appears to have been a very significant increase in this expenditure in 2013.
4.5 The Domain Name was registered on August 31, 2010.
4.6 The Respondent would appear to be based in Thailand. It has used the Domain Name for a website that offers for sale holidays primarily in Thailand but also various other countries in Asia.
4.7 On August 19, 2015, the Complainant's lawyers sent a "cease and desist notice" to the Respondent by registered airmail and by email. In that letter the Complainant, among other things, demanded that the Domain Name be transferred to the Complainant. There was no response to that letter and the hard copy for some reason was returned to the Complainant although it was sent to the Respondent's courier address provided by the Registrar. 5. Parties' Contentions A. Complainant
5.1 The Complainant provides details of its business and trade marks. In addition to a large number of Indian trade marks it refers to various marks which it describes as "international". As far as the Panel can tell, these are in fact four marks that have been registered in Bahrain.
5.2 The Complainant provides evidence of its newspaper marketing activities, but this appears to be limited to publications in India. The earliest of these advertisements is dated 2008. In all of these advertisements, the Complainant refers to itself as "essego1" or uses a mark that comprises the stylized portrayal of the text stylized version of the text "" with the space in the letter "o" in "ezeego" taking the form of the number "1".
5.3 The Complainant contends that the Respondent:
"has intentionally and fraudulently chosen the impugned domain name/ website www., to trade upon and take undue advantage of the Complainant's said trade marks and aforesaid domain name/ website www.."
5.4 It further claims that the Domain Name and its trade marks are "closely and deceptively similar" and relies upon a passage from an Indian trade mark law text book in this respect.
5.5 It asserts that the Respondent has no right or legitimate interest in the Domain Name and that the Domain Name has been registered and used in bad faith. In this respect it contends that the Domain Name has been registered and used so as to mislead and divert customers from the Complainant's domain name and website. B. Respondent
5.6 The Response is in places hard to follow and it may be that it was prepared by someone for whom English is not a first language.
5.7 However, the Respondent asserts that the Complainant's trade marks have been registered in India. It also makes a complaint that certain translations of the Complainant's marks have not been certified. This appears to be a reference to the Complainant's Bahraini marks.
5.8 The Respondent appears to accept that "Ezeego One is advertised across all media and significant investments have been made in promoting this name". However, this is said to demonstrate a "clear choice" on the part of the complainant to promote "Ezeego One" as the name of the Complainant's business rather than "Ezeego" alone.
5.9 The Respondent contends that the Complainant's business is focused on India with 92 per cent of the traffic from the domain name registered by the Complainant coming from that country. In contrast, the Respondent's website is said not to be directed to Indian customers or to provide services in India.
5.10 The Response also contains the statement that "collaboration opportunities might exist in the near future". Presumably this is a reference to some sort of collaboration between the Complainant and the Respondent.
5.11 The Respondent further claims that the Complainant has recently made changes to the way in which its various domain names operate, which is alleged to involve an act of bad faith on the Complainant. But what these changes are and why they are alleged to be in bad faith is not explained.
5.12 The Respondent's explanation as to why it has not previously to correspondence from the Complainant appears to be as follows:
"Any prior correspondence to this date has not been received for unclarified reasons as it might have been sent to a general inbox"
5.13 The Response does not comply with the requirements of paragraph 5(c) of the Rules. It does not for example, contain the certificate of truth required by paragraph 5(c)(viii) of the Rules. 6. Discussion and Findings
6.1 The Complainant must make out his case in all respects under paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (Policy, paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (Policy, paragraph 4(a)(ii)); and
(iii) the Domain Name has been registered and is being used in bad faith (Policy, paragraph 4(a)(iii)). A. Identical or Confusingly Similar
6.2 There are various trade mark rights that are relied upon by the Complainant that take various forms. Of these the mark that is perhaps most similar to the Domain Name is the Complainant's mark for the stylized text "".
6.3 In the opinion of the Panel the fact that this mark takes the form of stylized text is something that needs to be taken into account when considering whether there is confusing similarity between the mark and the Domain Name. Further, it appears obvious to the Panel that both "ezy-go" in the Domain Name and "ezeego" in the relevant marks would be understood as referring to, and pronounced as, the English word "easy" in combination with the word "go". This is also something that the Panel considers it to be appropriate to take into account when conducting the relevant comparison.
6.4 However, the Respondent does not allege that the "ezeego" elements of the Complainant's marks are so devoid of distinctive character that they are incapable of distinguishing the Complainant's goods or services (as to which see for example S FZ LLC v. Benny Bertelsen, Advanced Digital Solutions,WIPO Case No. D2015-2261).
6.5 Further, the similarities between this aspect of the marks relied upon and the Domain Name are such that bearing in mind that paragraph 4(a)(i) of the Policy is generally considered to involve a threshold standing requirement (see paragraph 1.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0")), the Panel concludes that the marks and the Domain Name are confusingly similar for the purposes of the Policy.
6.6 In the circumstances the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
6.7 Given the Panel's findings so far as bad faith is concerned below, it is not necessary to consider the issue of rights or legitimate interests. C. Registered and Used in Bad Faith
6.8 The Panel has not found this case easy to decide. There are aspects of the way the Respondent has expressed itself in the Response that the Panel has found troubling. As this decision already records, the Response in this case was procedurally deficient and did not contain the certificate of truth required by paragraph 5(c)(vii) of the Rules. This is not a trivial matter (see for example, Privatbrauerei Eichbaum GmbH & Co. KG v. Hamit Karaca,WIPO Case No. D2010-0258) and therefore the Panel is not prepared to give much evidential weight to assertions of fact to be found in this document.
6.9 Further, the Respondent fails to directly address the key allegation levelled against it in the Complaint; namely that the Domain Name was registered and has been used because of its associations with the Complainant's mark and in order to divert persons to its website. In many cases this Panel has found that a failure to address the key question of why a Domain Name was chosen and has been used is of itself evidence that this registration and use was in bad faith (see for example Nexans S.A. v. Mr. Edip Özdemir / MXN Kablo San. Tic. Ltd. Sti.,WIPO Case No. D2015-1056).
6.10 Further, the reasons offered as to why the Respondent has not previously received communications are wholly inadequate. The difficulties of corresponding with the Respondent are not just ones that were faced by the Complainant. In particular, the Panel notes that hard copies of the Complaint forwarded by the Center to the Respondent could not be delivered to the address provided by the Registrar.
6.11 Next, there is the unfortunate suggestion in the Response that the parties might want to enter into some form of collaborative arrangement. The Panel wonders whether this is of itself suggestive that the Respondent is now seeking to gain some advantage from a similarity between the Domain Name and the Complainant's name.
6.12 However, the problem that the Panel faces is that, although the Respondent has at times done itself no favours, ultimately it is the Complainant that bears the burden of proof and it must show that the Domain Name has been both registered and used in bad faith. With this in mind the Panel has ultimately reached the conclusion that the Complainant has failed to demonstrate on the balance of probabilities that the Domain Name registered in bad faith.
6.13 The reasons for this are as follows:
(i) The Domain Name was initially registered in August 2010.
(ii) There seems to be no dispute that the Respondent has at least for a number of years used the Domain Name for some business based in Thailand. The Complainant also does not claim that the Domain Name was acquired by the Respondent later than its date of initial registration.
(ii) As far as the Panel can tell, the name that the Complainant has actually used in its business is "ezeego1". As this Panel has already stated in this decision, "ezeego" is likely to be read as a misspelling of the English words "easy go". The same is true of the "Ezy-go" name chosen by the Respondent. This is not a completely unnatural name to use in connection with a travel business. Therefore, this is not a case where the choice of Domain Name alone provides evidence that the Respondent chose the Domain Name with knowledge of and with the intent to take unfair advantage of similarities between the Domain Name and the Complainant's business name and marks.
(iii) Further the material before the Panel is insufficient for the Panel to conclude that at the time the Domain Name was registered, the Complainant's business was so well known that the Respondent must have been aware of the Complainant and chose the Domain Name with the intent to take advantage of the fame and reputation of that business. In particular:
(a) All the marketing material that the Complainant has provided is limited to the Indian press.
(b) The Panel accepts that figures for marketing expenditure provided by the Complainant would suggest that very significant sums were been spent in this respect. For example, since 2013 the Complainant claims to have spent in excess of INR 1,000 Crores per annum in respect of these sorts of activities. However, prior to 2013 the expenditure appears to have been far more modest. For example, in the year 2009-10 (which either covers the time the Domain Name was registered or the year before) the expenditure was INR 6.36 Crores. Further, and in any event, there is no explanation of what this expenditure involved and, crucially how it is that this would have meant that it is likely that a travel business based in Thailand would have been aware of the Complainant's business under the "ezeego1" name at the time the Domain Name was registered.
(c) There is no evidence before the Panel to suggest that the Respondent's activities have been anything other than focused on Thailand. There is no suggestion that these activities have been directed to persons in India or that the Respondent has any particular connection with or knowledge of the Indian travel market.
(d) The only website activities in respect of which the Complainant has provided details are those that it has conducted from the domain name . As is apparent from the country code Top-Level Domain (ccTLD) ".in" element, this is an Indian domain name. It is far from obvious why a person choosing to register the Domain Name (which is a generic Top-Level Domain(gTLD) ".com"), would have come across or been familiar with the website operating from that Indian domain name in 2010. The Complainant has also provided a long list of other domain names owned by the Complainant, many of which include the gTLD ".com". But when the Complainant registered or acquired these and how and to what extent these domain names were being used at the time the Domain Name was registered in 2010, is neither explained nor evidenced. Therefore, the existence of these large number of domain name registrations does not suggest that the Respondent would have necessarily been aware of the Complainant at the time the Domain Name was registered.
6.14 In the circumstances, the Panel finds that the Complainant has failed to demonstrate that the Domain Name was registered in bad faith and, therefore, has not made out the requirements of paragraph 4(a)(iii) of the Policy. 7. Decision
7.1 For the foregoing reasons, the Complaint is denied.
Matthew S. Harris
Sole Panelist
Date: March 30, 2016
Full & Egal Universal Law Academy