The Complainant is Bigfoot Ventures LLC of New York, New York, United States of America ("United States"), represented by Morton & Associates LLLP, United States.
The Respondent is Shaun Driessen of The Hague, Netherlands. 2. The Domain Name and Registrar
The disputed domain name, (the "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 June 30, 2016. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 1, 2016, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent's 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 5, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 25, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 26, 2016.
The Center appointed Tony Willoughby as the sole panelist in this matter on August 5, 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
The Complainant is the registered proprietor of Benelux Trade Mark Registration No. 0764820 BUBBLING BEATS (words) registered on April 11, 2005 for goods and services in classes 9, 16 and 41.
The Domain Name was registered on January 22, 2016 and connected to a webpage containing the messages "website coming soon" and "Please check back soon to see if the site is available". 5. Parties' Contentions A. Complainant
The Complainant contends that the Domain Name is identical and confusingly similar to its 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 that:
(i) The Domain Name is identical or confusingly similar to a trademark 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 has been registered and is being used in bad faith. B. Identical or Confusingly Similar
The Domain Name comprises the Complainant's registered trade mark BUBBLING BEATS (absent the space) and the ".com" generic Top-Level Domain identifier, which may be ignored for the purpose of the paragraph 4(a)(i) assessment as to identity and confusing similarity.
The Panel finds that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights. C. Rights or Legitimate Interests
The Complainant asserts that its "Bubbling Beats" brand is unique and states that it has never granted the Respondent any permission to use its trade mark nor has it ever had any association with the Respondent. It asserts that that the Respondent cannot have any rights in respect of the Domain Name. It asserts that the Domain Name has been parked ever since registration and there is no evidence of the Respondent ever having made any use of the name "Bubbling Beats" or anything like it.
Certainly there is nothing before the Panel to suggest that the Respondent might have rights or legitimate interests in respect of the Domain Name. The Respondent had the opportunity of coming forward with an explanation, but elected not to take up that opportunity.
In the absence of anything from the Respondent the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. D. Registered and Used in Bad Faith
In the absence of any evidence that the Respondent has made any active use of the Domain Name the Complainant is left to speculate. It states: "Upon information and belief, Respondent had prior knowledge of the Mark and its accumulated goodwill, due to the Mark's extensive advertising and commercial use across the global marketplace." From that position it contends that: "It follows, therefore, that Respondent illegitimately sought to capitalize on the goodwill of the Mark, acquired through years of continuous and systematic commercial use, by registering a Domain Name that was identical to the Complainant's Mark". It adds that there is no legitimate way in which the Respondent could use the Domain Name if it ever sought to do so.
A problem for the Complainant is that although it refers to its "accumulated goodwill" and its "extensive advertising and commercial use across the global marketplace", it has produced no evidence of any of it. The annexes to the Complaint consist of no more than a print-out from the Registrar's WhoIs database, the Registration Agreement, the Policy, the Complainant's Benelux trade mark registration certificate and a screenshot of the Respondent's parking page. There are no sales figures, no advertising figures, no examples of the Complainant's advertising, no press cuttings. In short, apart from bare assertions, there is nothing before the Panel to demonstrate that the Complainant has ever conducted any trade. Indeed, the only indication that the Panel has as to the Complainant's possible area of business are the goods and services covered by the Complainant's trade mark registration, which have been translated as "sound carriers", "printed matter" and "entertainment called artwork activities (recreation and culture) [sic]; published in electronic or printed form".
The Panel considered whether or not to issue a procedural order under paragraph 12 of the Rules to enable the Complainant to remedy the defects in the Complaint, but elected not to do so, there now being a substantial line of cases indicating that to do so "would not be in line with the spirit of expediency and efficiency suggested in the Policy." (Tufco Technologies, Inc., Tufco LP, Hamco Manufacturing and Distributing LLC v. Hamco Alabama LLC,WIPO Case No. D2011-1451). As the panel put it in Robert Kennedy College v. Domain Name Proxy Service, Inc.,WIPO Case No. D2014-0031:
"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)."
The Panel also considered making a finding of Reverse Domain Name Hijacking which is defined in paragraph 1 of the Rules as "using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name." The basis for such a finding would have been that, on the evidence filed, the Complainant should have known that the Complaint never stood a chance of success. The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition puts it thus in paragraph 4.17:
"WIPO panels have found Reverse Domain Name Hijacking in circumstances including where: the complainant in fact knew or clearly should have known at the time that it filed the complaint that it could not prove one of the essential elements required by the UDRP."
Here, the Complainant should have known that on bare assertions its contentions under paragraph 4(a)(iii) of the Policy must fail.
However, the Complainant's trade mark is unusual and its trade mark registration covers the Netherlands, the home jurisdiction of the Respondent. It is not inconceivable that the Complainant could have supported its bare assertions (and here the relevant assertions relate solely to the Complainant's own business activities) with evidence. If it had done so, the Complaint might well have succeeded. The Panel is not persuaded that the Complaint was filed in bad faith. The Panel further notes that the launching of this proceeding does not appear to have involved the Respondent in any trouble or expense. 7. Decision
For the foregoing reasons, the Complaint is denied.
Tony Willoughby
Sole Panelist
Date: August 6, 2016
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