The Complainant is Bharti Airtel Limited of New Delhi, India, represented by Inttl Advocare, India.
The Respondent is Mr. Kannadhasan Krishnan of Kallakurichi, Tamil Nadu, 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 March 26, 2018. On March 26, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 27, 2018, 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 Complainant filed an amended Complaint on April 3, 2018, to correct an administrative formality.
The Center verified that the Complaint together with the amended 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 April 5, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 25, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 26, 2018.
The Center appointed Harini Narayanswamy as the sole panelist in this matter on May 18, 2018. 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 a leading telecommunication service provider and its business is associated with its flagship trademark AIRTEL. The Complainant owns many registered AIRTEL trademarks and AIRTEL formative marks in India. Some of these are:
Registration Number
Trade Mark
Class
Registered with Effect From
828306
AIRTEL GOOD MORNING DELHI
9
November 19, 1998
896532
AIRTEL SMARTNET
9
July 1, 2000
904078
AIRTELINK
9
February 17, 2000
934131
AIRTEL SMART NET
9
June 23, 2000
954260
AIRTEL DIRECT
9
September 8, 2000
1256043
AIRTEL
38
December 18, 2003
1401344
AIRTEL3G
9
November 25 , 2005
1401346
AIRTELTHREE
9
November 25 , 2005
1491630
AIRTEL MUSIC SEARCH
38
September 27, 2006
1623142
AIRTEL
41
November 21, 2007
2022313
airtel (with device)
38
September 14, 2010
2022314
airtel (with device)
41
September 14, 2010
The Complainant's international registered AIRTEL trademarks are:
Registration Number
Trade Mark
Class
Jurisdiction
Registered with Effect From
3625337
AIRTEL
38
United States of America
May 26, 2009
006545362
AIRTEL
38, 41, 42
European Union
April 15, 2008
301030922
AIRTEL (logo)
38
Hong Kong
January 14, 2008
T080242E
AIRTEL (logo)
38
Singapore
February 20, 2008
41687
AIRTEL (logo)
38
Ghana
October 22, 2010
0069547
AIRTEL (logo)
36, 38
Kenya
October 25, 2010
01822
AIRTEL (logo)
9, 25
Malawi
October 22, 2010
19056
AIRTEL
8
Sierra Leone
April 8, 2010
542
AIRTEL (logo)
38
United Republic of Tanzania
November 26, 2010
1958
AIRTEL (logo)
38
Zambia
October 22, 2010
65073
AIRTEL
38
OAPI
July 6, 2010
11939
AIRTEL (logo)
38
Madagascar
August 16, 2011
The Complainant has pending applications in India for the following trademarks:
Application Number
Trade Mark / Logo
Class
3745170
AIRTEL INTERNET TV
09, 38
1931419
AIRTEL WORLD SIM
38
2358782
AIRTEL DIGITAL TV (device)
41
2358777
AIRTEL DIGITAL TV (device)
38
2358779
AIRTEL DIGITAL TV HD (device)
38
2358784
AIRTEL DIGITAL TV HD (device)
41
The Respondent registered the disputed domain name on May 15, 2017. The disputed domain name resolves to a landing page provided by the Registrar. 5. Parties' Contentions A. Complainant
The Complainant states that it has over 379 million customers as of June 2017 and is ranked among the top three mobile service providers globally, in terms of subscribers. The Complainant states its services are available in 16 countries across Asia and Africa. Its product offerings in India include 2G, 3G and 4G wireless services, mobile commerce, fixed line services, high speed DSL broadband, Internet Protocol television, Direct-to-Home television and enterprise services. In other territories it offers 2G, 3G and 4G wireless services and mobile commerce.
The Complainant states that the AIRTEL mark was conceived, invented, coined and adopted in the year in 1994. The Complainant argues that its mark is not a dictionary word but is a coined term, therefore the AIRTEL mark is entitled to a high degree of protection. The Complainant states it has spent extensively on marketing, advertising and promoting its mark. Due to the quality of its services, the Complainant states that its mark has gained goodwill and reputation in India and across the globe. As the mark is distinctive of its services, the Complainant claims both statutory and common law rights in the AIRTEL mark.
The Complainant states that it has from time to time taken legal action for protecting the AIRTEL mark and has provided details of some previous court actions and civil suits that it had initiated with respect to its trademarks. The Complainant states it has also filed UDRP cases to protect its mark, among these are Bharti Airtel Limited, Body Corporate v. Ramandeep Singh, USA Webhost, Inc.,WIPO Case No. D2010-0524, pertaining to the domain name , andWIPO Case No. D2013-1638 pertaining to the domain names , , and , where the proceedings were terminated due to the respondent in that case agreeing to transfer the disputed domain names to the Complainant.
The Complainant states that Airtel Internet TV was launched on April 12, 2017. Airtel Internet TV is India's first hybrid set top box powered by Android. It allows customers access to 500 satellite television channels and Airtel IPTV delivers television content through the Internet. The Complainant states that AIRTEL INTERNET TV has been extensively promoted since its launch. On coming to know of registration of the disputed domain name, the Complainant states that it sent two notices to the Respondent on February 14, 2018 and on February 20, 2018, to which there have been no replies. As the disputed domain name was registered about a month after the launch of AIRTEL INTERNET TV, the Complainant alleges that it was registered with an intention of deriving gain from the goodwill associated with the Complainant's mark.
The Complainant requests for transfer of the disputed domain name based on the three elements of the Policy, paragraph 4 (a): that the disputed domain name is identical or confusing similar to a mark in which the Complainant has rights, the Respondent has no rights or legitimate interests in the disputed domain name, and the disputed domain name has been registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
It is an essential requirement for a complainant to establish three elements under paragraph 4(a) of the Policy to obtain the transfer of the disputed domain name, in seriatim these are:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent lacks rights or legitimate interests in the disputed domain name; and
(iii) The disputed domain name was registered and is being used in bad faith by the Respondent. A. Identical or Confusingly Similar
The first element requires the Complainant to establish the disputed domain name is identical or confusingly similar to a trademark or a service mark in which it has rights.
Evidence of ownership of a registered trademark is considered sufficient evidence of a complainant's requisite rights in the trademark for purposes of paragraph 4(a)(i) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.2.1. The Complainant has provided details of ownership of its registered AIRTEL marks in India and in several other jurisdictions and has thereby established its rights in the mark.
The disputed domain name contains the entire AIRTEL mark with the terms "internet" and "tv". It has been consistently held by numerous UDRP panels that a disputed domain name which combines a trademark with additional terms would not prevent a finding of confusing similarity, see section 1.8 of the WIPO Overview 3.0. The Complainant's AIRTEL trademark being clearly recognizable in the disputed domain name, it is found that the disputed domain name is confusingly similar to the AIRTEL mark.
The Complainant has therefore successfully established the first requirement under paragraph 4(a) of the Policy, that the disputed domain name is confusingly similar to a mark in which the Complainant has rights. B. Rights or Legitimate Interests
The second element under paragraph 4(a) of the Policy requires the Complainant to make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Complainant has submitted that the Respondent lacks rights and legitimate interests in the disputed domain name. In support of its contention the Complainant has argued that: The Respondent is intentionally attempting to attack internet users to its website by creating a likelihood of confusion with the Complainant's mark. The provisions under paragraph 4(c) of the Policy are not applicable to the Respondent or the disputed domain name registration. The disputed domain name resolves to an inactive website and the content on the landing webpage tries to portray a false nexus between the Complainant and the Respondent.
The Complainant has additionally submitted that the disputed domain name has been offered for sale by the Respondent, and a link has been provided for this purpose. The Complainant asserts that the Respondent has no business connection with the Complainant or any authorization or consent to use the Complainant's AIRTEL mark in the disputed domain name or in any other manner. The Complainant has submitted that the Respondent has registered the disputed domain name for purposes of wrongful gains and for misleading and diverting customers looking for Complainant online, which amounts to cybersquatting.
The Respondent did not file a response in these proceedings. The Complainant's allegations therefore have not been contradicted or refuted by the Respondent. The Panel finds there is no evidence that the Respondent is commonly known by the disputed domain or is using the disputed domain name for a bona fide offering of goods or services. The Panel finds the Respondent has no authorization from the Complainant to use the AIRTEL trademark, which is widely associated with the Complainant and its business. In the Panel's assessment, based on the facts and circumstances discussed, there appears to be no reasonable explanation or rationale for the Respondent to register the disputed domain name except to gain from the Complainant's mark.
Based on the unrebutted submissions made by the Complainant, the Panel does not consider such use of the disputed domain name to amount to a bona fide use under the Policy and does not give rise to rights or legitimate interests in favor of the Respondent.
Accordingly, it is found that the Complainant has successfully made an unrebutted prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name and that the second element of paragraph 4(a) of the Policy is satisfied. C. Registered and Used in Bad Faith
The third element requires the Complainant to establish the disputed domain name has been registered and is being used in bad faith by the Respondent.
Bad faith registration of the disputed domain name can be inferred from the fame associated with the mark in question. The Complainant has adduced evidence to establish that it is a leading telecommunications service provider and the AIRTEL mark is widely known, recognized and associated with the Complainant. It is therefore unlikely that the Respondent, who is a resident in India, could be unaware of Complainant's rights in the AIRTEL mark when the Respondent registered the disputed domain name.
The Panel notes that the Complainant has submitted that the Respondent has offered the disputed domain for sale. In an email communication dated April 26, 2018 to the Center, the Complainant has mentioned the Respondent had demanded INR 2,000 for the transfer of the disputed domain name. There is no evidence on record to support the Complainant's contention, therefore the Panel does not make a finding on this submission made by the Complainant, however the Panel notes that the website at the disputed domain name provides a link at which the disputed domain name may be purchased.
The Panel however notes that the disputed domain name was registered by the Respondent close to the date of launch of Airtel Internet TV by the Complainant. This gives rise to the inference that the disputed domain name ought to have been registered in anticipation of the Complainant's new product offering. The Panel finds that the Complainant has made trademark applications for AIRTEL INTERNET TV, AIRTEL WORLD SIM, and AIRTEL DIGITAL TV that are still pending and unregistered. Nevertheless, bad faith can be found in circumstances where a respondent's intention in registering the disputed domain name appears to be motivated for purpose of unfairly taking advantage of a complainant's nascent (typically as yet unregistered) trademark rights. See WIPO Overview 3.0, section 3.8.2.
As discussed in the previous section, it is likely to be widely assumed by the public and Internet users that the disputed domain name containing the Complainant's AIRTEL trademark is associated with the Complainant or is sponsored, affiliated with or endorsed by the Complainant. Such registration and use of the disputed domain name by the Respondent, who is not the legitimate owner of the trademark, is recognized as bad faith registration and use of the disputed domain name under the Policy by both creating a misleading impression of association between the disputed domain name and the Complainant, and by attempting to profit from the sale of the disputed domain name by its hosting for sale at the website to which the disputed domain name resolves. The Panel finds that the Respondent, by registering the disputed domain name, has tried to exploit the goodwill associated with the AIRTEL mark and for capitalizing on the launch of a new line of business associated with the mark.
The Panel finds that the Complainant has successfully established the third element under paragraph 4(a) of the Policy, that the disputed domain name was registered and is being used 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.
Harini Narayanswamy
Sole Panelist
Date: May 25, 2018
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