The Complainant is Bharti Airtel Limited, India, represented by Inttl Advocare, India.
The Respondent is Kailash Purohit, India.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 18, 2021. On December 20, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 21, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 22, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed the first amended Complaint on December 22, 2021, and the second amended complaint on December 24, 2022.
The Center verified that the Complaint together with the amended Complaints 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 December 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 16, 2022.
On December 22, 2021, the Center received an information communication from the Respondent to which the Center acknowledged receipt. The Respondent did not submit any formal response. Accordingly, the Center notified the Parties of the Commencement of Panel Appointment Process on January 17, 2022.
The Center appointed Shwetasree Majumder as the sole panelist in this matter on January 27, 2022. 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 BackgroundThe Complainant is a telecom service provider engaged in telecommunication services. The Complainant is the registered owner, user, and proprietor of the mark AIRTEL in India as well as in several jurisdictions worldwide. Indian trademark registration number 648684, dated December 14, 1994, is the Complainant’s earliest registration for its mark AIRTEL.
The disputed domain name
The Complainant is one of the biggest telecom companies engaged in a variety of telecommunication services including broadband and internet services, under its mark AIRTEL. The Complainant contends that it conceived, invented, and coined the mark AIRTEL in the year 1994.
The Complainant’s mark AIRTEL and several AIRTEL formative marks are registered in India as well as in other jurisdictions. The Complainant’s earliest Indian registration number 648684 in respect of the mark AIRTEL dates back to December 14, 1994. The Complainant has filed copies of Indian trademark registration certificates for its mark AIRTEL along with the Complaint as Annex 7. The Complainant has registered various domain names incorporating its mark AIRTEL. WhoIs print outs of such registrations have been submitted as Annex 10 to the Complaint.
The Complainant has successfully protected its trademark rights in AIRTEL by way of lawsuits against third parties. The Complainant has submitted Annexes 12, 13, 14, 15, and 16 along with the Complaint which are copies of court orders in favour of the Complainant where domain names incorporating the mark AIRTEL where transferred to the Complainant. The Complainant has also relied on past UDRP panel decisions where its rights in the mark AIRTEL were recognised and its complaints were successful. Past UDRP panel decisions relied on by the Complainant have been submitted as Annexes 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27.
The Complainant argues that the disputed domain name uses its mark AIRTEL in its entirety and hence is identical and confusingly similar to the Complainant’s mark AIRTEL. The Complainant argues that the only reason for incorporating “cs” in the disputed domain name is to create an impression that the disputed domain name is part of the customer service of the Complainant, which is not the case. The Complainant argues that the Respondent has no legitimate rights in the disputed domain name and has registered it with the intent for wrongful commercial gain and to misleadingly divert consumers who are looking to visit the Complainant’s website “www.airtel.in”. The Complainant argues the disputed domain name has been registered and is being used in bad faith.
B. RespondentThe Respondent did not formally reply to the Complainant’s contentions. However, the Center received an informal communication from the Respondent on December 22, 2021:
“Why i am getting this Email your end”.
6. Discussion and FindingsAs per paragraph 5(e) of the Rules where a Respondent does not submit a response, in the absence of exceptional circumstances, the panel may decide the dispute based upon the Complaint. The Panel does not find any exceptional circumstances in this case preventing it from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to file a response. As per paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the panel may draw such inferences as it considers appropriate. It remains incumbent on the Complainant to make out its case in all respects under paragraph 4(a) of the Policy.
Under paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements required under by a preponderance of evidence:
i. the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
ii. the Respondent has 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.
Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant has produced trademark registration certificates in India, and other jurisdictions, in respect of the mark AIRTEL. The disputed domain name incorporates the Complainant’s mark AIRTEL in its entirety, together with the term “cs”. Referring to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), sections 1.7 and 1.8, this Panel notes that where the relevant trademark is recognizable within the disputed domain name, the addition of other terms, even a meaningless term, would not prevent a finding of confusing similarity under the first element. In the present case, the Complainant’s mark AIRTEL is clearly recognizable in the disputed domain name and therefore the addition of “cs” does not prevent a finding of confusing similarity. (See Hoffmann-La Roche AG v. Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org / Conan Corrigan,WIPO Case No. D2015-2316).
The WIPO Overview 3.0, section 1.7, provides the consensus view of UDRP panels: “While each case is judged on its own merits, in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing”.
The generic Top-Level Domain (“gTLD”) “.com” is generally disregarded for the purposes of comparison under this element.
In view of the above-mentioned findings, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademarks and that the requirement of paragraph 4(a)(i) of the Policy stands satisfied.
B. Rights or Legitimate InterestsThe consensus view of the second element under paragraph 4(a) of the Policy requires the Complainant to establish on a prima facie basis that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel notes that the Complainant has already submitted evidence that it holds exclusive rights in the trademark AIRTEL by virtue of statutory registrations and by common law use, which rights have accrued in the Complainant’s favour. Furthermore, the use of the disputed domain name to resolve to a parked page displaying competing PPC links constitutes neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use in the present circumstances.
The view of previous UDRP panels on the burden of proof under paragraph 4(a)(ii) of the Policy has been summarized in section 2.1 of the WIPO Overview 3.0, which states: “While the overall burden of proof in UDRP proceedings is on the complainant, […] where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence to demonstrate its rights or legitimate interest in the domain name”.
The Respondent has failed to file a response to rebut the Complainant’s prima facie case or to advance any claim as to rights or legitimate interests in the disputed domain name (particularly, in accordance with paragraph 4(c) of the Policy). Accordingly, the Panel finds the Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithIn order to prevail, the Complainant must demonstrate that the disputed domain name has been registered and is being used in bad faith according to paragraph 4(a)(iii) of the Policy. Bad faith is understood to occur where a respondent takes unfair advantage of or otherwise abuses a complainant’s mark (see section 3.1 of the WIPO Overview 3.0).
The disputed domain name is a parked domain and resolves to PPC links which appear to be related to and competing with the Complainant’s business. Here, such conduct falls within the example of bad faith registration and use set out at paragraph 4(b)(iv) of the Policy namely that, by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website. Neither the fact that such links may be generated by a third party such as a registrar, nor the fact that the Respondent itself may not have directly profited, would by itself prevent a finding of bad faith (see section 3.5 of the WIPO Overview 3.0).
The Panel notes that the Complainant has extensively used its AIRTEL mark for a long time before the registration of the disputed domain name, including using it on the Internet. The Respondent’s probable purpose in registering the disputed domain name which incorporates the entire mark of the Complainant is, in the Panel’s view, to capitalize on the reputation of the Complainant’s mark.
As set out in the WIPO Overview 3.0, section 3.1.4, UDRP panels have consistently found that the mere registration of a domain name that is identical or confusingly similar to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith. Here, there is no doubt that the Complainant’s mark AIRTEL is a recognised and popular mark, in particular in India where the Parties are located. In fact, in a lawsuit filed by the Complainant in 2013 regarding its trademark rights in AIRTEL, the Delhi High Court held AIRTEL as a well-known mark. The Complainant has filed a copy of the court’s order as Annex 16 to the Complaint. Hence, the Panel is satisfied that the Respondent knew, or in any event ought to have known, of the mark’s existence.
The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith.
Absent any formal response from the Respondent, little is known about the Respondent. The Respondent has not availed himself of the opportunity to present any case of good faith that it might have had, and, in view of the circumstances, the Panel cannot conceive of any. The Panel finds that on the balance of probabilities, the Respondent’s conduct in registering and using the disputed domain name constitutes opportunistic bad faith under the Policy.
Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of Policy.
7. DecisionFor 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
Shwetasree Majumder
Sole Panelist
Date: February 10, 2022