The Complainant is Al Marjan Island LLC of Dubai, United Arab Emirates, represented by Al Tamimi & Co., United Arab Emirates.
The Respondent is Ashraf Khan of Dubai, United Arab Emirates. 2. The Domain Name and Registrar
The disputed domain name is registered with AE Domain Administration (.aeDA). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2019. On January 18, 2019, the Center transmitted by email to AE Domain Administration (.aeDA) a request for registrar verification in connection with the disputed domain name. On January 20, 2019, AE Domain Administration (.aeDA) 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 UAE Domain Name Dispute Resolution Policy for – UAE DRP approved by .aeDA (the “Policy”), the Rules for UAE Domain Name Dispute Resolution Policy – UAE DRP (the “Rules”), and the Supplemental Rules for UAE Domain Name Dispute Resolution Policy – UAE DRP (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 23, 2019. In accordance with the Rules, paragraph 5(a), the due date for Response was February 12, 2019. On January 29, 2019, the Center received an informal communication from the Respondent. The Respondent did not submit a formal Response. Accordingly, the Center informed the Parties of the commencement of the Panel appointment process on February 13, 2019.
The Center appointed Nayiri Boghossian as the panelist in this matter on February 22, 2019. 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 real estate developer located in the United Arab Emirates. The Complainant owns the trademark registration nos. 297005 and 297006 for the trademark MARJAN registered on November 22, 2018 in the United Arab Emirates.
The Respondent registered the disputed domain name on February 4, 2013. The disputed domain name resolves to a parked website. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or highly similar to a trademark in which the Complainant has rights. The Complainant uses the name Al Marjan in commerce, the distinctive part of which is “marjan”, and owns registered trademark rights in the term MARJAN. The country code Top-Level Domain (“ccTLD”) “.ae” does not add distinctiveness to the disputed domain name but creates the impression that the disputed domain name relates to the Complainant’s business. Internet users will be led to believe that the disputed domain name is authorized, associated with, or belongs to the Complainant as the ccTLD “.ae” is that of the country where the Complainant has its operations.
The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not authorized the Respondent to use the disputed domain name nor is the Complainant connected with the Respondent. The disputed domain name is not the name of the Respondent. It is not similar to the name of the Respondent nor connected to the Respondent. The Respondent is not making a legitimate noncommercial fair use of the disputed domain name but on the contrary is trying to create confusion. The Respondent is attempting to derive pecuniary gain from the use of the disputed domain name. There is no bona fide offering of goods or services being made by the Respondent.
The disputed domain name has been registered and is being used in bad faith. The disputed domain name was registered in bad faith as there is no plausible reason for the Respondent to register the disputed domain name other than to confuse Internet users and attract them for commercial gain. The disputed domain name is being used in bad faith as it is being used in order to attract Internet users by creating the belief that they are dealing with the Complainant and as a result derive commercial gain. The Respondent must have been aware of the Complainant’s trademark, which has been used and promoted extensively since 2013. The Respondent must have been aware of the Complainant’s renown and it is for that specific reason that the Respondent is using the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant holds two trademark registrations for the trademark MARJAN. The Panel is satisfied that the Complainant has established its ownership of the trademark MARJAN.
The disputed domain name comprises the Complainant’s trademark in its entirety. The Complainant’s trademark is clearly recognizable in the disputed domain name. The ccTLD “.ae” may typically be ignored when assessing confusing similarity as held by prior Uniform Domain Name Dispute Resolution Policy (“UDRP”) panels.
Consequently, the Panel finds that the disputed domain name is confusingly similar to the trademark of the Complainant and that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Pursuant to the Complainant’s contestations set out above in Section 5, the Panel finds that the Complainant has made a prima facie showing that the Respondent does not have any rights or legitimate interests in the disputed domain name, particularly by asserting that it never authorized the Respondent to use its trademark as part of the disputed domain name.
The Respondent has not provided evidence of circumstances of the types specified in paragraph 4(c) of the Policy, or of any other circumstances, giving rise to rights or legitimate interests in the disputed domain name. Consequently, the Panel finds that the Complainant has met the requirement under the Policy of showing that the Respondent does not have any rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The element of bad faith is evidenced by the fact that the trademark MARJAN has been promoted extensively and at least since 2013. In fact, it appears from the exhibits produced by the Complainant that Al Marjan islands project was launched in 2007 during the real estate show Citiscape. Furthermore, the project itself and its promotion took place in the United Arab Emirates, where the Respondent seems to be located. Therefore, it must be that the Respondent was aware of the Complainant and its trademark when he registered the disputed domain name. This is further reinforced by the fact that the disputed domain name includes the ccTLD “.ae”, which is the ccTLD of the United Arab Emirates. This indicates that the Respondent knew very well of the Complainant’s operations that take place in the United Arab Emirates.
Additionally, the Respondent did not provide a response to the Complaint demonstrating actual or contemplated good faith use and the disputed domain name resolves to a website that is expired. Therefore, the Panel concludes that the disputed domain name is registered and is being used in bad faith.
Such conduct falls squarely within the meaning of paragraph 4(b)(iv) of the Policy, and accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 6(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Nayiri Boghossian
Panelist
Date: March 4, 2019
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