The Complainant is Zoopla Property Group Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by Sanderson & Co., United Kingdom of Great Britain and Northern Ireland.
The Respondent is Media Mouse Pty. Ltd. of South Australia, Australia, self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with PlanetDomain Pty Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 7, 2013. On February 8, 2013, the Center transmitted by email to PlanetDomain Pty Ltd. a request for registrar verification in connection with the disputed domain name. On February 13, 2013, PlanetDomain Pty Ltd. 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 .au Dispute Resolution Policy (the "Policy"), the Rules for .au Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for .au Domain Name Dispute Resolution Policy (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 February 13, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 5, 2013. The Response was filed with the Center on March 5, 2013.
The Center appointed Michael J. Spence as the sole panelist in this matter on March 13, 2013. 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 runs a United Kingdom based real property search web site that was launched in January 2008, and attracted significant media and other publicity. The business operates under various trade marks and domain names containing the invented word "Zoopla", including Community and Australian trade marks. The ZOOPLA trademark was registered in Australia on June 26, 2010.
The Respondent is an Adelaide based company with plans to use the disputed domain name for the purpose of promoting children's books written by a person associated with the company. The disputed domain name was registered on February 16, 2008, and has been used as "parked" site with an image of two pandas and the following indication: "We are coming". 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to its registered trade marks; that the use of the disputed domain name for a "parking" site does not give rise to rights or legitimate interests in the disputed domain name; and that an offer to sell the disputed domain name for an inflated price of GBP 50,000, together with imputed knowledge of the Complainant's activities and therefore an attempt to profit from confusion created by the disputed domain name, evinces the use or registration of the disputed domain name in bad faith. In supporting the claim that the disputed domain name was registered for the purpose of profiting from confusion between name and the Complainant's trade marks, the Complainant points out that a company apparently associated with the Respondent is engaged in the business of affiliate marketing. B. Respondent
The Respondent contends that it was not aware of the Complainant when it registered the disputed domain name; that it has held the disputed domain name as a "parking" website while contracts were sought for the publication of the relevant children's books (evidencing example of letters from potential publishers responding to its finding requests); that the Complainant and its activities are unknown in Australia and that therefore there can be little chance of confusion between the Complainant's trade marks and the disputed domain name; that the disputed domain name was chosen because of the anticipated arrival at the Adelaide zoo of two pandas, announced in 2007, and on the basis of a child's mispronunciation of the words "zoo" and "play"; that the disputed domain name was not chosen with an attempt to profit from confusion created by the similarity of the Complainant's trade marks and the disputed domain name; and that it did not offer to sell the disputed domain name for an inflated price, but rather asserted that it would not sell the domain name, even for GBP 50,000. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name contains the Complainant's trade mark in its entirety. There can be no doubt, therefore, that the two are identical for the purposes of the application of the policy, even if one accepts the Respondent's argument that Australian consumers would not have been aware, at the time of the registration of the disputed domain name, of the Complainant or its trade marks.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy in relation to the disputed domain name. B. Rights or Legitimate Interests and Bad Faith
Under the Policy, the Complainant has the burden of proving each of the three elements of the Policy. With regard to the second element, it is for the Complainant to establish, at least prima facie, that the Respondent has no rights or legitimate interests in the disputed name (Croatia Airlines d.d. v. Modern Empire Internet Ltd. WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o. WIPO Case No. D2004-0110).
In this case the Complainant's contention that the Respondent has no rights or legitimate interests in the disputed domain name and that the disputed domain name was registered or subsequently used in bad faith depends upon a series of suppositions about the Respondent's knowledge of its activities depending, in large part, upon the extent of the publicity surrounding the launch of its own site, and the fact that the word "Zoopla" is an invented word, and therefore unlikely to have been devised in two different parts of the world at the same time. The Respondent has, for its part, rebutted each of these suppositions with a contrary claim of fact. Moreover, in the Panel's view, while the word "Zoopla" might be considered as an invented word, it may also arguably be a combination of two ordinary English words "zoo" and "hoopla", or as the Respondent contends of "zoo" and "play", and therefore not so fanciful that the balance of probabilities would suggest it might not have been adopted for different purposes in two different places at a similar time. The Respondent goes to some length to explain the purported origins of its use of the name.
The Complainant also contends that the Respondent has no rights or legitimate interests in the disputed domain name because it has not made reasonable preparations to use the disputed domain name except for the purpose of a "parking" site. The Respondent claims that there has been delay in its use of the disputed domain name because of delay in the process of securing publishing contracts for the books that it intends to promote on the site.
In cases such as these, in which contrary and plausible claims of fact are made and depend on the issues of the Respondent's rights or legitimate interests and bad faith, the Panel considers that it will be generally more difficult for the Complainant to meet its burden of proof and therefore succeed under the Policy. This is particularly the case because the Panel in UDRP proceedings does not have the ability to test the evidence of the parties beyond the information contained in the case file. For this reason, the Panel finds that the Complainant in this case has not discharged its burden of proof with respect to the second and third elements of the Policy. 7. Decision
For all the foregoing reasons, the Complaint is denied.
Michael J. Spence
Sole Panelist
Date: March 27, 2013
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