The Complainant is Aruba Networks, Inc. of Sunnyvale, California, United States of America (“United States”), represented by Rodenbaugh Law, United States.
The Respondent is Hedloc Pty. Ltd. / Technical Manager of Sydney, New South Wales, Australia, represented internally. 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 July 1, 2014 naming Hedloc Pty. Ltd. (“Hedloc”) as Respondent. On July 14, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 15, 2014, the Registrar transmitted by email to the Center its verification response asserting that the registrant is not Hedloc but is Technical Manager, despite the WhoIs information included in the Registrar’s verification response showing “Hedloc Pty. Ltd.” as registrant and Technical Manager as “Registrant Contact Name”. The Registrar also stated that the Domain Name was registered “to this registrant” on February 17, 2014. The Center sent an email communication to the Complainant on July 17, 2014 providing the registrant and contact information provided by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 22, 2014, which named Hedloc and Technical Manager as Respondent.
The Center verified that the Complaint together with the amended 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 July 23, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was August 12, 2014. The Response was filed with the Center on August 11, 2014.
Both parties made unsolicited Supplemental Filings, the Complainant on August 14 and September 4, 2014 and the Respondent on August 20 and 27 and September 8, 2014. Exercising its discretion under paragraphs 10 and 12 of the Rules, the Panel has taken the Supplemental Filings into account, with the exception of the Respondent’s filing of September 8, 2014.
The Center appointed Alan L Limbury as the sole panelist in this matter on September 1, 2014. 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
In numerous countries including the United States and Australia, the Complainant markets access management, network infrastructure and mobility application solutions under the trademark ARUBA NETWORKS.
The Complainant (sometimes also referred to as “Aruba Networks”) is the proprietor of several ARUBA NETWORKS trademark registrations in various countries, including Australian trademark No.1144324 registered on April 30, 2007 in International Class 009 for “networking hardware, radio frequency software, data security application software for use in providing secure wireless data transmission and network security to enterprise customers”. The Australian registration is based on International Registration No.899456.
There is disagreement as to when the Domain Name was registered. It is presently inactive but screenshots provided by the Complainant show that between at least July 20, 2012 and January 30, 2014, the Domain Name has been used to resolve to the Hedloc website, showing the Hedloc name and the statement: “Innovators in a new era of cutting edge technology, designed for business, made for technologists. The Enterprise Evolution™ is here”.
There was no reply to a cease-and-desist letter sent to Hedloc dated May 21, 2014. 5. Parties’ Contentions A. Complainant
The Registrar’s WhoIs database lists “Hedloc Pty. Ltd.” as the “Registrant” of the Domain Name and “Technical Manager” as the “Registrant Contact Name”. Technical Manager is the same entity as Hedloc Pty. Ltd.
The Domain Name is identical or confusingly similar to the Complainant’s ARUBA NETWORKS mark and the Respondent has no rights or legitimate interests in the Domain Name, which was registered and was subsequently being used in bad faith.
As to legitimacy, based on the criteria set forth under paragraph 4(c) of the Policy, there is no evidence to indicate that the Respondent has a legitimate interest in the Domain Name. The Respondent has not demonstrated a bona fide use or demonstrable preparations to use the Domain Name, which resolved to a website advertising the Respondent’s services from at least July 20, 2012 to January 30, 2014. Currently, the Domain Name does not resolve to an active website and the Complainant is unaware of any other bona fide or demonstrable preparations. To the best of the Complainant’s knowledge, the Respondent is not commonly known by the Domain Name and there is no evidence to demonstrate a legitimate non-commercial use of the Domain Name by the Respondent. The evidence indicates to the contrary since the website has been used for the Respondent’s promotional purposes and there is no other available information to infer any legitimate use.
As to bad faith, the Complainant has no knowledge of any legitimate business conducted by the Respondent in association with the Domain Name in the United States, Australia or elsewhere. The Complainant has a well-known reputation under the ARUBA NETWORKS trademark and name. It is impossible to conceive of any situation where the Respondent could have been unaware of the Complainant when making this registration. This evidence demonstrates that the Respondent registered the Domain Name in bad faith.
The Respondent has made bad faith use of the Domain Name by redirecting Internet users to its own commercial services website. Currently the Respondent is passively holding the Domain Name, making a similar bad faith use. The Complainant is unaware of any evidence of actual or contemplated good faith use of the Domain Name by the Respondent. The Domain Name is currently inactive and does not resolve to an active website. While the Respondent has not actively concealed its identity, it has ignored communications from the Complainant. Overall, it is impossible for the Complainant to conceive of any plausible actual or contemplated legitimate use of the Domain Name by the Respondent. Therefore, the Respondent’s former use and current passive holding of the Domain Name constitute bad faith use. B. Respondent
The Respondent Hedloc registered the Domain Name in 2006 and renewed it again in 2008 and 2010. The Complainant made a similar objection to .au Domain Administration Ltd (“auDA”) in 2009 and auDA found Hedloc to be entitled to register the Domain Name.
In 2006 when the Domain Name was originally purchased, Hedloc was the largest Aruba Networks reseller in the Asia Pacific region, having sold the wireless networking solution to a number of commercial and government organisations in Australia. Hedloc invested time and money in marketing its capability to resell wireless networking products (such as Aruba Networks) and networking services and training in the region.
Hedloc sought permission at the time from the Aruba Networks Country Manager for Australia in purchasing the Domain Name and was given approval to do so. At that time Hedloc was paying for all the marketing in the region. Apart from its Country Manager and one technical person both employed by an overseas company, Aruba Networks had no other presence in the region. Hedloc used the Aruba Networks International Reseller Price List for purchase and resale. Exhibit A to the Response is a confidential Aruba Networks international price list effective December 19, 2006.
Exhibit B to the Response evidences a sample transaction dated June 23, 2008, being a reseller order for Aruba Networks solutions sold by Hedloc to the New South Wales Police.
Today, Aruba Networks wireless solutions are readily available for any IT resellers to purchase from a number of distributors in the region. This is done directly with the local distributors instead of the original method of importing from the United States from Aruba Networks directly.
Because these products are now widely available, Hedloc does not continue to exclusively sell these products in the region (as an Australian government endorsed supplier, Hedloc sells a large variety of enterprise IT products and services), but Hedloc does still support its customer base with any training and engineering services they may require with the Aruba Networks wireless products.
The Respondent contends that Aruba Networks is not only aware of this, but is supportive of this. This is evidenced by the regular partner updates, product updates and security notices that numerous members of the Hedloc team receive on a regular basis, recent examples of which comprise Exhibit D to the Response, dated between March 15, 2012 and July 3, 2014.
Australian Securities and Investment Commission records show the company registration date of Aruba Networks Pty. Ltd. as August 28, 2007. An Australian domain name must be owned by an Australian individual or entity, which confirms that in 2006 when Hedloc received permission from Aruba Networks to register the Domain Name, the United States company did not have any legal entitlement to the Domain Name at that time. C. Supplemental Filings
i) Complainant, August 15, 2014
In a Declaration made on August 14, 2014, V. A. Shah, the Complainant’s Director of Intellectual Property, having investigated the matter, says the Complainant has no ties with the Respondent. In 2006, the Respondent attempted to become one of the Complainant’s authorized resellers but the application was never approved and the Respondent did not become an authorized reseller.
Mr. Shah says the Respondent has never been authorized to use the Aruba Networks name or trademarks in any manner, including in the Domain Name, which appears to have been registered in bad faith, with intent to exert leverage over the Complainant in an effort to become an authorized reseller.
Mr. Shah says the Respondent’s Exhibit A appears to be one of the Complainant’s old price lists which was widely available and does not establish any relationship between the parties. Exhibit B shows the Respondent has cropped an older version of the Complainant’s Aruba Networks logo without authorization in a manner likely to confuse relevant consumers and has created and sold a product called “Arubacare”, which is not currently and has never been one of Aruba Networks’ products. The Complainant has not authorized the Respondent to use the ARUBA NETWORKS trademark for its “Arubacare” product. Exhibit C is nothing more than internal email between the Respondent’s own employees. It does not establish any relationship with the Complainant. Exhibit D is an email that the Complainant sends to a broad email list, which can include nearly anyone including potential partners and potential customers. This email does not provide any evidence that there is a relationship between the parties, only that the Respondent is a recipient of the Complainant’s email list.
In an accompanying email dated August 14, 2014, the Complainant submits that the Declaration of Mr. Shah disproves the Respondent's primary contention that it was authorized by the Complainant to register and use the Domain Name. In fact, the Respondent was never so authorized, and has made trademark infringing use of the Domain Name, as well as the Complainant's logo and the “Arubacare” mark adopted by the Respondent. None of the Exhibits submitted by the Respondent show any relationship between the parties.
The Complainant has searched the auDA archive and found no record any prior auDA proceeding involving the Domain Name. The Respondent provides no evidence that such a proceeding occurred and no argument that any such decision would be relevant now.
The Complainant asserts that it is irrelevant that the Complainant did not form an Australian subsidiary until 2007 and thus could not have registered the Domain Name in 2006 when it was registered by the Respondent, because in 2006 the Domain Name was registered in bad faith, with intent to exert leverage over the Complainant in an effort to become an authorized reseller of the Complainant. The Respondent did not have authority then and does not have authority now to have registered the Domain Name.
Nor does the Respondent provide any evidence that it makes any legitimate use of the Domain Name, which does not resolve to any website. Thus the Respondent has not provided any valid argument or evidence to support its claim of authorized use of the Domain Name. Indeed, the Complainant specifically refutes this and proves the irrelevance of each piece of evidence submitted by the Respondent, arguing therefore that the Complaint should be decided in favour of the Complainant, and the Domain Name transferred to the Complainant.
ii) Respondent, August 20, 2014
By Declaration dated August 20, 2014, S. Pisano (nee Golino), Chief Operating Officer of the Respondent, says that Hedloc was approved as an Aruba Networks partner in 2005 and was the Complainant’s largest partner in the region for a number of years.
The Respondent was approved to use the Aruba Networks name and trademark as an authorized partner. In an email dated October 25, 2006, the Complainant’s Country Manager for Australia/New Zealand, provided the Respondent with the partner logo. The Domain Name was registered with approval from the Complainant’s Country Manager. The Respondent never tried to exert leverage over the Complainant nor has it had the need to.
Exhibit A was an international price list. Ms. Pisano denies that it was available publicly. All pricelists were provided to the Respondent either by the Complainant’s representatives or by the distributor.
Exhibit B does not show that the Respondent created and sold a product called “ArubaCare”. The email depicts that the document was actually from the Complainant’s distributor Networld Systems, a subsidiary of Distribution Central, to the Respondent, confirming what the Respondent had purchased on behalf of its customer, the New South Wales Police. The allegations that the Respondent has misused any trademarks or attempted to confuse any customers are rejected by the Respondent.
Exhibit C contains correspondence between the Complainant’s distributor and the Respondent.
As to Exhibit F, there exist a large number of emails sent specifically to Hedloc staff due to the close and substantial relationship Hedloc has with the Aruba Networks solution.
Exhibit G shows that investigation was done by auDA into a complaint (reference No. C090976) and that Hedloc was advised on July 17, 2009 that auDA had determined that Hedloc’s registration of the Domain name complied with the Domain Name Eligibility and Allocation Policy Rules for Open Second Level Domains (2LDs) (2008-05).
The website at the Domain Name is required and in use by the Respondent. It is currently frozen by the Registrar pending resolution of this dispute.
iii) Respondent, August 27, 2014
By declaration dated August 27, 2014, D. Humphries, the Complainant’s Country Manager, Australia and New Zealand, between July 2005 and August 2007, stated that he was responsible for the establishment of a partner program as the Complainant’s sales model in the Australia and New Zealand market was to sell through authorized partners. Hedloc was established as an Aruba Networks authorized partner in 2005. Hedloc resold Aruba Networks products to its existing customer base and was responsible for a number of product sales and complex deployments in the region. Mr. Humphries was aware of Hedloc’s investment in marketing the Aruba Networks products, engineering services and the training it offered. During his time at Aruba Networks, Hedloc was a significant partner in the Australia and New Zealand region. Hedloc purchased Aruba Networks products both directly from Aruba Networks and also through local distributors.
iv) Complainant, September 4, 2014
By declaration made on September 3, 2014, V. A. Shah, having further investigated the matter, says Hedloc purchased USD 100,000 or less of equipment from Aruba Networks between June 1, 2006 and July 31, 2007 and has not purchased any equipment directly from Aruba Networks since then. The Complainant had revenue in the fiscal year to July 2014 of USD 728 million. Contrary to the declaration of Mr. Humphries, the USD 100,000 or less of equipment purchased by Hedloc more than seven years ago is insignificant and does not establish Hedloc as a significant partner. Hedloc has failed to provide any contract identifying a “partner” relationship status between the parties. Hedloc is not a current partner of Aruba Networks and has had no relationship whatsoever with Aruba Networks since July 31, 2007. Hedloc has never requested permission and has never been authorized by Aruba Networks to purchase the Domain Name. “ArubaCare” is an unregistered trademark of the Complainant, referring to branded services provided only by the Complainant’s employees. Hedloc is not authorized to use “ArubaCare” as a description of services provided by employees of Hedloc. The Complainant’s employees have not in the past and do not currently provide any “ArubaCare” service that has been sold by Hedloc, which without authorization or permission, uses both the Domain Name and the “ArubaCare” trademark to advertise services provided by employees of Hedloc.
In an accompanying email dated September 4, 2014, the Complainant submits that this Declaration of Mr. Shah refutes any relevant assertions made by the Respondent in its last two statements. To the extent the Panel pays any heed to those self-serving statements, Mr. Shah’s declaration ought to be given more credence. The evidence is clear that the Respondent has never had permission from Complainant to register or use the Domain Name, and so has made no legitimate use of the Domain Name. Instead it has been registered and used in bad faith for the Respondent’s own commercial purposes, depriving the Complainant from using its own trademark at the second level in the “.” TLD. Therefore, the Complainant argues, the Domain Name should be transferred to the Complainant 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles it is to use in determining this dispute: “A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable.”
Under paragraph 4(a) of the Policy the Complainant has the burden of proving the following three elements:
(i) the Domain Name is identical or confusingly similar to a name, trade mark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect to the Domain Name; and
(iii) the Domain Name has been registered or subsequently used in bad faith. A. Preliminary Matter: Date of registration of the Domain Name
There appears to be no agreement, nor any conclusive evidence before the Panel, as to when the Domain Name was registered. According to the amended Complaint, the Domain Name was registered on December 9, 2010 but the WhoIs information on which the Complainant relies in this regard does not show any date of registration. According to the Registrar’s response to the Centre’s verification request, the Domain Name was registered to the current registrant on February 17, 2014 but the WhoIs information provided by the Registrar does not show any date of registration. According to the Respondent, the Domain Name was purchased in 2006 but the Respondent has provided no evidence of this. In its Supplemental Filings the Complainant appears to accept that the Respondent registered the Domain Name in 2006. The Panel will proceed on the basis that the Domain Name was registered by the Respondent in 2006. B. Identical or Confusingly Similar
There is no dispute that the Complainant has rights in the ARUBA NETWORKS trademark in various countries, including Australia. The Domain Name comprises the ARUBA NETWORKS mark in its entirety, together with the suffix “.”, which may be disregarded in considering identity or confusing similarity.
The Panel finds that the Domain Name is identical to the Complainant’s trademark.
The Complainant has established this element. C. Rights or Legitimate Interests
The “auDA Overview of Panel Views on Selected auDA Questions, First Edition” states the general position, namely that “a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such a case is made the burden of proof shifts to the respondent requiring it to provide evidence or plausible assertions demonstrating rights or legitimate interests in the disputed domain name. If the respondent fails to provide such evidence or assertions, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the Policy”.
The Panel finds that the Complainant’s assertions are sufficient to establish a prima facie case of absence of rights or legitimate interests in the Domain Name on the part of the Respondent.
Under paragraph 4(c) of the Policy, any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, is to be taken to demonstrate a respondent’s rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the subject matter of the dispute, your bona fide use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with an offering of goods or services (not being the offering of domain names that you have acquired for the purpose of selling, renting or otherwise transferring); or
(ii) you (as an individual, business, or other organisation) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the name, trademark or service mark at issue.
The fact that the outcome of Complaint No. C090976 (which does not appear to have been published) was that the Respondent was found by auDA in 2009 to have satisfied the eligibility requirements for registration of the Domain Name does not, of itself, establish that the Respondent has rights or legitimate interests in respect to the Domain Name. This is because Note 2 of the Policy expressly states that rights or legitimate interests in a domain name are not established “merely by the registrar’s determination that the respondent satisfied the relevant eligibility criteria for the domain name at the time of registration”.
The parties are clearly in dispute as to whether the Respondent is or has ever been a reseller of the Complainant’s goods or services. The amended Complaint gives the impression that the parties never had any kind of relationship at all. This is at odds with much of the material provided by the Respondent emanating from the Complainant. The Panel finds that the Declaration of Mr. Humphries and Exhibit F to the Response confirm the authorized partner appointment asserted by the Respondent, commencing in 2005. That Exhibit includes:
- an email dated November 16, 2005 to Ms. Golino saying:
“Thank you for becoming an Aruba Partner!”
- an email dated February 4, 2007 to Ms. Golino, copied to Mr. Humphries and to several of the Complainant’s personnel, in which Mr. D. Orr, the President and CEO of the Complainant, said:
“Hi, S[…]
Thanks for offering to visit Aruba HQ in April. On Aruba side, J[…] Douglas, our Federal Govt Marketing manager will be the point person to coordinate your visit. J[…] will work closely with M[…] Andrade, our CTO who is VERY involved with the Federal work, to make sure you have a very productive agenda.
M[…] and J[…]
Please be introduced to S[…] Golino, co-founder of Hedloc, our Canberra based partner, with whom D[…] Humphries, our Australian Sales manager has been working hard to win some sizable annuity projects in the Australian Govt.”
- an email from Ms. Golino to Mr. Humphries dated October 23, 2005 saying:
“Hi D[…],
Is it possible for you to send me the Aruba partner logo? We would like to include it in any proposals and/or tenders we put together, not to mention the business cards and templates we have to update.”
- Mr. Humphries’ reply:
“New logo attached.”
The Panel concludes that the Respondent has been and was, at the time when the Domain Name was registered, an authorized reseller of the Complainant’s goods or services and that the Respondent initially purchased directly from the Complainant and subsequently from the Complainant’s distributors.
The mere fact that the Respondent is or was an authorized reseller of the Complainant’s goods or services does not of itself demonstrate that the Respondent has rights or legitimate interests in respect to the Domain Name. In this regard the requirements of paragraph 4(c) of the Policy are, in essence, identical to the requirements of the paragraph 4(c) of the UDRP:
“It is well established under the UDRP that a respondent who is a “reseller” of goods or services to which the disputed domain name relates can be making a bona fide offering of those goods or services for the purposes of paragraph 4(c)(i), and thus can have a legitimate right or interest in the disputed domain name for the purposes of paragraph 4(a)(ii), if certain requirements are satisfied. These requirements include: (1) the respondent must actually be offering goods or services related to the trademark in respect of which the domain name is confusingly similar; (2) the respondent must offer only those goods or services in connection with the disputed domain name; (3) the respondent must have disclosed its true relationship with the owner of the trademark to which the domain name is identical or confusingly similar; and (4) the respondent must not have attempted to “corner the market” in domain names that reflect that trademark – see, e.g., Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903 (hereinafter “Oki Data”). This principle has been extended to apply to resellers who do not have a contractual relationship with the trademark owner (i.e., unauthorized resellers) – see, e.g., DaimlerChrysler A.G. v. Donald Drummonds,WIPO Case No. D2001-0160; Dr. Ing. h.c. F. Porsche AG v. Del Fabbro Laurent,WIPO Case No. D2004-0481”
GM Holden Ltd v. Publishing Australia Pty Ltd,WIPO Case No. DAU2011-0002.
In the present case, the Panel is satisfied that the Respondent is actually offering goods or services related to the ARUBA NETWORKS trademark but it appears from the screenshots of the Respondent’s website and from the Respondent’s own statements that the Respondent also offers other goods and services via that website. Further, there appears to be no disclosure in the screenshots of the Respondent’s website of the relationship between the parties. No question arises of attempting to “corner the market” in domain names that reflect the ARUBA NETWORKS trademark. The Respondent therefore complies with the first and fourth of the Oki Data requirements but not with the second and third requirements. Hence the use by the Respondent of the Domain Name is not shown by the Respondent to be bona fide use for the purposes of the Policy, paragraph 4(c)(i).
There is no suggestion that the Respondent has been commonly known by the Domain Name nor that the use of the Domain Name has been non-commercial. Hence neither of paragraphs 4(c)(ii) or (iii) apply.
The circumstances set out in paragraph 4(c) are not exhaustive, however. The question arises whether the Respondent has rights or legitimate interests in the Domain Name arising out of the permission which the Respondent says was granted by Mr. Humphries to the Respondent to register the Domain Name, at a time when the Complainant itself was ineligible to do so. In this regard it is significant that Mr. Humphries’ Declaration, which supports the Respondent’s claim to have been appointed an ARUBA NETWORKS partner, is silent on the question whether he granted the Respondent permission to register the Domain Name. On the material before it, the Panel is unable to conclude that any such permission was granted.
Accordingly the Respondent has failed to rebut the Complainant’s prima facie case that the Respondent has no rights or legitimate interests in the Domain Name. D. Registered or Subsequently Used in Bad Faith
Under paragraph 4(b) of the Policy, for the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration or use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to another person for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of a name, trademark or service mark from reflecting that name or mark in a corresponding domain name; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business or activities of another person; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to a website or other online location, by creating a likelihood of confusion with the complainant's name or mark as to the source, sponsorship, affiliation, or endorsement of that website or location or of a product or service on that website or location.
As to registration, the amended Complaint says the Complainant has no knowledge of any legitimate business conducted by the Respondent in association with the Domain Name in the United States, Australia or elsewhere. This assertion cannot be accepted by the Panel, given the strong evidence, including from the President and CEO of the Complainant, of a trading relationship between the parties going back at least to 2005 and continuing via periodic email updates, into 2014. The Respondent has shown that it was established as an Aruba Networks authorized partner in 2005. It had access to what appears to be a confidential international price list from the Complainant. It resold the Complainant’s products to the Respondent’s existing customer base and, at least prior to August, 2007, was responsible for a number of product sales and complex deployments in the region. Having taken all the evidence into account, the Panel considers that, whether or not the Respondent had a licence or the permission of Mr. Humphreys to register the Domain Name, it is more likely than not that the Respondent registered the Domain Name for the purpose of furthering its sales of the Complainant’s products in its capacity as an Aruba Networks authorized partner, i.e., the Respondent subjectively at least believed the registration to be in good faith. There is no evidence that the Respondent registered the Domain Name for any of the purposes set out in the Policy, paragraphs 4(b)(i), (ii) or (iii).
Accordingly the Panel finds that the Complainant has failed to establish that the Domain Name was registered in bad faith.
As to use, the Panel’s finding that the way in which the Respondent has used the Domain Name does not amount to bona fide use under the Oki Data principles relating to rights or legitimate interests would generally lead to a finding that the Respondent has used the Domain Name in bad faith. However, in this case the Complainant has failed to satisfy the Panel that the Respondent has used the Domain Name in bad faith, and in particular has failed to satisfy the Panel that the Respondent has ever intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant's name or mark as to the source, sponsorship, affiliation, or endorsement of that website or location or of a product or service on that website or location.
The Complainant’s failure in this regard is attributable to the way in which the Complainant has presented its case, in the following respects:
- claiming in its amended Complaint to have no knowledge of any legitimate business conducted by the Respondent in association with the Domain Name, when in fact the Respondent was appointed an Aruba Networks authorized partner in 2005;
- submitting in its initial Supplemental Filing that in 2006, the Respondent attempted to become one of the Complainant’s authorized resellers but the application was never approved and the Respondent did not become an authorized reseller, and that the Domain Name was registered in bad faith, with intent to exert leverage over the Complainant in an effort to become an authorized reseller of the Complainant, when in fact the Respondent had been appointed an Aruba Networks authorized partner in 2005;
- claiming in its first Supplemental Filing that the Respondent created and sold a product called “Arubacare”, which is not currently and has never been one of Aruba Networks’ products, when the Respondent’s Exhibit B clearly shows that in 2008 the Respondent did not create but instead was the reseller to the New South Wales Police of several of the Complainant’s licences, purchased from one of the Complainant’s distributors, which licences carried with them the provision of ArubaCare services;
- having claimed in its first Supplemental Filing that “Arubacare” is not and has never been one of Aruba Networks’ products, claiming in its second Supplementary Filing that “ArubaCare” is an unregistered trademark of the Complainant, referring to branded services provided by the Complainant’s employees;
- in seeking to portray the Respondent’s revenue as insignificant and as not establishing Hedloc as a significant partner, comparing the value of Hedloc’s purchases from Aruba Networks between June 1, 2006 and July 31, 2007 with the Complainant’s revenue in the fiscal year to July 2014, while failing to disclose the Complainant’s revenue in the fiscal year to July 2007; and
- claiming in its second Supplemental Filing that the Respondent has had no relationship whatsoever with Aruba Networks since July 31, 2007 while failing to acknowledge that in 2008 the Respondent was reselling the Complainant’s products purchased from one of the Complainant’s distributors, as shown in Exhibit B to the Response.
These numerous self-serving assertions, which are either self-contradictory or are contradicted by the evidence, lead this Panel to have no confidence in the veracity of what has been asserted by the Complainant that is not fully and unequivocally substantiated. As a result, the Panel is not persuaded that the Complainant has established that the Respondent has used the Domain Name, either actively or passively, in bad faith.
The Complainant has failed to establish this element of its case. 7. Decision
For all the foregoing reasons, the Complaint is denied.
Alan L Limbury
Sole Panelist
Dated: September 8, 2014
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