The Complainant is New Horizons Education Corporation of Anaheim, California, United States of America, represented by Neal & McDevitt, United States of America.
The Respondent is New Horizons B.V. of Eindhoven, the Netherlands. 2. The Domain Name and Registrar
The disputed domain name is registered with .NU Domain Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 27, 2013. On March 28, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 29, 2013, 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 Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy, adopted by the registration authority of .NU (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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 5, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was April 25, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 26, 2013.
The Center appointed Gunnar Karnell as the sole panelist in this matter on May 6, 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 disputed domain name was created on February 13, 2007.
The Complainant requests that the disputed domain name be transferred to the Complainant.
The Complainant is the registered owner and user of the United States registered trademark NEW HORIZONS, U.S. REG. No. 1,337,233, issued on May 21, 1985. 5. Parties’ Contentions A. Complainant
At least since 1983, and continuously since the registration in 1985, the Complainant is the user of its well known trademark NEW HORIZONS. It is also the owner of a number of other federal registrations of similar trademarks and of trademarks in the United States that include the same words. The Complainant also holds numerous domain name registrations all over the world, based on the characterizing word “newhorizons”. It uses its marks and name in connection with educational services, such as computer training and related goods. It is well known for its computer training centers in the United States and worldwide. Its marks are distinctive and well known in the computer training industry to which the Respondent extends its business.
The Respondent is operating a website located at the disputed domain name. There, it uses the NEW HORIZONS marks without the authorization of the Complainant, appearing to offer Complainant’s services. Also, under the “contact” tab on its website, the Respondent lists a number of addresses in the Netherlands which were previously affiliated with Complainant’s franchisees. These were, however, all terminated on February 25, 2013.
The domain name is identical or confusingly similar to the Complainant’s trademark NEW HORIZONS and nearly identical to many of Complainant’s domain names.
The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has no United States trademark registrations and there is no evidence that the Complainant “ever had a direct relationship with Respondent or offered Respondent the right to use the NEW HORIZONS Marks. In fact, even if Complainant had a relationship with Respondent in the past, Complainant terminated all of its franchise agreements in the Netherlands on February 25, 2013.” The Respondent, not connected with the Complainant, who has never consented to the use of its trademark in the disputed domain name, apparently uses the disputed domain name to offer Complainant’s services, despite not being affiliated with the Complainant and despite the fact that the Complainant recently terminated all of its franchise agreements in the Netherlands. It appears that the only interest that the Respondent had in obtaining the disputed domain name was to lead users searching for the Complainant to come across the Respondent’s site.
The disputed domain name was registered and is being used in bad faith. The Respondent does not maintain its own business operations on the website at “www.”. There it attempts to attract users for commercial gain by creating confusion between the disputed domain name and the Complainant’s trademarks. The website does not give evidence of any Respondent’s own activities. It registered and it uses it in bad faith, having devised a variant “ .nu”, not held by the Complainant among its many registered domain names, to offer the Complainant’s services without any authorization. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel finds that the disputed domain name incorporates and it is confusingly similar to the Complainant’s multi-registered and well-known trademark NEW HORIZONS. B. Rights or Legitimate Interests
The Complainant has alleged that it has not authorized the Respondent’s present use of its trademark NEW HORIZONS. Nothing can be read out of the case file about the conditions under which the registration of the disputed domain name took place on February 13, 2007.
The Complainant, adducing that “there is no evidence that Complainant has ever had a direct relationship” with the Respondent, points out that even if it had a relationship in the past with the Respondent the Complainant “terminated all of its franchise agreements in the Netherlands on February 25, 2013”.
Be it, as stated by the Complainant, that the Respondent may not have itself been a franchisee to the Complainant, however, since there has been no attempt at clarification from the Respondent, and due to the evasive character of the Complainant’s statement quoted here above, the Panel remains in doubt about the parties’ earlier relations and possible legal effects of indirect relationships if any, as well as of any possible significance thereof for the Panel’s assessments. The Panel nevertheless concludes, on the basis of the Complainant’s contentions, that the Respondent does not now base its activities under the disputed domain name on any license or other permitting element for the Respondent’s use of the Complainant’s trademark that can be traced back to the Complainant, such as might presently provide the Respondent with any rights or legitimate interests to it. In short, the Panel does not find proof of any such rights or interests. C. Registered and Used in Bad Faith
The Complainant filed its Complaint with the Center on March 27, 2013. The disputed domain name was created already on February 13, 2007, and later maintained under circumstances that have not been explained. An analysis of the arguments brought forward by the Complainant and of other case file material does not convince the Panel that the registration of the disputed domain name in 2007 was a registration in bad faith by the Respondent.
This said, the Panel has no cause to decide on whether the Respondent’s use of the disputed domain name shall be considered a use in bad faith or not. To be the basis of a Panel decision of transfer of the disputed domain name to the Complainant as claimed, both registration and use must be found to be in bad faith.
Whereas now the Panel finds that the registration of the disputed domain name has not been proven to be in bad faith the Complaint shall be denied. 7. Decision
For the foregoing reasons, the Complaint is denied.
Gunnar Karnell
Sole Panelist
Date: May 9, 2013
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