Mirza Juddani v. CDN Properties Incorporated CDN Properties Incorporated
Case No. D2014-1354
1. The Parties Complainant is Mirza Juddani, c/- Skiddoo Pty Limited of Sydney, Australia, represented by Hugh & Associates Lawyers, Australia.
Respondent is CDN Properties Incorporated of Panama City, Panama, represented by WebLegal, Italy.
2. The Domain Name and Registrar The disputed domain name (the “Domain Name”) is registered with Internet.bs Corp. (the “Registrar”).
3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 11, 2014. On August 11, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 22, 2014, the Registrar transmitted by email to the Center its verification response confirming that 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 (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 Respondent of the Complaint, and the proceedings commenced on August 22, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 11, 2014. The Response was filed with the Center on September 10, 2014.
The Center appointed Christopher S. Gibson as the sole panelist in this matter on September 19, 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. The decision due date was October 3, 2014. The Panel has extended the decision due date to October 24, 2014.
Supplemental filing Complainant has submitted a supplemental filing in this case. The UDRP Rules only provide for the submission of a Complaint and a Response, with no express provision made for additional filings by either party. Paragraphs 10 and 12 of the Rules grant the Panel sole discretion to determine the admissibility of supplemental filings received from either party. The Panel determines that it will admit and consider Complainant’s supplement filing in this case.
4. Factual Background Complainant operates an online travel business with offices in Sydney, Australia, and Makati and Manila in the Philippines. Complainant is the owner of the following trademarks:
- SKIDDOO CLICK AWAY, Australian trademark no.1362093, registered on May 18, 2010.
- SKIDDOO CLICK AWAY, trademark no. 1076614 in the International Register of Marks maintained by WIPO under the Madrid Agreement and Protocol, registered on November 18, 2010.
- SKIDDOO CLICK AWAY, New Zealand trademark no. 833264, registered on May 18, 2010.
- SKIDDOO CLICK AWAY, United States trademark no. 4,402,076, registered on September 17, 2013 with a priority date of 18 May 2010.
- SKIDDOO CLICK AWAY, United Kingdom trademark no. WO0000001076614, registered on November 18, 2010 with a priority date of May 18, 2010.
Complainant and its associated companies are registrants of the following domain names: , , , , , , , , , , , , , , , , and .
The Domain Name was initially registered on June 4, 2003.
5. Parties’ Contentions A. Complainant (i) Identical or confusingly similar
Complainant states that the main distinguishing feature of its SKIDDOO CLICK AWAY trademarks is the word “skiddoo", which is a made-up word that is similar to the Australian, English and American colloquial word “skidoo”, meaning to “leave somewhere quickly”. Complainant’s marks are used in providing online travel and accommodation services, including domestic and international air flights from Australia. The Domain Name contains the word “skiddoo", which is identical to the main distinguishing feature of Complainant’s marks. The inclusion in Complainant’s marks of the generic and descriptive words “click away”, which are used to describe the process of clicking through webpages on the Internet, does not alter the fact that the Domain Name is identical or confusingly similar to Complainant’s trademarks. Further, the addition of the generic Top-Level Domain (“gTLD”) suffix “.com” does not negate a finding of identical or confusing similarity.
(ii) Rights or legitimate interests
Complainant states that it has not licensed, authorized or otherwise permitted Respondent to use Complainant’s trademarks, the word “skiddoo” or the Domain Name. As far as Complainant is aware, Respondent does not own any trademark or service mark containing the word “skiddoo”. Respondent is not known by the Domain Name. The only names by which Respondent is known are “CDN Properties Incorporated” or “CDN Properties Incorporated CDN Properties Incorporated”, or “premiums” or “premiums.com”, which is the name of the webpage that appears when typing in the domain name . It appears that Respondent engages in the business of selling domain names, in some cases seeking offers greater than USD 10,000 per domain name.
Complainant has submitted evidence to show that Respondent’s website, to which the Domain Name resolves, contains sponsored commercial “pay-per-click” (“PPC”) links, which indicates that Respondent uses the Domain Name for the purpose of generating revenue via advertising. Complainant asserts that it has been held in previous UDRP cases that this use does not represent a use in connection with a bona fide offering of goods and services.
Complainant cites to a number of cases in which Respondent was previously involved as a respondent. Complainant maintains that, as evidenced from these cases, Respondent has a history of registering domain names without using them for any bona fide offering of goods, instead using them to promote hyperlinks to third party websites, some of which are in direct competition with Complainant’s business. The fact that some of the hyperlinks in this case relate to direct competitors of Complainant and all relate to “.com.au” domain names or businesses is highly suggestive of Respondent acting in a deliberate way to divert attention from Complainant’s domain names and/or for the purposes of enticing Complainant to purchase the Domain Name at an inflated price. In fact, the hyperlinks relating to Complainant's competitors allegedly did not appear until after there were communications with the previous owner of the Domain Name, “Michele Dinoia” or “Mike” (“Dinoia”) in May 2011, relating to the possible purchase of the Domain Name by Complainant. Complainant argues that the promotion of these hyperlinks serves to misleadingly divert consumers away from Complainant’s domain names and/or tarnish Complainant’s trademarks. Further, Complainant has submitted evidence of Respondent’s website, to which the Domain Name resolves, providing that:
“The Sponsored Listings displayed above are served automatically by a third party. Neither the service provider nor the domain owner maintains any relationship with the advertisers. In case of trademark issues please contact the domain owner directly (contact information can be found in whois)”.
According to Complainant, this statement demonstrates that Respondent is not using the Domain Name for a bona fide offering of goods and services.
In the circumstances, Complainant submits that Respondent has no rights or legitimate interests in respect of the Domain Name; that although there are PPC links on the website to which the Domain Name resolves, there is no evidence that Respondent is using or preparing to use the Domain Name or a name corresponding to it in connection with a bona fide offering of goods or services; and Respondent is not making a legitimate noncommercial or fair use of the Domain Name. Instead, Respondent is misleadingly diverting consumers away from Complainant’s domain names and tarnishing Complainant’s trademarks and domain names.
(iii) Registered or used in bad faith
Complainant’s contends that, although the Domain Name was initially registered before Complainant’s trademarks were registered, Respondent has nevertheless registered and used the Domain Name in bad faith for the following reasons:
- Respondent is the owner of approximately 17,786 domain names as of July 30, 2014 and has been the subject of numerous disputes under the Policy. According to the reverse WhoIs search, Respondent actually acquired the Domain Name from its former owner on June 6, 2012, a date after Complainant had acquired its registered trademark rights.
- Under the Policy and the Rules, it is not essential that Complainant’s trademark be registered before the Domain Name in order to demonstrate that the Domain Name was registered and is being used in bad faith. In any event, Respondent did not acquire the Domain Name until June 6, 2012, which is approximately two years after Complainant’s trademarks were registered and approximately one year after the former owner tried to sell the Domain Name at a highly inflated price to Complainant, well exceeding the reasonable out-of-pocket expenses for registering and maintaining the Domain Name. The relevant date for purposes of determining bad faith is the date the Domain Name was acquired, which is June 6, 2012, not when it was initially registered. According to Complainant, the general rule established by UDRP panels is that a subsequent acquirer of a domain name is held to have “registered” that domain name for purposes of the Policy as of the date of acquisition of the registration rights.
Complainant states that before it communicated with the former owner of the Domain Name, Dinoia, in May 2011, the website to which the Domain Name resolved included pictures of a marine craft similar to a Ski-Doo watercraft. However, since the communications in May 2011, the Domain Name has now resolved to a website that contains PPC advertisements for third parties, including direct competitors of Complainant located in Australia. Complainant has submitted evidence of the email correspondence with the former owner of the Domain Name. Complainant also observes that the former owner, Dinoia, is referred to in numerous domain name disputes, where the relevant panels have found that he utilizes various domain names for PPC revenue and otherwise did not have a legitimate use for the relevant domain names and/or used the particular domain name in bad faith. Complainant alleges that Dinoia may also be known by or related to a Gioacchino Zerbo (Zerbo), who has also been the subject of many domain name disputes. Complainant alleges there are numerous cases where domain names have been transferred between Respondent, Dinoia and Zerbo, presumably to make it more difficult for complainants to take dispute proceedings against them. Dinoia has been held by a UDRP panel to have engaged in cyberflight when a domain name dispute was raised.
Complainant believes that Respondent purchased the Domain Name from Dinoia in the knowledge that Complainant had trademark rights in respect of the word “skiddoo”, noting that Complainant’s trademarks were registered in 2010, and the correspondence regarding the possible purchase of the Domain Name by Complainant occurred in May 2011. The fact that the hyperlinks on the website (to which the Domain Name resolved) changed from being references to marine craft to Australian travel and accommodation businesses, including direct competitors of Complainant, is further evidence of Respondent’s knowledge of Complainant’s trademarks when it acquired the Domain Name from Dinoia, and thus demonstrates bad faith when it registered the Domain Name.
Complainant argues that Dinoia sought to sell the Domain Name “for the highest you [Complainant] will pay” and, to this end, rejected an offer of USD 2,000 for the Domain Name, which was far in excess of the actual out-of-pocket costs of registering and maintaining the Domain Name. There have been other cases where Dinoia has transferred domain names to Respondent, which demonstrates that Dinoia had dealings with Respondent and is well known to Respondent. Finally, Respondent uses “robots.txt” to prevent website content being accessed in an online archive form. This may be indicative of the use of the website in bad faith by Respondent. Having regard to all of the above circumstances, Complainant submits that Respondent registered and is using the Domain Name in bad faith.
B. Respondent Respondent contends that it registered the Domain Name in 2003, more than 12 years ago, and that all of Complainant’s trademarks were registered years after Respondent registered the Domain Name. According to Respondent, this is fatal with regard to Complainant’s allegations of bad faith. Respondent asserts that Complainant tried to acquire the Domain Name from Respondent before filing the present dispute, and that this case represents Complainant’s “plan B” to obtain the Domain Name. Respondent therefore requests the Panel to declare Complainant responsible of Reverse Domain Name Hijacking.
(i) Identical or confusingly similar
Respondent urges that the term “skiddoo” is generic and descriptive and a commonly used slang term referring to deplacement, travel or evasion. Complainant’s submission that “skiddoo” is a made-up word from the American slang “skidoo” is therefore false. The “23 skiddoo” phrase appears to be related to the Flatiron building in New York, one of that city’s characteristic buildings built in 1903.
Respondent contends that for a trademark composed of common or descriptive terms, which is eligible for trademark registration when in combination with other figurative elements, the trademark registration does not confer any monopolistic right as to the common or descriptive element. Therefore, according to Respondent, there cannot be any confusion as between the trademark SKIDDOO CLICK AWAY and the word “skiddoo”, because the latter does not and cannot constitute the distinctive element of the trademark, as it is descriptive of travel services. There is no possible confusion when the part of the trademark concerned in the dispute is composed of a common or descriptive term. Therefore, the first element of the Policy is not met.
(ii) Rights or legitimate interests
Respondent states that Complainant’s trademark, as well as its domain names, were registered starting in 2010. At that time, the Domain Name had been registered for more than 7 years by Michele Dinoia. Respondent claims that the changes in the registrant records submitted in evidence by Complainant reflect several organizations used and owned by a single proprietor, Michele Dinoia, who first registered the Domain Name in 2003.
Respondent refers to paragraph 3.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) to argue that changes in registration data should not necessarily be deemed to constitute a new registration where evidence establishes an unbroken chain of underlying ownership by a single entity or within a genuine conglomerate, and it is clear that any change in WhoIs registrant data is not being made to conceal an underlying owner’s identity for the purpose of frustrating assessment of liability in relation to registration or use of a domain name.
According to Respondent, there has been no substantial change in the ownership of the Domain Name, as well as all other domain names held by Michele Dinoia through his CDN Properties trust located in Panama, of which Michele Dinoia is the trustee and settlor according to a general power of attorney. As a consequence, the analysis of any bad faith registration and use should be viewed from June 4, 2003.
Respondent questions whether Complainant was aware of several UDRP decisions in which Respondent was successful and permitted to retain the domain name registrations in respect of descriptive and common words. Respondent maintains that using generic and descriptive terms as domain names for their ability to generate Internet traffic is a legitimate Internet business.
(iii) Registered or used in bad faith
As to registration or use in bad faith, Respondent again emphasizes that the Domain Name was registered many years prior to Complainant’s acquisition of trademark rights. Respondent states that it was Complainant who attempted to purchase the Domain Name from Respondent, and not Respondent reaching out to Complainant. Respondent never initiated any of the negotiations between the parties. Moreover, Complainant omitted to reference certain negotiations dating from 2010, prior to those referenced in the Complaint dating from 2011. In the earlier negotiations, Complainant also unsuccessfully attempted to purchase the Domain Name from Respondent.
Respondent maintains that it is a legitimate market player in the domain name industry and claims to be victim of deliberated attacks by trademark owners with respect to generic terms. Respondent again emphasizes that “skiddoo” is a generic and descriptive term with regard to travel and touristic services, and therefore prior UDRP cases involving other generic terms should be persuasive to the Panel. Respondent argues that this case is a “Plan B” used by Complainant following a failure of commercial negotiations between the parties, and Complainant has attempted to unfairly stigmatize Respondent.
Finally, Respondent asserts that the Panel should make a finding of Reverse Domain Name Hijacking against Complainant. Respondent argues that Complainant deliberately tried to mislead the Panel by providing a series of suggestive arguments derived by emphasizing certain prior UDRP cases involving Respondent and artificially connecting them in an attempt to substantiate bad faith findings toward Respondent. Respondent considers the Complaint and this kind of conduct to be abusive. Respondent emphasizes that Complainant having failed to acquire the Domain Name through commercial negotiations in 2010, relied on a third party to offer USD 2,000 to Respondent in 2011. After that contact also failed, this case was Complainant’s “plan B”.
C. Complainant’s Supplemental Submission The Panel has summarized those portions of Complainant’s supplemental submission that do not repeat arguments previously made. Complainant emphasizes that Respondent did not register the Domain Name in 2003 because it was owned by another entity at that time. Michele Dinoia (“Dinoia”) did not become the registrant of the Domain Name until about June 2, 2009, according to the reverse WhoIs search submitted into evidence. It appears that the previous registrants of the Domain Name were “szk.com” from about February 2008 to June 2, 2009 and Hand Technologies Inc. from about 2001 to February 5, 2008. The Domain Name was transferred from Dinoia to Respondent on June 6, 2012.
Complainant notes that Respondent is a company incorporated in Panama while Dinoia is a natural person resident in Italy. The Domain Name has been transferred from one legal person to another and from one jurisdiction to another. The date of registration for the purposes of assessing a respondent’s legitimate interests in a domain name or bad faith should be the date that the domain name is acquired. Complainant refers to a prior UDRP case where even though the respondent, which was an incorporated company, was controlled by the previous registrant, who was a natural person, the transfer to the respondent was considered a fresh registration.
Based on this analysis, the date that Respondent acquired the Domain Name from the previous owner was after Complainant’s trademarks were registered and, by Respondent's own admissions, after it became aware of and communicated with Complainant. Complainant further disputes that there is an “unbroken chain of underlying ownership by a single entity or within a genuine conglomerate” as alleged by Respondent. The power of attorney submitted into evidence by Respondent does not evidence that Dinoia settled the Domain Name (or any other domain name for that matter) on the CDN Properties trust located in Panama or that any such trust exists or that he is a trustee of any such trust. All that the power of attorney evidences is that Dinoia may have been appointed as an attorney under that document.
Further, when Complainant submitted its Complaint, it had no knowledge of the existence of general power of attorney or any alleged trust, which may or may not have been established, prior to commencing these proceedings. The only information available on the public record is that which is contained in a WhoIs search for the Domain Name and that search unambiguously discloses that the owner/registrant of the Domain Name has changed a number of times; that Respondent did not acquire the Domain Name until June 6, 2012; and that all the contact details of Respondent are completely different to those of the previous owners/registrants, including Dinoia. Complainant also re-emphasizes that website to which the Domain Name resolved changed from containing images and references to marine craft to hyperlinks to direct competitors of Complainant.
6. Discussion and Findings Paragraph 15(a) of the Rules instructs the Panel to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Under paragraph 4(a) of the Policy, Complainant must prove each of the following:
(i) the Domain Name is identical or confusingly similar to Complainant’s marks; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel must first determine whether the Domain Name is identical or confusingly similar to Complainant’s SKIDDOO CLICK AWAY trademarks. Complainant has submitted evidence to show that it owns trademark registrations for its mark in a number of jurisdictions including Australia, New Zealand, the United Kingdom and the United States. The priority date associated with these trademarks is May 18, 2010.
The Panel finds that the Domain Name is confusingly similar to Complainant’s trademarks. The Panel observes that in accordance with paragraph 1.2 of WIPO Overview 2.0, the first element of the UDRP sets a threshold test which serves essentially as a standing requirement. The threshold test for confusing similarity under the UDRP involves a simple comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion.
Here, the Domain Name contains a single word, “skiddoo”, in combination with the “.com” gTLD suffix (which is typically not considered for purposes of the confusing similarity test). The Panel observes that the word “skiddoo” has a somewhat descriptive meaning: to depart or to leave somewhere quickly. However, the word is used very infrequently in the modern English language. This makes the word more distinctive in the context of Complainant’s use of the word in its trademarks, along with the descriptive words “click away”. The term “skiddoo” is the distinctive element in Complainant’s SKIDDOO CLICK AWAY trademarks and the Domain Name is identical to this term. The descriptive words “click away” do no overcome the confusing similarity between Complainant’s trademark and the Domain Name.
Accordingly, the Panel finds that the first element of paragraph 4(a) of the Policy is satisfied.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(a)(ii) of the Policy, Complainant must prove that Respondent has no rights or legitimate interests in respect of the Domain Name. A complainant is normally required to make out a prima facie case that a respondent lacks rights or legitimate interests in a domain name. Once such prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. A respondent may establish rights or legitimate interests in a domain name by demonstrating (in accordance with paragraph 4(c) of the Policy) any of the following:
(i) that the respondent has made preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services prior to the dispute; or
(ii) that the respondent is commonly known by the domain name, even if it has not acquired any trademark rights; or
(iii) that the respondent intends to make a legitimate, non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.
Here, Complainant has made a prima facie showing that Respondent has no rights or legitimate interests in respect of the Domain Name. The record discloses that Complainant has not licensed, authorized or otherwise permitted Respondent to use Complainant’s trademarks, nor is Respondent otherwise known by the Domain Name. The word “skiddoo” has something of a descriptive meaning but Respondent has not put the Domain Name to use in any manner connected with its descriptive meaning, such as in connection with a legitimate, noncommercial or fair use. Instead, it is undisputed that the Domain Name has resolved to a webpage featuring PPC links, most of which link to competitors of Complainant in Australia. Respondent maintains that it is a legitimate company in the domain name industry and that using generic terms as domain names for their ability to generate Internet traffic is a legitimate Internet business. However, on the record in this case, the Panel finds that Respondent’s use is not legitimate because the Domain Name is used to link to a webpage with PPC links to competitors of Complainant located in Australia. This type of use does not support the establishment of any rights or legitimate interests in the Domain Name.
Accordingly, Complainant has satisfied the second element of paragraph 4(a) of the Policy.
The third element of paragraph 4(a) of the Policy requires that Complainant demonstrate that Respondent registered and is using the Domain Name in bad faith. The Panel finds that although the current use of the Domain Name supports a finding of bad faith use, the record does not support a finding of bad faith registration.
Although Respondent emphasizes that “skiddoo” is a common and descriptive term, the Domain Name links to a webpage featuring PPC links, most of which refer to Complainant’s competitors and which appear to focus on Australian businesses, even though Respondent is an entity located in Panama with an alleged connection to persons or entities located in Italy. This geographic focus on Australia (out of the many possible countries of the world) with regard to the PPC links on the Domain Name’s webpage would appear to reflect a deliberate effort to target Complainant’s trademark and business, and to misleadingly divert consumers for Respondent’s own commercial ends. Respondent did not directly respond to these allegations or refute them in its Response. Complainant also claims that prior to May 2011 when Complainant made contact with Respondent in an attempt to purchase the Domain Name, the Domain Name resolved to a webpage that included pictures of a marine craft similar to a Ski-Doo watercraft. This previous use of the Domain Name was apparently targeting the trademark of another company, Ski-Doo, which makes snowmobiles and watercraft. Thus, whether targeting Complainant’s trademark or another company’s trademark, Respondent (or the Domain Name’s previous owners allegedly related to Respondent) has used the Domain Name for the bad faith purpose of attracting, for commercial gain, Internet users to their website, by creating a likelihood of confusion with Complainant’s trademark (or previously that of the Ski-Doo company’s trademark). The Panel agrees with those UDRP panels that have found that a registrant cannot disclaim responsibility for the various links on a website linked to a disputed domain name where they are concerned either with the complainant or with the field of commercial activity in which the complainant operates. Grundfos A/S v. Texas International Property Associates, WIPO Case No. D2007-1448.
However, there is a second fundamental issue in this case – whether the Domain Name was registeredin bad faith. The Domain Name was initially registered in June 2003, well before Complainant had acquired its trademark registrations. At that time, there could be no targeting of Complainant’s trademark by the registrant of the Domain Name. Further, there is no case to be made that the registrant, at that time, registered the Domain Name with intent to sell it to Complainant, to disrupt Complainant’s business, or to prevent Complainant from registering its trademark in a domain name.
Complainant, however, has submitted evidence that Respondent acquired the Domain Name on or about June 6, 2012, a date which is after Complainant’s trademark registrations originating in May 2010. Prior to June 2012, the Domain Name was held by Michele Dinoia of Italy (at least from as early as 2009, a date which is also prior to Complainant’s trademark registrations). After June 2012, the Domain Name was held, according to the WhoIs details, by Respondent CDN Properties Incorporated located in Panama City, Panama. In response to Complainant’s allegation that ownership of the Domain Name was transferred in June 2012 such that this acquisition should be considered a “fresh” registration, Respondent has stated that CDN Properties Incorporated is a Panamanian trust entity owned by Michele Dinoia, who is the trustee and settlor of the trust. Respondent has submitted evidence of a relevant power of attorney.
The Panel is of the view, based on the evidence in the record, that Dinoia transferred the Domain Name from himself to this Panamanian entity that he owns. Complainant acknowledges that it is aware of the relationship between Dinoia, Respondent and certain other entities, and that similar transfers of domain names between these entities have taken place in other cases. Although Complainant has argued that this should be treated as a fresh registration, the Panel disagrees. Simply because the transfer from Dinoia to Respondent took place after Complainant had already unsuccessfully attempted to purchase the Domain Name from Respondent is not enough to treat the transfer as if it was between two unrelated third-parties. In this regard, the Panel is persuaded by paragraph 3.7 of the WIPO Overview 2.0, which provides:
Panels have tended to the view that formal changes in registration data are not necessarily deemed to constitute a new registration where evidence clearly establishes an unbroken chain of underlying ownership by a single entity or within a genuine conglomerate, and it is clear that any change in WhoIs registrant data is not being made to conceal an underlying owner’s identity for the purpose of frustrating assessment of liability in relation to registration or use of the domain name.
The Panel concludes that although Respondent’s use of the Domain Name to resolve to a webpage with PPC links to Complainant’s competitors is clear bad faith use, the registration of the Domain Name by Respondent, which pre-dated Complainant’s acquisition of trademark rights, was not at least on the limited record before the Panel1 made in bad faith.
Accordingly, Complainant has failed to satisfy the third element of the paragraph 4(a) of the Policy.
D. Reverse Domain Name Hijacking
Respondent has requested that the Panel make a finding of Reverse Domain Name Hijacking against Complainant. The Panel rejects Respondent’s request as inappropriate, particularly in this case where, although Respondent may have registered the Domain Name innocently and without targeting Complainant and its trademarks, it has since used the Domain Name in bad faith, as described above.
7. Decision For the foregoing reasons, the Complaint is denied.
Christopher S. Gibson
Date: October 24, 2014
1 The question as to whether, as Complainant alleges, Respondent’s alias reflects a genuine single conglomerate or is rather an attempt to frustrate discovery in this case as to the chain of ownership is a question beyond the scope of the Policy insofar as the present proceeding is concerned.