Administrative panel decision reliance Industries Limited V. Florian Britsch




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ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

Reliance Industries Limited v. Florian Britsch

Case No. D2015-1719



1. The Parties

The Complainant is Reliance Industries Limited of Mumbai, India, represented by Anand & Anand, India.


The Respondent is Florian Britsch of Berlin, Germany.


2. The Domain Name and Registrar

The disputed domain name (the “Disputed Domain Name”) is registered with Tucows.com Co. (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 26, 2015. On September 28, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 28, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is the registrant of the Disputed Domain Name and the Respondent’s contact information.


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 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on October 5, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was October 25, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 26, 2015.
The Center appointed Tee Jim Tan S.C. as the sole panelist in this matter on November 4, 2015. 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 in this administrative proceeding is Reliance Industries Limited, a company incorporated in India, with its principal place of business in Mumbai, India, and business in other parts of India and several other countries. The Complainant is India’s largest private sector enterprise, with businesses spanning various industries, including oil and gas exploration and production, petroleum refining and marketing, petrochemicals, retail and telecommunications. In the Complainant’s group of companies is Reliance Payment Solutions Limited, which has developed a digital payment system known as JIO MONEY.


The Complainant’s JIO MONEY system has already been launched in some of the Complainant’s facilities, and is due to be launched across all mobile platforms soon. News regarding the JIO MONEY mobile wallet services was reported as far back as September 2013.
The Complainant is the registered proprietor of the trade mark JIO in India:
(1) JIO, Trade Mark No. 224760, dated December 9, 2011, under class 9;
(2) JIO, Trade Mark No. 2247360, dated December 9, 2011, under class 38.
The Complainant has also applied to register several other marks containing JIO in various classes.
In addition, the Complainant has applied to register the trade mark JIO MONEY in India:


Trade mark

Application No.

Application Date

Class

Status

Jio Money


2787812

07/08/2014

9

Pending




2791501

14/08/2014

9

Pending




2791524

14/08/2014

9

Pending

Jio Money

2760418

23/06/2014

36

Pending

Jio Money

2787813

07/08/2014

36

Pending

Over 4,600 domain names incorporating the JIO mark have also been registered by the Complainant. They include , , and . Among these domain names are also those comprising the JIO MONEY mark, such as , , , , , , and .

The Respondent is the registrant of the Disputed Domain Name, which resolves to a parking page at the time of the Complaint filing. The Disputed Domain Name was registered on July 13, 2015.







5. Parties’ Contentions

A. Complainant

The Complainant contends that:


(1) The Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(2) The Respondent has no rights or legitimate interests in the Disputed Domain Name; and
(3) The Disputed Domain Name has been registered and is being used in bad faith.
The Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights
The Complainant submits principally that:
(1) The Disputed Domain Name incorporates in entirety the Complainant’s JIO mark. Further, the Disputed Domain Name, including the generic Top-Level Domain (“gTLD”), is identical to the JIO MONEY mark, in which the Complainant claims common law rights and for which applications have been made for its registration.
(2) The “.money” gTLD is promoted as an ideal domain name for companies offering services related to money transactions, such as the Complainant. It is likely that Internet search users, on being led to the Respondent’s website at the Disputed Domain Name, will be confused into believing that the website is associated with the Complainant.
(3) Further confusion could result in the event that the Respondent resolves to a website offering services identical or similar to those offered by the Complainant.
(4) Given the nature of online money transactions, the Disputed Domain Name could well be used for nefarious purposes to defraud innocent users.
The Respondent has no rights or legitimate interests in the Disputed Domain Name
The Complainant submits principally that:
(1) The Respondent is not a licensee of the Complainant and has not obtained permission or consent from the Complainant to use the JIO or JIO MONEY mark.
(2) The Respondent is not commonly known by the Disputed Domain Name.
(3) The Respondent has not demonstrated any preparation to use the Disputed Domain Name in connection with the bona fide offering of goods or services.
The Disputed Domain Name was registered and is being used in bad faith
The Complainant submits principally that:
(1) The Respondent’s registration of the Complainant’s well known mark as a domain name, which the Respondent must reasonably have been aware of, is in itself sufficient to prove bad faith.
(2) The Respondent’s use of the Disputed Domain Name without offering or making preparation to offer any bona fide goods or services amounts to mala fide behaviour.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.




6. Discussion and Findings

To succeed, the Complainant must prove the three elements set out in paragraph 4(a) of the Policy:


(1) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(2) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(3) the Disputed Domain Name has been registered and is being used in bad faith.
In accordance with paragraph 14(a) of the Rules, if the Respondent does not submit a Response, the Panel shall, in the absence of exceptional circumstances, decide the dispute based on the Complaint. In this instance, the Panel has neither received the Respondent’s Response nor noted any exceptional circumstances that would take the present case out of the abovementioned rule. The Panel thus comes to its findings based on the Complaint.

A. Identical or Confusingly Similar

The Complainant has submitted evidence of its trade mark registrations for the JIO mark and trade mark applications for the JIO MONEY mark. The Complainant further presented evidence of unregistered rights in both marks.


Paragraph 1.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) offers helpful guidance as to whether there is confusing similarity between the Complainant’s marks and the Disputed Domain Name. The test is described as a straightforward visual or aural comparison of a complainant’s mark with the disputed domain name. The top-level suffix is generally disregarded, unless the suffix forms part of the trade mark in question.
The Panel notes that the Disputed Domain Name incorporates the JIO mark in its entirety. Moreover, the Disputed Domain Name, including the “.money” gTLD, is identical to the JIO MONEY mark. In the Panel’s view, it is likely that the public and Internet users would be misled to believe, and to act on the belief, that the Disputed Domain Name belongs to the Complainant or is in some way associated with the Complainant. Based on a side-by-side comparison, the Panel considers that the Disputed Domain Name is identical or confusingly similar to the Complainant’s JIO and JIO MONEY marks.
In the circumstances, the Panel is satisfied that the first element under the Policy is made out by the Complainant.

B. Rights or Legitimate Interests

Based on the evidence submitted, the Complainant has neither licensed nor authorised the Respondent to use its trade mark. The evidentiary burden thus shifts to the Respondent to rebut the prima facie case established by the Complainant based on available evidence.


The Respondent did not submit a Response. While the Respondent’s default does not automatically result in a decision in favour of the Complainant, the Panel is entitled, under paragraph 14(b) of the Rules, to draw such negative inferences as it considers appropriate.
There is no evidence that the Respondent is an individual who is commonly known by the Disputed Domain Name. The Respondent was also not shown to be, before receiving notice of the dispute, using or demonstrating preparations to use the Disputed Domain Name or a name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services. It is further noted that the Respondent has been holding the Disputed Domain Name passively, and that there has been no legitimate, noncommercial or fair use of the Disputed Domain Name.
In addition, as in the case of Pomellato S.p.A v. Richard Tonetti, WIPO Case No. D2000-0493, the Panel infers from the Respondent’s lack of response a lack of a legitimate interest. Default is inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights.
In the circumstances, the Panel is left with little option but to find this second element under the Policy made out by the Complainant.

C. Registered and Used in Bad Faith

Under paragraph 4(a)(iii) of the Policy, the Complainant must prove that the Disputed Domain Name has been registered and is being used in bad faith. Such bad faith may be proved by any of the following non-exhaustive circumstances set out in paragraph 4(b) of the Policy:


(1) circumstances indicating that the Respondent has registered or has acquired the Disputed Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Name registration to the Complainant who is the owner of the trade mark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the Disputed Domain Name; or
(2) the Respondent has registered the Disputed Domain Name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(3) the Respondent has registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor; or
(4) by using the Disputed Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.
The Panel notes that there has been no active attempt to sell the Disputed Domain Name or to contact the Complainant with regard to the same. Nevertheless, the examination of whether there is bad faith on the part of the Complainant in registering the Disputed Domain Name is one that entails a global assessment of all the circumstances of the case.
In the present case, the Disputed Domain Name currently resolves to a parking page bearing an invitation to use the services of “Check Domain”, a domain name search and sale business. Taking guidance from paragraph 3.8 of the WIPO Overview 2.0, a registrant is generally taken to be responsible for any content appearing on the website bearing the disputed domain name. This is so even if the registrant has no direct control over the content, and the content appears on an “automatically” generated basis. The registrant does not have to have profited directly from the content for there to be a finding of bad faith – profit or “commercial gain” on the part of a third party, such as a domain name parking service used by the registrant, would suffice. The registrant may rebut such an inference by showing good faith attempt towards preventing advertising or links which profit from trading on third party trade marks. In this case, the Respondent has not made such an attempt.

Upon an assessment of the circumstances, the Panel is of the opinion that the advertisement would have resulted in a commercial gain, at least on the part of “Check Domain”. As there is no evidence of any good faith attempt by the Respondent to prevent such use and monetisation, the Panel is satisfied that there has been an attempt to attract for commercial gain Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark.


By failing to file a Response, the Respondent did not take the opportunity to raise any circumstances that could indicate that its registration of the Disputed Domain Name was not in bad faith. In the Panel’s view, the lack of a Response indicates bad faith on the part of the Respondent. There is no reason for the Respondent’s silence if the registration was legitimate and in good faith.
The Panel therefore finds that the Disputed Domain Name was registered and is being used in bad faith. The third element under the Policy is therefore made out by the Complainant.


7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name be transferred to the Complainant.



Tee Jim Tan S.C.

Sole Panelist



Date: December 2, 2015



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