Société des Participations du Commissariat à l’Energie Atomique v. David Morton
Case No. D2007-0679
1. The Parties
The Complainant is Société des Participations du Commissariat à l’Energie Atomique, Paris, France, represented by Cabinet Dreyfus & Associés, France.
The Respondent is David Morton, San Jose, California, United States of America.
2. The Domain Name and Registrar
The disputed domain name <arevachallenge.com> (the “Domain Name”) is registered with NamesDirect.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 7, 2007. On May 9, 2007, the Center transmitted by email to NamesDirect.com a request for registrar verification in connection with the Domain Name. On May 9, 2007, NamesDirect.com 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 (the “Policy”), 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 May 21, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was June 10, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 12, 2007.
The Center appointed Warwick Smith as the sole panelist in this matter on June 21, 2007. 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.
In view of the Respondent’s failure to file a response, the Panel has checked whether the Center has discharged its responsibility to notify the proceeding to the Respondent in accordance with the Rules, paragraph 2(a). The Panel is satisfied that it has.
4. Factual Background
The following uncontested facts are summarized from the Complaint.
The Complainant is a world leader in the nuclear power field, and a major actor in the field of electricity transmission and distribution. It is also the most important global player in the field of energy equipment. It deals with government and state-owned companies as well as private businesses, and employs more than 61,000 people in 41 countries. It has a sales network in more than 100 countries. One of those countries is the United States of America, where the Complainant is the number one nuclear energy vendor and a key player in the distribution and transmission of electricity.
The Complainant is commonly known by the name “AREVA”.
The Complainant’s Trade Marks
The Complainant has furnished proof that it holds numerous registrations of the trade mark AREVA. It is not necessary to refer to them all. In the United States of America, the Complainant is the proprietor of the word mark AREVA in International Classes 1, 4, 6, 7, 9, 11, 19, 35, 36, 37, 38, 39, 40, 41 and 42, with effect from December 7, 2001. The Complainant is also the registered proprietor of the word mark AREVA in the United States of America, in respect of a range of additional goods and services, under a separate registration having effect from July 16, 2004.
In addition to the United States registrations, the Complainant holds a number of international registrations for the mark AREVA under the Madrid Protocol. Those registrations respectively have effect from November 28, 2001, February 5, 2002, and July 16, 2004.
The Complainant also claims to be the proprietor of AREVA CHALLENGE trade marks throughout the world. However, the Complainant has not produced evidence of any registrations for that particular mark. Instead, the Complainant claims common law trade mark rights in AREVA CHALLENGE. In support of the claim to common law trade mark rights, the Complainant refers to the following:
(i) It registered the domain name <areva-challenge.com>, on March 31, 2006.
(ii) The name “AREVA Challenge” is well-known internationally as the name of the French entry in the 32nd America’s Cup regatta recently sailed at Valencia in Spain. The Complainant has produced an extract from its website at <areva-challenge.com>, providing some very brief background on the AREVA Challenge America’s Cup entry. The extract shows that the origin of the AREVA Challenge campaign was a 2002 meeting between two entrepreneurs, one of whom had been a successful competitor in an earlier America’s Cup regatta. The website refers to “the syndicate that became AREVA Challenge in April 2006 …”.
(iii) The Complainant filed an application to register the mark AREVA CHALLENGE in the United States of America on July 17 2006. The application covers goods and services in International Classes 25, 36 and 41, and it is still pending.
The Complainant’s Domain Names
As noted above, the complainant registered the Domain Name <areva-challenge.com> in March 2006. In addition, the Complainant operates a website at <areva.com> (registered April 13, 1998). The Complainant is also the proprietor of the Domain Names <areva.info>, <areva.net>, <areva.org>, <areva.biz>, and <areva.eu>, as well as numerous country code “areva” registrations. The Complainant registered <areva.us> on August 2, 2002.
The Respondent and the Domain Name
The Domain Name was first registered on April 3, 2006. It currently resolves to the website of Greenpeace International at “www.greenpeace.org”.
The Complainant has produced web pages from this website, printed on May 4, 2007. The website contains a reference to “risky new nuclear reactors” under construction in Europe, and goes on: “but not on this day. Not if we can help it. Activists are occupying cranes and using trucks to block the entrance at the construction site of a dangerous new type of reactor in France.”
The Complainant asserts that the Domain Name was originally registered by one Luc Andre. The Complainant has produced a statement from a bailiff instructed by the Complainant, a M. Eric Albou, detailing certain investigations carried out by M. Albou on or about April 18, 2007. Although this document was in the French language (with no translation supplied), the Panel was able to understand it sufficiently to observe that it appears to confirm that M. Luc Andre was at that time (i.e., mid-April 2007) registered as proprietor of the Domain Name, and that the Domain Name then resolved to a French language page at the Greenpeace website at “www.greenpeace.org”. It appears also from the material provided by M. Albou that at the time of his mid-April 2007 investigations, the Domain Name was being offered for sale for €35,000. A web page dated April 17, 2007 produced by M. Albou from the Greenpeace France website, contained (in English) the following:
M. Albou also produced a copy of a web page to which the Domain Name resolved on April 16, 2007. This page prominently stated: “Domain for Sale”: €35,000”. It also contained references to “Areva Challenge”, and featured what appeared to be yacht sails prominently displaying one of the Complainant’s AREVA logo marks.
Pre-Commencement Correspondence
The Complainant’s representative wrote to M. Andre on April 19, 2007. Again, the copy of this letter is in French, without translation. Nevertheless, the Panel has been able to follow the letter without difficulty, and there is no need to call for any translation. The letter referred to the Complainant’s rights in the mark AREVA, and noted that M. Andre had registered and used the Domain Name. The letter also referred to the reproduction of the AREVA logo, the advertised sale at €35,000, and the redirection to the Greenpeace website. The letter alleged various breaches of the French Intellectual Property and Civil Codes, and sought the voluntary transfer of the Domain Name to the Complainant. The letter went on to seek certain undertakings with regard to any future use of the Complainant’s AREVA mark.
The letter from the Complainant’s representative did not make any reference to rights in an AREVA CHALLENGE mark.
A Whois report on the Domain Name which the Complainant produced, shows that the details were updated on April 24, 2007. It appears that on that date the Domain Name was transferred by M. Andre to the Respondent.
That is substantially confirmed by an email from the Respondent dated April 28, 2007, produced by the Complainant. In this email the Respondent enquired if the Complainant would be interested in buying the Domain Name. The Respondent said that he had recently purchased the Domain Name on eBay. He said that the website was for sale, but: “… before putting it up for sale directly on the web, I thought it would be the right moment to offer you a first chance of purchase. Currently the price is 35,000 Euros. Please let me know if your interested”
The email was addressed to Ms. Hélenè Legras, who the Respondent said he had identified as the administrative contact for the Complainant’s <areva-challenge.com> domain name.
5. Parties’ Contentions
A. Complainant
The Complainant contends:
1. The Domain Name is identical to the AREVA CHALLENGE mark in which the Complainant has rights, or is confusingly similar to the AREVA mark in which the Complainant has rights. The generic word “challenge” added to the Complainant’s AREVA mark, only suggests that the services and goods marketed are those of the trade mark holder, with a content about a challenge, such as a boat race (citing Nokia Corporation v. nokiagirls.com; WIPO Case No. D2000-0102, Microsoft Corporation v. SL Mediaweb; WIPO Case No. D2004-0513, and Caesars World, Inc. v. Alaiksei Yahorau; WIPO Case No. D2004-0513).
2. The Respondent has no rights or legitimate interests in respect of the Domain Name, for the following reasons:
(a) The Complainant has not authorized the Respondent to use and register the Complainant’s marks, or to seek the registration of any domain name incorporating those marks.
(b) The Respondent is not affiliated with the Complainant in any way.
(c) The Respondent has never used the term “AREVA”, or the term “AREVA Challenge”, in any way.
(d) The Respondent is not known by either of the names “AREVA”, or “AREVA Challenge”, or any similar term.
(e) The Respondent’s conduct is designed to harm the reputation of the Complainant. The Domain Name has resolved to official websites operated by the Greenpeace Organization, which has a policy of fighting the use of nuclear energy. The strict reproduction of the well known trade mark AREVA CHALLENGE constitutes an obvious intent to misleadingly divert Internet consumers. Because the Domain Name is identical to the Complainant’s famous marks, the Respondent cannot pretend that it was intending to develop a legitimate activity.
3. The Domain Name was registered and is being used in bad faith, for the following reasons:
(a) The word “AREVA” does not have any meaning in the English language, and the Respondent had no bona fide reason to choose this word as part of a domain name.
(b) The Respondent’s intention has been to profit from the registration, and to tarnish the reputation of the Complainant.
(c) The Respondent was aware of the Complainant and its AREVA and AREVA CHALENGE marks when he registered the Domain Name.
(d) Pointing the Domain Name to the Greenpeace website, and contacting the Complainant directly with an offer to sell the Domain Name for €35,000, are, in combination, indicators of the Respondent’s bad faith.
(e) The Respondent has also endeavoured to harm the Complainant’s goodwill in its famous mark. It has intentionally attracted Internet users to a Greenpeace website, in order to tarnish the Complainant’s reputation.
(f) The continued existence of the Domain Name in the name of the Respondent will erode the goodwill in the Complainant’s mark, and create confusion: people accessing the Internet would associate the Domain Name with the Complainant as the trade mark owner.
(g) The former registrant of the Domain Name changed the registration and transferred the Domain Name to the Respondent, the day after receiving the cease and desist letter sent by the Complainant’s representative. Both registrar and registrant were changed as a result of that letter. This is evidence of cyberflight (citing British Broadcasting Corporation v. Data Art CorporationWIPO Case No. D2000-0683, and Kirbi AG v. companyrequire/KKandpool.com, WIPO Case No. D2004-0359).
(h) National laws and policies which are protective of free speech and allow a trade mark to be used in the content of a website, do not permit the use of that trade mark as a domain name (see Covance Inc. and Covance Laboratories Limited v. The Covance Campaign, WIPO Case No. D2004-0206).
(i) The Policy does not permit the use of a mark of another party as a domain name, even where the Respondent has a website that is purely concerned with commentary or opinion (citing The New York Times Company v. New York Internet Services, WIPO Case No. D2000-1072). The website content is immaterial if the domain name is identical to a complainant’s trade mark (citing Covance, Inc.). Even though an individual may have the right to establish a commentary or opinion site regarding a company, and to mention the company’s mark on that website, the individual is not entitled to use the mark as the address for the website (citing The New York Times Company, and E. & J. Gallo Winery v. Hanna Law Firm, WIPO Case No. D2000-0615). To similar effect, see Arnold Clark Automobiles Limited v. Thomas (aka Tam) Coughlan, WIPO Case No. D2002-0909 – freedom of speech rights guaranteed under the First Amendment to the United States Constitution do not confer any right or legitimate interest in the use of a domain name which is identical to a complainant’s trade mark.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under Paragraph 4 (a) of the Policy, the Complainant has the burden of proving the following
(i) That the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) That the Respondent has no rights or legitimate interests in respect of the Domain Name, and
(iii) That the Domain Name has been registered and is being used in bad faith.
Paragraph 15 (a) of the Rules requires the Panel to:
“…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”.
If a respondent does not submit a response, Paragraph 5(e) of the Rules requires the Panel to “decide the dispute based on the complaint”. Under Paragraph 14(b) of the Rules, the Panel may draw such inferences from a respondent’s failure to comply with the Rules (by filing a response), as the Panel considers appropriate.
A. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has proved this part of the Complaint.
The Complainant has produced evidence that it is the registered proprietor of the mark AREVA, both in the United States of America and internationally. That mark is wholly incorporated within the Domain Name, and numerous panels have found that a Domain Name that wholly incorporates a complainant’s registered mark may be sufficient to establish confusing similarity for the purposes of the Policy. See, for example, Nokia Group v. Mr. Giannattasio Mario, WIPO Case No. D2002-0782, referred to in the 3-member Panel decision The Ritz Hotel Limited v. Damir Kruzicevic, WIPO Case No. D2005-1137, and this Panel’s recent decision in Quintessentially (UK) Limited v. Mark Schnorenberg/Quintessentially Concierge, WIPO Case No. D2006-1643.
In this case, the Complainant contends (and the Respondent has not denied) that the word “AREVA” has no meaning in the English language. As an apparently made-up word coupled with the ordinary English word “challenge”, the “areva” part of the Domain Name is the distinctive part. As in the Ritz Hotel and Quintessentially cases, the additional word which has been joined with the trade mark to form the Domain Name (the word “challenge”), only serves to increase the likelihood of confusion, as a “challenge” describes precisely one of the Complainant’s well-publicized ventures (the America’s Cup campaign).
For those reasons, the Panel concludes without difficulty that the Domain Name is confusingly similar to the AREVA mark in which the Complainant has rights.
Accordingly, it is not necessary for the Panel to make any finding on the Complainant’s claim that it has trade mark or service mark rights in the longer expression “AREVA Challenge”.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a respondent to demonstrate that it has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy. Those circumstances are:
(i) Before any notice to [the respondent] of the dispute, use by [the respondent] of, or demonstrable 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; or
(ii) Where [the respondent] (as an individual, business, or other organization) [has] been commonly known by the domain name, even if [the respondent has] acquired no trademark or service mark rights; or
(iii) Where [the respondent is] making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The wording of paragraph 4 (c) of the Policy appears to envisage a respondent taking steps to demonstrate its right or interest, and it is generally accepted that, once a complainant has proved that the domain name is identical or confusingly similar to its mark and that it has not authorized the respondent to use the domain name, a finding of “no legitimate right or interest” should normally follow if the respondent does not advance any plausible “right or legitimate interest” case. (If the respondent does put forward such a case, the Panel decides the issue on the basis of all of the evidence, with the complainant carrying the ultimate burden of proof.)
That approach to the burden of proof under this paragraph of the Policy is consistent with the “Consensus View” of WIPO panels, described at paragraph 2.1 of the Center’s online document “WIPO Overview of WIPO Panel Views on Selected UDRP Questions”, as follows:
“A Complainant is required to make out an initial prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4 (a)(ii) of the UDRP”.
In this case, the Complainant has established that the Domain Name is confusingly similar to the AREVA mark in which it has rights, and that it has not authorized the Respondent to use that mark, whether in a domain name or otherwise. So the evidential onus shifts to the Respondent to demonstrate that it has some right or legitimate interest in the Domain Name.
The Respondent has not filed any Response, and that would be enough on its own for the Complainant to succeed on this part of the Complaint. However, it is fairly clear in any event that the Respondent could not have brought himself within any of the three examples of rights or legitimate interests set out in paragraph 4(c) of the Policy.
First, the Respondent does not appear to have been using the Domain Name in connection with any offering of goods or services (the Greenpeace website is not generally concerned with the offering of goods or services, and offering the Domain Name for sale is not a “use” of the Domain Name). Paragraph 4(c)(i) of the Policy therefore cannot have any application.
There is no suggestion that the Respondent is known by the Domain Name, so paragraph 4(c)(ii) of the Policy cannot apply.
There might possibly have been an argument under paragraph 4(c)(iii) of the Policy (legitimate non-commercial or fair use, with no intention for commercial gain to misleadingly divert consumers, or to tarnish a complainant’s mark), if it had not been for the Respondent’s email, sent within a few days after the Respondent acquired the Domain Name, offering to sell the Domain Name to the Complainant for €35,000. The Panel can readily imagine that in some circumstances it might be a fair or legitimate non-commercial use to point a domain name to a website which is critical of nuclear power generally, or of some particular player within the nuclear power industry (at least if there was no intention to derive commercial gain by misleading Internet users, or to tarnish the complainant’s marks). But it seems that legitimate or fair criticism (or even the more general exercise of some claimed right of free expression) was not the Respondent’s intention – according to the email dated April 28, 2007, the Respondent, having only acquired the Domain Name on eBay a few days earlier, intended to re-sell the Domain Name online (subject only to giving the Complainant a first right of refusal).
It seems to the Panel to be more likely than not that the original registrant of the Domain Name registered the Domain Name in April 2006 with knowledge of the Complainant’s forthcoming America’s Cup campaign, or alternatively with knowledge that the Complainant had registered, a few days earlier, the Domain Name <areva-challenge.com>. Why choose the non-English word “areva” as the distinctive part of the Domain Name, if the registrant was unaware of the Complainant? Why combine the non-English word “areva” with the English word “challenge”, if the registrant was unaware of the Complainant’s America’s Cup challenge to be launched under an “AREVA Challenge” banner (or of the Complainant’s <areva-challenge.com> domain)? It may or may not have been the intention of the original registrant to embarrass the Complainant, a leader in the nuclear power field, by registering a domain name incorporating the Complainant’s widely known trade mark and pointing it to a website operated by an organization which is widely perceived as holding anti-nuclear views. It may even have been the intention of the original registrant that the Domain Name would eventually be offered to the Complainant at a price significantly higher than the registrant’s out-of-pocket registration costs. In the end those questions matter little – what is important is the intention of the present Respondent when he registered the Domain Name.
The Respondent’s intention seems clear – he attempted to sell the Domain Name to the Complainant within four days after he acquired it. He quite clearly had no interest in using the Domain Name.
There is nothing in the record to suggest that any of the examples of rights or legitimate interests provided in Paragraph 4(c) of the Policy might apply, and the Respondent has not put forward any other basis for claiming a right or legitimate interest in respect of the Domain Name. In those circumstances, the Panel finds that the Respondent has no such right or legitimate interest.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists a number of circumstances which, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith. Those circumstances are:
(i) circumstances indicating that [the respondent has] registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark 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 domain name; or
(ii) [the respondent has] registered the domain name in order to prevent the owner of the trademark 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
(iii) [the respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the 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 is satisfied on the evidence produced, and in the absence of any Response, that the circumstances fall within paragraph 4(b)(i) above. The Panel has come to that view for the following reasons:
1. The Domain Name is confusingly similar to the Complainant’s AREVA mark.
2. The Respondent has no right or legitimate interest in the Domain Name.
3. The Panel is satisfied on the evidence produced, that it is more likely than not that the Respondent knew of the Complainant and its AREVA mark, and knew of the Complainant’s <areva-challenge.com> domain name, when he acquired the Domain Name on or about April 24, 2007. First, the Respondent is resident in the United States of America, and the Complainant holds a United States Federal trade mark registration for its AREVA mark. Secondly, there is evidence that the Complainant is a very substantial operator in the nuclear power field in the United States of America, and that its operations have from time to time attracted media coverage in that country. The America’s Cup regatta, in which the entrant “AREVA Challenge” was sponsored by the Complainant, would also have attracted worldwide media attention, including some in the United States of America. Thirdly, the Respondent sent an email to the administrative contact for the Complainant’s <areva-challenge.com> domain name, within only four days of the Domain Name being registered in the Respondent’s name. Fourthly, it appears that the Respondent is not inexperienced in the acquisition of domain names (his April 28 email refers to “one of my domains”). It seems likely that he would have done some research on the Domain Name before he acquired it. As it appears that his intention was to on-sell the Domain Name, he would presumably have been particularly concerned to identify anyone who might be a potential purchaser, and he would probably have run a Google or similar search to ascertain (if he did not already know) who might have a special interest in the non-English expression “areva” and would therefore be a prospective purchaser.1 The likelihood is that any such enquiries would have led the Respondent to the Complainant. Fifthly, although there is no evidence as to how long the Domain Name had been advertised for sale on eBay, the evidence of M. Albou shows that the earlier registrant was attempting to sell the Domain Name on April 16, 2007, and that on that date the Domain Name resolved to a website which featured references to the expression “areva challenge”, and pictures of yacht sails carrying one of the Complainant’s AREVA logo trade marks. All of that would have been seen by the Respondent if he checked the website to which the Domain Name resolved while that material remained on the website.
In combination, the foregoing matters are more than sufficient to persuade the Panel that the Respondent probably knew of the Complainant and its AREVA mark, and also knew of the Complainant’s <areva-challenge.com> domain name, when he acquired the Domain Name on or about April 24, 2007. It is not necessary to make any finding as to whether or not there was some association between the Respondent and the prior registrant, Luc Andre, and the Panel makes no such finding. The Respondent said in his April 28, 2007 email that he acquired the Domain Name on eBay, and there is no evidence which would entitle the Panel to disbelieve that statement. (It is true that on May 4, 2007 the Domain Name still pointed to the Greenpeace website, but that does not of itself establish a link between the Respondent and the prior registrant, and there does not appear to be any other evidence of a connection between the two.)
4. For the purposes of the Policy, a transfer of a domain name from one registrant to another is regarded as being a new registration of that domain name by the transferee. That is apparent from the wording of the Policy itself (see in particular paragraph 4(b)(i) of the Policy, which treats “acquiring” a domain name as the equivalent of “registering” that domain name). A number of Panel decisions have confirmed that interpretation of the Policy – see for example MC Enterprises v. Mark Segal; WIPO Case No. D2005-1270, Ideenhaus Kommunicationsagentfur GmbH v. Ideenhaus GmbH; WIPO Case No. D2004-0016, and the cases referred to by the Panel at page 4 of the decision in the Ideenhaus case.
5. The Respondent attempted to sell the Domain Name to the Complainant, within four days after the Domain Name had been registered in his name. That is a very short period of time, and in the absence of any Response, it is reasonable to infer that the Respondent acquired the Domain Name with the express purpose of on-selling it. The April 28, 2007 email to the Complainant shows that the Respondent had by then identified the Complainant as a likely purchaser, and the Panel has found that the Respondent probably identified the Complainant as such before he acquired the Domain Name. In the absence of any contrary explanation from the Respondent, the Panel has little difficulty in concluding that the Respondent acquired the Domain Name with the intention of selling it, if he could, to the Complainant.
6. There is no evidence of the price the Respondent paid for the Domain Name (if any). The most that can be said is that it would likely have been less than €35,000, being the price at which the former registrant had been offering the Domain Name for sale. If the Respondent’s only interest in acquiring the Domain Name was to on-sell it immediately, his intention was presumably to make a profit in so doing. Why else would someone purchase a Domain Name with the intention of immediate resale?2
7. For the foregoing reasons, and in the absence of any explanation from the Respondent, the Panel concludes that the Respondent acquired the Domain Name primarily for the purpose of selling the Domain Name to the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the Domain Name. The example of bad faith registration and use described in paragraph 4(b)(i) of the Policy is therefore established in this case.
The Complainant having proved each of the matters required to be proved under paragraph 4(a) of the Policy, the Domain Name must be transferred to the Complainant
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <arevachallenge.com> be transferred to the Complainant.
Warwick Smith Sole Panelist
Dated: July 4, 2007
1 As the Panel noted in the recent case of Edmunds.comInc v. Wan-Fu China Ltd, WIPO Case No. D2007-0339: “A quick search over the Internet would reveal domain names or websites which are identical or similar to the Respondent’s choice of domain name. Consequently, it would have been pertinent for the Respondent to provide an explanation of its choice in the disputed domain name, failing which the Panel draws the conclusion that the disputed domain name was registered in bad faith ….” Any such “quick search” in this case would have led the Respondent (quickly) to the Complainant.
2 Similar reasoning was applied by the Panel in the very recent case of The American Kennel Club Inc. v. Aaron Clayton, WIPO Case No. D2007-0543, where the Panel described as “reasonable” the inference that the respondent in the case would not have gone to the trouble of purchasing the at-issue domain name, maintaining its registration, and offering it for sale, unless he intended to do so for a price in excess of his costs.
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