Mr. Kaweh Kalirad, Mr. Ziamak Kalirad, Mr. Michael Rohricht v. Mr. Philip Ogunro
Case No. D2007-1493
1. The Parties
The Complainants are Mr. Kaweh Kalirad, Mr. Ziamak Kalirad, Mr. Michael Rohricht, of Germany, doing business under the name Defbeat Records GbR represented by Höcker Rechtsanwälte, Germany.
The Respondent is Mr. Philip Ogunro, of United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <defbeat.com> is registered with Tucows Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 10, 2007. On October 12, 2007, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the domain name at issue. On October 12, 2007, Tucows Inc. 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 November 13, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was December 3, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 4, 2007.
The Center appointed Knud Wallberg as the sole panelist in this matter on December 7, 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.
4. Factual Background
The three Complainants are doing business under the name Defbeat Records GbR, a business partnership under German law.
Defbeat records is the holder of the German trademark registration DEF BEAT. The trademark was registered on 1999, March 1, and has been used since then for production and trading of records and various entertainment services.
5. Parties’ Contentions
A. Complainant
The contested domain name <defbeat.com> is in essence identical to the Complainant’s trademark DEF BEAT. The lack of a blank space between the two words as well as addition of the .com suffix does not change this assessment.
The contested domain name does not reflect a name by which the Respondent is commonly known, nor is the Respondent using the domain name in connection with bona fide offering of goods or services. The Complainants therefore claim that the Respondent does not have any legitimate rights or interests in the domain name.
Finally, the Complainants contend that the domain name has been registered and is being used in bad faith. The domain name was registered after the Complainants registered and started using their trademark. The corresponding website “www.defbeat.com” has since then carried the sign “under construction” and has had no real content. Furthermore, when the Respondent was approached by the Complainants with an offer to buy the domain name for USD 3.000, the Respondent claimed payment of USD 1.000.000, which demonstrates that the Respondent’s sole purpose of registration of the contested domain name was not bona fide use but rather to keep it in store for eventual later sale.
B. Respondent
The Respondent did not reply to the Complainants’ contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide a complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) that the Respondent has no rights or legitimate interests in respects of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate.
A. Identical or Confusingly Similar
The contested domain name contains the Complainants’ trademark DEF BEAT in full, with the addition of the “.com” designation. Since a blank space between words is not allowed in domain names, the domain name must for the purpose of these proceedings be considered identical to the Complainants’ trademark.
The conditions in the Policy, paragraph 4(a)(i) are therefore fulfilled.
B. Rights or Legitimate Interests
The Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name incorporating the mark.
The Complainant further alleges that the Respondent has no rights or legitimate interests in the domain name, since the contested domain name does not reflect a name by which the Respondent is commonly known, nor is the Respondent using the domain name in connection with bona fide offering of goods or services. The Respondent has not rebutted this allegation and since the Complainant’s trademark DEF BEAT is a distinctive mark with no specific meaning or connotation it is unlikely that any such rights or interests may exist.
Consequently the conditions in the Policy, paragraph 4(a)(ii), cf. 4(c) are also considered fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainants to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b)(i) of the Policy provides an example of circumstances which shall be evidence of registration and use in bad faith.
It is not credible to the Panel in this case that the Respondent registered the disputed domain name, which incorporates the distinctive trademark of the Complainants, without knowledge of the Complainants and the Complainants’ activities.
The Panel therefore finds that the contested domain name was registered in bad faith.
The website that is linked to the contested domain name is currently showing a passive web page “under construction”. As first stated in Telstra Corporation v. Nuclear Marshmallows,WIPO Case No. D2000-0003, and repeated in many subsequent decisions under the UDRP:
“[…]the concept of a domain name “being used in bad faith’ is not limited to positive action; inaction is within the concept. That is to say, it is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith”.
Showing an “under construction” webpage is in the Panel’s view somewhere between positive action and inaction. The fact that in this case customers and other users of the Internet who may be looking for information on the Complainants and the Complainants’ activities under the contested domain name are faced with a webpage without content may, however, lead those users to believe that the Complainants are not only not present on the Internet but perhaps even that the Complainants is not doing active business. Such use of the domain name may disrupt the business of the Complainants. It is also quite evident that the registration of the domain name prevents the Complainants from reflecting their mark in corresponding domain name under the top level domain “.com”.
Although it is not in itself proof of bad faith to offer to sell a domain name when approached by a potential buyer, it is on the other hand obvious that the sum demanded by the Respondent without giving any substantiated reason by far exceeds the out-of- pocket costs for registration and maintaining the contested domain name.
Taking into account all of the above the Panel finds that the disputed domain name was registered and is on balance being used in bad faith. The Complainant has proved element 4(a)(iii) of the Policy.
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 <defbeat.com> be transferred to the Complainants.
Knud Wallberg Sole Panelist
Date: December 20, 2007
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