Andrew Reynolds v. Whois Privacy Protection Service, Inc. / A Aslam and Batley
Case No. D2010-0635
1. The Parties
The Complainant is Andrew Reynolds of Camberley, Surrey, United Kingdom of Great Britain and Northern Ireland represented by Stevens and Bolton LLP, United Kingdom.
The Respondent is Whois Privacy Protection Service, Inc. /A Aslam of Bellevue Washington, United States of America and Batley, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <andrewreynoldssecret.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 21, 2010. On April 22, 2010, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On April 22, 2010, eNom transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 23, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 27, 2010. The Center verified that the Complaint together with the amended 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 the Respondent of the Complaint, and the proceedings commenced on April 28, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 18, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 19, 2010.
The Center appointed Clive Duncan Thorne as the sole panelist in this matter on May 25, 2010. 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
According to the Complainant in its Amended Complaint, the Complainant is one of the United Kingdom's leading home business experts, and shares its business techniques with others who are looking for an alternative to corporate life, through “cash on demand” home study courses, DVDs and CDs. Further information about the Complainant is available at its website “www.andrew-reynolds.com”.
The Complainant markets its products and services through various channels, including the websites “www.andrews-secret.com” and “www.the-covenant.com”. Printouts from these websites are exhibited at Annex 5 to the Amended Complaint.
The Complainant submits that by virtue of its extensive use, promotion and exposure of its products and services, it has acquired substantial goodwill and reputation throughout the countries of the European Community and elsewhere in the world under the mark ANDREW REYNOLDS.
The Complainant is the registered proprietor of, and applicant for registration of a number of United Kingdom trademarks and European Community trademarks for the name ANDREW REYNOLDS. Details are set out in Annex 4 to the Amended Complaint. In particular, the Complainant is the registered proprietor of the trademark ANDREW REYNOLDS registered as United States of America Trademark No. 3574588, United Kingdom Trademark No. 2439429 and Community Trademark No. 006082432. All of these marks are registered in Classes 9, 16 and 41. The registrations cover, inter alia, (i) CDs and DVDs in Class 9; (ii) printed matter and teaching materials in Class 16 and (iii) education and training services in Class 41.
In April 2010, the Complainant became aware that the Respondent maintained a website at “www.andrewreynoldssecret.com” through which it was apparently offering, for sale, counterfeit copies of the Complainant's products. Further, it appeared that the website used text, images and video content from the Complainant's websites, copyright in which is owned by the Complainant, without the Complainant's permission. Printouts from this website dated April 16, 2010 are exhibited at Annex 6 to the Amended Complaint.
The history of the dispute is that on April 16, 2010, the Complainant's solicitors, Messrs Stevens & Bolton Limited, wrote to the Respondent requiring it to cease and desist from infringing the Complainant's rights. The letter was sent by fax, post and email using contact details for the Respondent and a copy was also sent to the host of the Respondent's website. Copies of these letters are set out at Annex 7 to the Amended Complaint.
No response has apparently been received and the Respondent appears to have offered counterfeit copies of the Complainant's products through its website.
In the light of the fact that the Respondent has failed to file a Response the Panel, having considered the evidence annexed to the Amended Complaint, is satisfied that the facts set out above are true.
5. Parties' Contentions
A. Complainant
The Complainant's submissions are as follows:
1. The Complainant is the owner of registered trademarks and substantial trading goodwill in the name ANDREW REYNOLDS.
2. The relevant part of the disputed domain name <andrewreynoldssecret.com> is identical to the Complainant's trademark ANDREW REYNOLDS.
3. The Respondent has no rights or legitimate interests in respect of the disputed domain name.
4. There is no evidence that the Respondent has made any bona fide or legitimate commercial use of the disputed domain name.
5. The domain name was registered and is being used in bad faith. The Complainant relies upon:
(i) The failure of the Respondent to respond to the cease and desist letter which it submits suggests that the Respondent is seeking to evade enforcement of the Complainant's rights.
(ii) By using the domain name in relation to the promotion of counterfeit products, the Respondent has intentionally attempted to attract for commercial gain Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's marks as to the source, sponsorship, affiliation or endorsement of the Respondent's website and the products offered on the website.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
From the evidence of trade mark rights adduced by the Complainant and referred to above, the Panel is satisfied that the Complainant has rights in the trademark ANDREW REYNOLDS. The Panel also finds that the disputed domain name which predominantly incorporates the word “andrewreynolds” is confusingly similar to the Complainant's trademark ANDREW REYNOLDS.
The Complainant therefore succeeds in this element.
B. Rights or Legitimate Interests
The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Panel accepts the Complainant's submission that there is no evidence that the Respondent has made any bona fide or legitimate commercial use of the domain name. Indeed, the only evidence of use by the Respondent has been to sell apparently counterfeit copies of the Complainant's products which it is argued infringe the Complainant's copyright and trademark rights. In the Panel's view, this does not constitute legitimate use of the domain name.
There is also no evidence that the Respondent has been commonly known by the disputed domain name nor that it is making noncommercial or fair use of the disputed domain name. In these circumstances, the Panel, taking into account that there is no Response from the Respondent, finds that the Respondent has no rights or legitimate interests in respect of the domain name.
It follows that the Complainant succeeds in establishing this element of the Complaint.
C. Registered and Used in Bad Faith
The Complainant relies upon a number of facts to support the contention that the domain name was registered and is being used in bad faith. In the Panel's view the two most important are:
(i) The Respondent's website has apparently been used for the purposes of selling counterfeit copies of the Complainant's products; and
(ii) the Respondent has failed to respond to the Complainant's letters before the filing of this Comlaint.
In the Panel's view, these instances constitute clear evidence of bad faith. The Panel therefore finds that on the evidence, the Respondent registered and is using the disputed domain name in bad faith.
The Complainant therefore succeeds in establishing this element also.
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 <andrewreynoldssecret.com> be transferred to the Complainant.
Clive Duncan Thorne Sole Panelist
Dated: June 1, 2010
Stay updated! Get new cases and decisions by daily email.
