WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
24 Seven, Inc. v. IT Freelance / 24x7freelancer
Case No. D2016-0936
1. The Parties
The Complainant is 24 Seven, Inc. of New York, New York, United States of America ("USA"), represented by Gottlieb, Rackman & Reisman, PC, USA.
The Respondent is IT Freelance / 24x7freelancer of Vastrapur, India, representative not identified.
2. The Domain Name and Registrar
The disputed domain name <24x7freelancer.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 10, 2016. On May 11, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 13, 2016, the Registrar 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" 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 proceedings commenced on May 24, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 13, 2016. The Response was filed with the Center on June 12, 2016.
The Complainant submitted an unsolicited Supplemental Filing on June 15, 2016, which was in any event included in the case file sent to the Panel.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on June 23, 2016. 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.
Owing to the Respondent's failure to copy the Complainant on its Response including the Response Annexes, the Complainant was granted by Procedural Order dated June 30, 2016, an opportunity for time, to react to the Response, given that it raised novel issues not foreseeable at the time of the filing of the Complaint.
4. Factual Background
The factual background in relation to the Complainant is taken from the Complaint.
The Complaint provides staffing and recruitment services in the USA and internationally, matching candidates to different types of job opportunities. The Complainant conducts some of its business over the Internet primarily through the website "www.24seventalent.com".
The Complainant owns the following trademarks:
24 SEVEN, United States Patent and Trademark Office (USPTO) principal register, registered August 23, 2011, registration number 4014987, class 35, providing staffing services in the fields of fashion, home furnishing, beauty and retail marketing; advertising, marketing, and creative marketing design services; talent recruitment agency in connection with fashion, home furnishing, beauty and retail marketing; on-line ordering services featuring books, software and supplies for the fashion and beauty industry;
24 SEVEN REAL TALENT FOR CREATIVE COMPANIES, stylised and with specified colours, USPTO principal register, registered December 13, 2011, registration number 4069460, class 35, providing staffing services in the fields of fashion, home furnishing, beauty and retail marketing; advertising, marketing, and creative marketing design services; talent recruitment agency in connection with fashion, home furnishing, beauty and retail marketing; on-line ordering services featuring books, software and supplies for the fashion and beauty industry.
The factual background in relation to the Respondent is taken from the Response.
The Respondent operates a bidding portal through the disputed domain name, offering free and paid levels of membership. Users may post projects and others may bid for them. There is provision for messages to be exchanged between the prospective parties to a project.
The disputed domain name was registered on March 2, 2016, according to the ICANN WhoIs record.
5. Parties' Contentions
A. Complainant
The Complainant has produced copies of registration documents in respect of the trademarks listed in section 4 above. First use of them is claimed as January 2000. The Complainant contends that it is a leading provider of staffing and recruitment services including freelance, full-time, contingent, retained and executive positions.
The Complainant says that on March 16, 2016, communications from the Respondent were received by several of the email addresses used by the Complainant, alerting them to the disputed domain name as offering a bidding portal for freelancers looking for work and companies with work to be done. The Respondent announced on April 12, 2016, that its website would be coming live on April 15, 2016. The Complainant has produced a screen capture of the website taken on April 22, 2016, showing job postings.
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant's trademark. The element "24x7" in the disputed domain name would be read as "twenty-four seven." The Complainant has submitted an entry from an online dictionary ("www.dictionary.com") and contends that "24/7", "24‐7" and "twenty-four seven" are synonymous and identical in sound with "24x7", meaning "twenty-four hours a day, seven days a week".
The Complainant says the element "freelancer" of the disputed domain name is descriptive of the services offered by the Respondent. The Complainant has submitted an entry from "www.dictionary.com" giving definitions for a freelancer. The Complainant says its trademark is incorporated into the disputed domain name, constituting confusing similarity, and neither the descriptive word "freelancer" nor the generic Top-Level Domain(" gTLD") ".com" is distinguishing. Furthermore the confusion is compounded because the Complainant and the Respondent both offer job opportunities for freelancers.
The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has never authorised the Respondent to use the Complainant's trademarks or to register the disputed domain name. There is no evidence the Respondent is using the disputed domain name in connection with a bona fide offering of goods or services but it is trading on the goodwill of the Complainant and diverting the Complainant's customers for very similar services. The Complainant advertises freelance job availability and currently offers over 700 on its website.
The Complainant further contends that the disputed domain name was registered and is being used in bad faith. Any offering of goods or services is not bona fide. The Respondent has intentionally used the disputed domain name to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant's trademarks. Internet users searching for the Complainant and diverted to the Respondent's website could be confused into thinking the Complainant was affiliated with or endorsed the website.
The Complainant contends that the Respondent was aware of the Complainant's business and trademarks prior to or shortly after registering the disputed domain name because the Respondent contacted email addresses publicly available on the Complainant's website.
On March 21, 2016, the Complainant emailed a cease, desist and transfer letter to the Respondent, which was not returned as undeliverable. The Complainant says the street address of registration provided by the Respondent however was incomplete and a letter sent to a researched address apparently reached the wrong addressee.
The Complainant has cited a number of previous decisions under the Policy as being potentially relevant to its case.
The Complaint was supported by separate Declarations under penalty of perjury signed by respectively the Executive Vice President of Information Technology & Innovation at 24 Seven, Inc., and by Michael Nesheiwat, counsel for the Complainant.
The Complainant requests the transfer of the disputed domain name.
B. Respondent
The Respondent denies the Complaint.
The Respondent says the disputed domain name resolves to a bidding portal or market place on which users may post projects, and on which people, freelancers and companies may bid for the work. There is a message system through which the respective users may communicate.
The Respondent contends that the disputed domain name is not similar to the Complainant's trademark when they are compared. The "24" and "SEVEN" in the Complainant's trademark are merely the number 247 written differently, without the "x" meaning "by", whereas "24x7freelancer" in the disputed domain name means "twenty four by seven freelancer".
The Respondent says the online dictionary "www.dictionary.com" as cited by the Complainant is not authoritative for legal issues.
The Respondent contends there is no similarity in the services provided by the Complainant and the Respondent. The Complainant's trademarks are registered for "providing staffing services in the fields of fashion, home furnishing, beauty and retail marketing; advertising, marketing, and creative marketing design services; talent recruitment agency in connection with fashion, home furnishing, beauty and retail marketing; on-line ordering services featuring books, software and supplies for the fashion and beauty industry", and not for website development and SEO, whereas the Respondent provides a portal where projects can be posted and companies and freelancers can bid.
The Respondent contends that it is not a competitor of the Complainant because their businesses are unrelated. The Respondent alleges that the Complainant wants the disputed domain name because it has started to get good traffic.
The Respondent denies that the disputed domain name was registered in bad faith and asserts that it was registered in good faith in order to provide the free or low cost freelance bidding platform described.
Certain matters related by the Respondent, including comments about the Complainant's sources of information and about a purported hacking attempt on the Respondent's website, were not considered relevant.
C. Complainant's Supplemental Filing
The Complainant's Supplemental Filing denied involvement in a purported hacking attempt against the Respondent's website (supported by a Declaration under penalty of perjury signed by the Executive Vice President of Information Technology & Innovation at 24 Seven, Inc.) and cited perceived procedural deficiencies in the Response, including a failure to send the Response Annexes to the Complainant.
6. Discussion and Findings
6.1. Procedural Issues
Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable dispute-resolution provider, in compliance with the Rules, that:
"(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith".
The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute.
Paragraph 12 of the Rules provides that the Panel, in its sole discretion, may request further statements or documents from the Parties. Beyond the Complainant's Supplemental Filing of June 15, 2016, given the expeditious nature of proceedings under the Policy, no additional submissions were warranted.
6.2. Substantive Issues
A. Identical or Confusingly Similar
The Panel is satisfied by the documentary evidence produced that the Complainant has rights in the trademarks 24 SEVEN and 24 SEVEN REAL TALENT FOR CREATIVE COMPANIES.
The disputed domain name is <24x7freelancer.com>. A natural reading of the trademark 24 SEVEN would likely be in the form "twenty-four seven". The Complainant has produced an online dictionary entry, the authority of which is contested by the Respondent, showing "24x7" to be synonymous with variants of "twenty-four seven". The Panel finds it more probable than not that many people would tend to pronounce "24x7freelancer" as "twenty-four seven freelancer", thereby effectively incorporating the Complainant's trademark 24 SEVEN. At the modest threshold conventionally applied under paragraph 4(a)(i) of the Policy, the Panel finds the disputed domain name to be confusingly similar to the Complainant's trademark 24 SEVEN.
Insofar as the disputed domain name contains "24x7" the Panel finds it to meet also the threshold under paragraph 4(a)(i) of the Policy for confusing similarity with the Complainant's trademark 24 SEVEN REAL TALENT FOR CREATIVE COMPANIES.
B. Rights or Legitimate Interests
The Complainant has asserted that the Respondent has not been authorised to use the Complainant's trademarks in any way.
Paragraph 4(c) of the Policy provides for the Respondent to establish rights or legitimate interests in a disputed domain name by demonstrating, without limitation:
"(i) before any notice to you of the dispute, your use 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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 trademark 24 SEVEN will be considered first.
The Complainant's ownership of the trademark 24 SEVEN does not necessarily exclude others from having rights or legitimate interests in a domain name similar to the trademark. First notice of the dispute appears to have been the Complainant's cease and desist email to the Respondent dated March 21, 2016. In terms of paragraph 4(c)(i) of the Policy, the Respondent has asserted what amount to at least demonstrable preparations for a website offering the service of a bidding platform for freelance projects and workers. The Complainant's evidence shows that, at least as early as March 17, 2016, the disputed domain name resolved to a homepage proclaiming "hire a freelancer & get freelance work online" and "free subscribe to get an invite", leading on to further explanation. Later postings showed an apparent emphasis on computing, development work and "SEO" (which, in the context, the Panel takes to mean Search Engine Optimisation). In evidence the Respondent has produced a screen capture showing a moderated website through which participants are invited to place, edit and manage projects, bid on them, make contact with other participants and conduct related activities.
The question, however, is whether or not the offering of services through the disputed domain name was bona fide, which may in turn depend on the Respondent's right to register the disputed domain name and an absence of bad faith in its registration and use.
According to "www.dictionary.com", the terms "twenty-four seven", "24/7", "24-7" and "24x7", with which 24 SEVEN may reasonably be grouped, are dictionary expressions meaning twenty-four hours a day for seven days a week. The online dictionary's citations of meaning or usage include personal togetherness, manufacturer's support, convenience store hours, and figurative reference to sustained work. Without the benefit of evidence it may be admitted that the expression "24/7" is commonly seen associated with fuel stations, ATM machines, fire and ambulance services, after-hours doctor services, taxi services, fast food outlets, radio and TV stations, and in numerous other connotations.
In the exercise of its powers to undertake limited factual research into matters of public record (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), paragraph 4.5) the Panel has consulted the USPTO trademark registry. On June 29, 2016, a search for "24 seven" (which found trademarks and pending applications incorporating variants such as "24/7" and "24 7"), confined to international class 35 under which the Complainant's trademarks are registered, yielded 70 trademarks or applications in that class, of which 33 were registered live trademarks, as follows:
24 SEVEN (Complainant's trademark)
24 SEVEN REAL TALENT FOR CREATIVE COMPANIES (Complainant's trademark)
24-7 SUPPLY
[24]7 VIVID SPEECH
[24]7 SPEECH
ECO24/7
OASIS24SEVEN.COM "WE ARE CONVENIENCE!"
DELIVERING THE DELICIOUS TASTE OF PARADISE 24/7
[24]7 ASSIST
24·7
RING A DOCTOR 24/7
MOMMIES 24 7
OASIS24SEVEN
24/7 LIVE-IN PROGRAM L
[24]7
24/7
SHOP SMART 24 7 SELF CONVENIENCE 2 U
ADVOCACY 24/7
24-7 POWER
24 7 VIRGIN VALLEY FOODMART
24:7 ICONS
EASYPACK 24/7
CHOO 24:7
SLED HEAD 24/7
24 7
24··7 SPORTS MANAGEMENT
24-7 CHEERLEADING
24/7 CUSTOMER
KB 24/7 EDUCATION THAT FITS YOUR SCHEDULE
GROUP24/7
24/7 CONNECT
CIRCADIAN 24/7 WORKFORCE SOLUTIONS
SUPPLYCHAIN247
A search of the trademark register of the United Kingdom Intellectual Property Office for "24 seven", confined to class 35, after eliminating duplicates, yielded the following 52 registered or protected trademarks (portrayed variously in upper or lower case), some of which are also registered at the USPTO:
24 seven real talent for creative companies (Complainant's trademark)
24seven
24 Seven
24 SEVEN
24/7 SAFETY
24/7 MEDIA
24/7 CONNECT
VIDEOSELF YOUR HOME ENTERTAINMENT 24H / 7
24.7 (Khaled Besher Al-Jabri, Saudi Arabia)
24.7 (Australasian Steel Products Pty Ltd)
24-7 Football
Document as a service 24/7
LOGIC 24:7
24/7 REAL MEDIA
24/7
RYCO 24.7
MAGICARE MAGIC PRODUCTS 24 / 7
24 FLOWER, The original 24/7 Fresh Flower Collection
HPC 24 7
24:7 ICONS
SWISS 24/7
PROUD 24•7
TIGI 24/7
pubs 24 7
YELLOW PAGES 24 7
24 7 (hibu (UK) Limited)
24 7 (Lockerz, Inc., United States)
118 24 7
24/7 fm
Yellow Pages 118 24 7
24-7 Football
24-7 FOOTBALL
24/7 FOOTBALL
24.7 FOOTBALL
24 7 FOOTBALL
24:7 Partners CONTINUING PARTNERS IN CONTINUOUS MISSION BMS world mission
theshinyhairshop LOOKING GOOD 24/7
Quick Consumers communicate with companies 24/7
CHOO 24:7
24/7 Care Services here when you need us..
MEARS 24/7
24/7 care group
Optimize 24-7
Optimise 24-7
MERCHANT HEAVEN 24/7
Merchant Heaven open 24/7
11 HOUR EXPRESS 24/7
24-7 Entertainment
FITNESS 24 SEVEN
CPU 24/7
easyPack 24/7
Büro 24/7
Thus, the trademark 24 SEVEN and synonyms such as "24seven", "24/7", "24.7", "24-7", "24 7" and "24:7" occur either in combination or standing alone in numerous registered trademarks under class 35. Notably, the Complainant's trademark format 24 SEVEN standing alone is also registered by EDF Energy Plc, London, under categories including "business management services" and "advertising services". The trademark format 24seven standing alone is registered by Unilever N.V. in the Netherlands and Unilever Plc in the United Kingdom for "Advertising and promotion services and information services relating thereto; business information services; all the aforementioned services being provided on-line from a computer database or the Internet; compilation of advertisements for use as web pages on the Internet".
Whilst previous decisions under the Policy are not binding precedent, the Panel notes, among other decisions, Rollerblade, Inc. v. CBNO and Ray Redican Jr.,
WIPO Case No. D2000-0427 (three member panel): "Indeed, genericness, if established, will defeat a claim of trademark rights, even in a mark which is the subject of an incontestable registration". Webvan Group, Inc. v. Stan Atwood,
WIPO Case No. D2000-1512: "when the mark is a relatively weak, non-distinctive term, courts have found that the scope of protection may be limited to the identical term and that the addition of other descriptive matter may avoid confusion". ADITO Software GmbH v. Domain Admin, Mrs. Jello LLC,
WIPO Case No. D2008-1771: "descriptive marks are entitled to very limited protection and 'small differences' are sufficient to establish the lack of confusing similarity". Macmillan Publishers Limited, Macmillan Magazines Limited and HM Publishers Holdings Limited v. Telepathy, Inc,
WIPO Case No. D2002-0658: "It is not a per se breach of the UDRP to register the trademark of another as a domain name where the trademark is a generic word".
The panel in Match.com, LP v. Bill Zag and NWLAWS.ORG,
WIPO Case No. D2004-0230, which declined the transfer of 9 domain names incorporating the trademark MATCH.COM, said "... Respondent has registered nine domain names which contain the descriptive term and common English word 'match' in combination with other common English words or numbers in the generic Top Level Domain (gTLD) .com. This Respondent is entitled to do. By registering the service mark MATCH.COM, Complainant cannot thereby preclude anyone else from ever registering the common term 'match' in combination with other common words in the .com gTLD".
Conversely, as cited by the Complainant, the panel in Sony Kabushiki Kaisha v. Inja Kil,
WIPO Case No. D2000-1409, found that the addition of an ordinary descriptive word to a trademark did not detract from the overall impression of the dominant part of the 19 domain names in question; however this decision may be distinguished because the relevant trademark SONY was distinctive and well known. Stoxx AG v. Rex Huang,
WIPO Case No. D2008-1806, cited by the Complainant ("The incorporation of a trademark in its entirety in a domain name is, according to previous cases, sufficient to establish that a domain name is identical or confusingly similar to a registered trademark") may be distinguished because the trademark STOXX in question was invented and distinctive.
The element "24 seven" and its synonyms are evidently non-distinctive, descriptive dictionary expressions that alone do not identify a particular source of goods or services. It would appear that the Complainant, by registering the dictionary term 24 SEVEN as a trademark, cannot reasonably preclude anyone else from registering the synonymous term in combination with other words as a domain name, subject, however, to the further proviso that: "... it is well settled that a bona fide offering of goods and services under paragraph 4(c)(i) is not possible under circumstances otherwise evidencing bad faith registration and use of the domain name" (National Trust for Historic Preservation v. Barry Preston,
WIPO Case No. D2005-0424). The panel in Match.com, LP v. Bill Zag and NWLAWS.ORG (supra), after saying "The Policy was not intended to permit a party who elects to register as a trademark or service mark a common word to bar all others from using the common word in combination with other common words ...", went on to say "... unless it is clear that the use involved is seeking to capitalize on the goodwill created by the mark holder".
The three-member panel in Madonna Ciccone, p/k/a Madonna v. Dan Parisi and "Madonna.com",
WIPO Case No. D2000-0847, said: "We find instead that name [Madonna] was selected and used by Respondent with the intent to attract for commercial gain Internet users to Respondent's web site by trading on the fame of Complainant's mark. We see no other plausible explanation for Respondent's conduct and conclude that use which intentionally trades on the fame of another can not constitute a "bona fide" offering of goods or services. To conclude otherwise would mean that a Respondent could rely on intentional infringement to demonstrate a legitimate interest, an interpretation that is obviously contrary to the intent of the Policy".
Whether the Respondent has rights or legitimate interests in the disputed domain name is not at this stage decided therefore and must depend in part on the findings below in respect of bad faith.
C. Registered and Used in Bad Faith
The Complainant is required to prove under paragraph 4(a)(iii) of the Policy that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
"(i) circumstances indicating that you have registered or you have 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 your documented out of pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your website or location or of a product or service on your website or location".
The provisions of paragraph 4(b) of the Policy are without limitation and bad faith may be found otherwise by the Panel.
No evidence has been found that the Respondent has registered and used the disputed domain name primarily for sale, or within a pattern of making blocking registrations, or primarily to disrupt the business of a competitor, within the meaning of paragraphs 4(b)(i), (ii) or (iii) of the Policy. The Complainant asserts that the Respondent has set out to create confusion with the Complainant's trademark within the contemplation of paragraph 4(b)(iv) of the Policy. The Respondent replies, among other things, there is a vast difference between the services offered by the Complainant and the Respondent respectively.
The objective test of confusing similarity that conventionally satisfies the relatively low threshold under paragraph 4(a)(i) of the Policy does not substitute for the "likelihood of confusion with the complainant's mark" required under paragraph 4(b)(iv) of the Policy. The Complainant must prove that the Respondent targeted the Complainant's trademark in the terms of paragraph 4(b)(iv) of the Policy, which requires an examination of the evidence.
The Complainant says its trademark was registered about 5 years prior to the disputed domain name, however there is no evidence that the Respondent knew about it and the concept of constructive notice has not been widely invoked in decisions under the Policy, particularly where the trademark "corresponds to a common word or phrase" (WIPO Overview 2.0, paragraph 3.4).
The Complainant says that on March 16, 2016, which would be 2 weeks after registration of the disputed domain name, email addresses associated with the Complainant received invitations from the Respondent to join its service for free. It is not known whether this was part of an extensive promotion. The Panel is driven to question whether, if the Respondent had in mind to trade on the Complainant's goodwill in bad faith, the Respondent would have made such a fundamental mistake as to notify the fact promptly to the Complainant, or would instead have kept a low profile for as long as possible.
The Complainant says the term "freelancer" is descriptive of the services offered by the Respondent, implying that it is in conflict with services offered by the Complainant, which has about 700 such offerings and refers to freelancers in the piece "About 24 Seven" on its website. There is no evidence that the Respondent has copied material from the Complainant's website or set out to tarnish the Complainant's trademark. The Panel does not find there is a realistic conflict between the disputed domain name and the scope of the Complainant's trademark as described in the trademark register.
As cited above (Webvan Group, Inc. v. Stan Atwood, supra) "when the mark is a relatively weak, non-distinctive term, courts have found that the scope of protection may be limited to the identical term and that the addition of other descriptive matter may avoid confusion". The Panel finds the trademark 24 SEVEN to be descriptive and largely, non-distinctive, and not by any means exclusive whereas the descriptive element "24x7freelancer" in the disputed domain name has at least some medium of distinctiveness, more so than either "24x7" or "freelancer" standing alone. The Panel is not persuaded on balance by the available evidence that the Respondent has registered, used or intends to use the disputed domain name in a trademark sense in conflict with the Complainant's trademark. Having regard to all the evidence the Panel does not find the Complainant to have met the burden of proving on the balance of probabilities that the Respondent has intended to create a likelihood of confusion with the Complainant's trademark 24 SEVEN within the meaning of paragraph 4(b)(iv) of the Policy.
The Panel does not find on balance that the Complainant's ownership of the trademark 24 SEVEN REAL TALENT FOR CREATIVE COMPANIES conflicted with the Respondent's claim to rights or legitimate interests in the disputed domain name or presented a significant likelihood that Internet users would confuse that trademark with the disputed domain name.
Reverting to the matter required to be proved under paragraph 4(a)(ii) of the Policy, the Panel finds that the Complainant has failed to prove on the balance of probabilities that the Respondent does not have rights or legitimate interests in the disputed domain name. Under paragraph 4(a)(iii) of the Policy the Panel finds that Complainant has failed to prove on the balance of probabilities that the disputed domain name was registered and is being used in bad faith.
The Panel records that the Respondent did not assist its case by the provision of an apparently incomplete street address, or by its failure to reply to the Complainant's cease and desist letter (Ebay, Inc. v. Ebay4sex.com and Tony Caranci,
WIPO Case No. D2000-1632). It should also be noted that the Policy deals with matters of abusive registration of a domain name but not with matters of trademark infringement per se.
7. Decision
For the foregoing reasons, the Complaint is denied.
Dr. Clive N.A. Trotman
Sole Panelist
Date: July 5, 2016
