The Complainant is Eurisko Mobility LLC, Lebanon, self represented.
The Respondent is Flying Pigs Inc., United States of America (“United States”).
The disputed domain name <eurisko.com> (the “Disputed Domain Name”) is registered with Network Solutions, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 12, 2020. On May 14, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On May 14, 2020, 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 26, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 15, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 18, 2020.
The Center appointed Nick J. Gardner as the sole panelist in this matter on June 23, 2020. 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.
The Complainant is incorporated under the laws of Delaware in the United States. Its business address is located in the country of Lebanon.
The Complainant is the owner of trademark registration EURISKO, registered on May 5, 2020 at the United States Patent and Trademark Office (USPTO), under registration no. 6047435 in class 42 in respect of “Web site development for others; Computer software development in the field of mobile applications; Video game development services”. This trademark is referred to as the EURISKO trademark in this decision. It was filed on September 10, 2019 and claims a first use in commerce of the same date.
Beyond the existence of the EURISKO trademark the Panel has no information at all about the Complainant, its history or what it does. The Panel also has no information about the Respondent apart from its name and address.
The Disputed Domain Name was first registered on December 5, 1994.
There is no evidence before the Panel of the Disputed Domain Name ever having been used.
The Response is extremely short.
The Complainant submits that the Disputed Domain Name is identical to its EURISKO trademark.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. It states that the Disputed Domain Name has always been inactive and still is, and that search engine results do not show any sign of preparations related to the Respondent to use it for offering goods or services. It also says that search engine results show that the Respondent has never been commonly known by the Disputed Domain Name.
The Complainant submits that the Disputed Domain Name was registered and has been used in bad faith. It says as follows: “Registration of the domain name eurisko.com prevents the owner of the service mark ‘Eurisko’ from reflecting the mark in its corresponding .com domain. Since the Respondent did not reply to any of the domain backorder attempts made by the Registrar, the Respondent should be considered as having registererd [sic] and used the domain name eurisko.com in bad faith.”
No Response has been filed
The Panel notes that no communication has been received from the Respondent. However, given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar, then the Panel considers that this satisfies the requirement in paragraph 2(a) of the UDRP Rules to “employ reasonably available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent’s failure to file any Response. While the Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see, e.g., Verner Panton Design v. Fontana di Luce Corp, WIPO Case No. D2012-1909).
In order to succeed in the Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and,
(iii) that the disputed domain name has been registered and is being used in bad faith.
The Complainant has established that it is the owner of a trademark registration for the word EURISKO
The Disputed Domain name is identical to this trademark and the Panel therefore finds that the first element under paragraph 4(a) is satisfied. It is well established that the generic Top-Level Domain (“gTLD”), in this case “.com”, does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
It does not matter for the purposes of this element that the Disputed Domain Name was registered before the EURISKO trademark existed – the Panel agrees with the consensus approach as explained in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) section 1.1.3:
“While the UDRP makes no specific reference to the date on which the holder of the trademark or service mark acquired its rights, such rights must be in existence at the time the complaint is filed.”
Registration of a domain name before a complainant acquires trademark rights in a name does not prevent a finding of identity or confusing similarity under the UDRP. The UDRP makes no specific reference to the date on which the holder of the trademark or service mark acquired rights. However, in such circumstances it may be difficult to prove that the Disputed Domain Name was registered in bad faith under the third element of the UDRP. See below as to bad faith issues.
In the light of the Panel’s findings in respect of bad faith, below, it is unnecessary for the Panel to express a conclusion on the question of the Respondent’s rights or legitimate interests.
The Panel finds on the evidence that the Respondent registered the Disputed Domain Name in December 1994, some 25 years before the EURISKO trademark was filed in 2019. The Complainant has provided no evidence of any earlier use of the term EURISKO. The Panel does not know when the Complainant was incorporated. The EURISKO trademark itself claims a first use date in 2019. In the circumstances, there is no evidence at all to suggest the Respondent registered the Disputed Domain Name in the knowledge of the Complainant’s trademark and therefore with the intention of taking unfair advantage of that trademark, and cannot therefore have registered it in bad faith for the purposes of the Policy (see WIPO Overview 3.0, section 3.8). Since the requirement under paragraph 4(a)(3) is conjunctive, i.e., the disputed domain name must have been both registered and used in bad faith, the Complaint must therefore fail. The fact that the Respondent has not used the Disputed Domain Name is irrelevant here. A domain name registrant who has legitimately registered a domain name is as a general rule not obligated to use it in any particular manner. The fact that the earlier registration prevents a later adoption of the same term as a domain name by a subsequent party is not itself indicative of bad faith. The Complainant says that “since the Respondent did not reply to any of the domain backorder attempts made by the Registrar, the Respondent should be considered as having registererd [sic] and used the domain name eurisko.com in bad faith.” The Panel does not agree. Even assuming that these attempts (whatever they were) came to the attention of the Respondent, and while it may seem unusual to do so, it was under no particular obligation to react to them.
Reverse Domain Name Hijacking (“RDNH”) is defined under the Rules as “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name”.
Paragraph 15(e) of the Rules provides that, if “after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding”.
As set out in the WIPO Overview 3.0section 4.16, reasons articulated by panels for finding RDNH include: (i) facts which demonstrate that the complainant knew it could not succeed as to any of the required three elements – such as the complainant’s lack of relevant trademark rights, clear knowledge of respondent rights or legitimate interests, or clear knowledge of a lack of respondent bad faith (such as registration of the disputed domain name well before the complainant acquired trademark rights, (ii) facts which demonstrate that the complainant clearly ought to have known it could not succeed under any fair interpretation of facts reasonably available prior to the filing of the complaint, including relevant facts on the website at the disputed domain name or readily available public sources such as the WhoIs database, (iii) unreasonably ignoring established Policy precedent notably as captured in this WIPO Overview – except in limited circumstances which prima facie justify advancing an alternative legal argument, (iv) the provision of false evidence, or otherwise attempting to mislead the panel, (v) the provision of intentionally incomplete material evidence – often clarified by the respondent, (vi) the complainant’s failure to disclose that a case is a UDRP refiling, (vii) filing the complaint after an unsuccessful attempt to acquire the disputed domain name from the respondent without a plausible legal basis, (viii) basing a complaint on only the barest of allegations without any supporting evidence”.
The Panel considers that the Complaint is woefully inadequate and was doomed to failure. However the Complainant is representing itself and the failures may arise from a failure to appreciate the Policy and its application rather than any intentional misconduct. In these circumstances the Panel has concluded that a finding of RDNH is not necessary.
For the foregoing reasons, the Complaint is denied.
Nick J. Gardner
Date: July 2, 2020
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