e2e Technologies Ltd. v. Sarah Bouscaren
Case No. D2006-0946
1. The Parties
Complainant is e2e Technologies Ltd., Basel, Switzerland, represented by A. Braun Braun Héritier Eschmann AG, Switzerland.
Respondent is Sarah Bouscaren, Carlsbad, California, United States of America.
2. The Domain Name and Registrar
The disputed domain name <e2e.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 26, 2006, naming Sarah Bouscaren as Respondent. The Complaint as filed identified the registrar as Domaindiscover. On July 27, 2006, the Center transmitted by email to Domaindiscover a request for registrar verification in connection with the domain name at issue. On July 31, 2006, Domaindiscover replied that it was not the registrar of the domain name and that the registrar was eNom. The Center issued a Deficiency Notification on August 2, 2006, and Complainant filed an amended Complaint on August 4, 2006. On August 8, 2006 the Center sought registrar verification from eNom. On August 9, 2006, eNom transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing a link to the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on August 10, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 30, 2006. The Response was filed with the Center on August 30, 2006.
The Center appointed Desmond J. Ryan as the sole panelist in this matter on September 11, 2006. 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 domain name was created on October 22, 2003 (Complaint Annex 6). There is no evidence as to who was the first owner of the registration. On June 21, 2006, the domain name was listed for sale on BuyDomains.com’s website for sale at $28,000. A Whois.com search dated July 25, 2006, shows the then owner as “Rarenames, WebReg”, the registrar as “Domaindiscover” and the status as “RegistrarLock”. On August 2, 2006, Better-Whois.com showed the domain name as “Reserved”, the registrar as eNom, the server as earnware.com, the registrant, technical and administrative contacts as Sarah Bouscaren, and the status as “Locked”.
Complainant is a Swiss Corporation. Complainant gives no evidence apart from its trade mark registrations, as to its business activities, however, it appears from Respondent’s Annex 2 to be engaged in the design and production of software. It includes in its corporate name the sign “e2e”. It has subsidiaries in Australia, United Kingdom and the United States of America, all of which have the sign “e2e” in their corporate names.
Complainant is the owner of the following trademarks registered in Switzerland for software and software and computer related services.
- 476982 - e2e enabler – dated November 11, 2000
- 529774 - E2E logo and words “Simply Integrated” – dated
November 11, 2004
- 529775 - E2E logo – dated November 11, 2004
Complainant is also the owner of International Registration No. 744338 based on Swiss registration No. 476982 and claims to be the applicant for two further International Applications based on Swiss registrations No. 529774 and No. 529775.
Respondent is the Vice-President of Finance of Earnware Corporation, an American corporation. Earnware Corporation provides software and e-commerce services including a services platform providing telephony, e-mail, messaging, management and other services (Respondent Annex 3). Respondent asserts, that it has since 1997, used the expression “Earnware-to-Earnware” in respect of its messaging tools and that it intends to use the domain name in connection with marketing such tools.
The Panel notes that notwithstanding that Sarah Bouscaren is the registrant of the domain name and the Complaint is addressed to her as Respondent the Response was filed in the name of Earnware Corporation naming Sarah Bouscaren as its contact and authorized representative. In the circumstances of this case that fact does not appear to the Panel to raise an issue critical to its decision and the Panel accepts the Response as a response on behalf of Respondent, Sarah Bouscaren and deals with the Complaint on that basis.
5. Parties’ Contentions
Complainant asserts that the domain name is identical or confusingly similar to its registered trade marks. “E2E” Device Mark, “E2E Simply Integrated” and “e2e enabler”. It further points to the fact that the domain name constitutes the principal distinguishing features of its name and those of its Australian, American and United Kingdom subsidiaries.
Complainant further asserts that Respondent has no rights or legitimate interest in the domain name. She does not own a trademark in relation to the domain name and does not offer goods or services under the name.
In support of its contention that the domain name has been registered and is being used in bad faith Complainant points to the fact on July 26, 2006, the domain name was listed on the domain name seller website “www.sedoparking.com”. It further points to the fact that on June 21, 2006, the domain name was offered for sale at “www.buydomains.com” for $28,000.
Respondent does not address the question of the similarity of the domain name to Complainant’s trademarks. In relation to the question Respondent’s rights or legitimate interests Respondent asserts an intention to use the domain name in “marketing our messaging tools ‘Earnware-to-Earnware’“. Respondent further asserts it purchased the domain name on July 20, 2006, after some weeks of negotiation, but that confirmation of the purchase and domain access information was not provided until July 25, 2006 (Response Annex 1).
Respondent asserts that her dealings in relation to the domain name were with Buydomains.com and that no employee of Earnware Corporation had any direct dealings with the domain name owner. Respondent disclaims any knowledge of or responsibility for the actions of any previous domain name owner or for any redirections of the domain name between the time of purchase on July 20 and the time of transfer subsequent to July 25.
Respondent denies any intention to sell the domain name and asserts its intention to use it for marketing its Earnware-to-Earnware Messaging tools, which it asserts, are not in competition with Complainant’s computer system integration software.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Response did not address this issue and may therefore be taken to have conceded it. In the light of the Panel’s conclusion under paragraphs B and C below it is unnecessary to consider the issue. The Panel notes however that were it necessary to do so the Panel would have considerable doubt as to whether Complainant has established any rights in the expression “e2e” per se. Complainant’s device marks are elaborate graphic renditions of the e2e sign and/or are coupled with expressions implying a descriptive connotation to that sign. The Panel is aware of the common use of e2e in the IT field as an acronym for “enterprise to enterprise” and several other expressions such as “end to end”, “engineer to engineer” and many others.
B. Rights or Legitimate Interests
Complainant’s contention is based only on the facts that Respondent does not own a relevant trademark and the domain name resolved to different websites on the day before the Complaint was filed. It was not until that day Respondent had, for the first time, the ability to control the website. It is unclear on what day that control was actually assumed. Neither of these facts is sufficient to establish a lack of legitimate interest on the part of Respondent.
As indicated above Respondent in these proceedings is Sarah Bouscaren. It appears from the Response that the person intending to use the domain name is not using the domain name personally but rather has registered it for her company Earnware Corporation. Prima facie the company has a legitimate interest in using the domain name for its Earnware to Earnware service. Whether the company’s interest is sufficient to support the interest of its senior employee is open to question but it is not necessary to decide that question in view of the absence of any sufficient evidence to discharge the onus upon Complainant to make a prima facie showing of lack of any right or legitimate interest on Respondent.
The Panel therefore concludes that Complainant has failed to establish the ground required under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Complainant bases its allegation of bad faith on the facts that the domain name was listed for sale on “www.buydomains.com” on June 21, 2006, that on July 25, 2006, it was registered to RareNames, WebReg and that it appeared on the “www.sedoparking.com” website.
Respondent rebuts these allegations asserting that it purchased the domain name for use in connection with its Earnware to Earnware messaging software which it contends is not in competition with the goods and services supplied by Complainant. Respondent further points out that the acts to which Complainant refers occurred before it had control of the domain name. Whilst it may appear unusual that there should be a flurry of activity in relation to the domain name just one day before the Complaint was filed, the Panel can draw no adverse inference from that and there is no evidence to suggest that Respondent purchased the domain name otherwise than in good faith and for valuable consideration. The question of whether the original registration was obtained in bad faith is not definitive of the requirements of paragraph 4(a)(iii) of the Policy. In any event Complainant has failed to show bad faith registration.
Complainant has failed to establish the ground required under paragraph 4(a)(iii) of the Policy.
For all the foregoing reasons, the Complaint is denied.
Desmond J. Ryan
Dated: September 25, 2006