WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Bjorn Kassoe Andersen v. Direction International

Case No. D2007-0605

 

1. The Parties

Complainant is Bjorn Kassoe Andersen, Direction, of Denmark.

Respondent is Direction International, Australia.

 

2. The Domain Name and Registrar

The disputed domain name <direction.com> is registered with Tucows, Inc.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 20, 2007. On April 23, 2007, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On April 24, 2007, Tucows transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the administrative and technical contacts. 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 Respondent of the Complaint, and the proceedings commenced on May 8, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 28, 2007. The Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 31, 2007.

The Center appointed David H. Bernstein as the sole panelist in this matter on June 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

Because Respondent has defaulted, Complainant’s allegations of fact are accepted as true for purposes of this proceeding. Talk City, Inc. v. Robertson, WIPO Case No. D2000-0009 (February 29, 2000).

Complainant owns Direction, a consulting business based and incorporated in Denmark. Complainant owns the Denmark trademark DIRECTION (Reg. No. VR 1994 03811; issued June 10, 1994) and began operating his business under that name in 1994. Complainant acquired the domain name <direction.com> (the “Domain Name”) in 1998.

Mysteriously, and without any authorization from Complainant, the Domain Name was recently transferred from Complainant to Respondent and a corresponding change was made in the registrar of the Domain Name, from 000domains.com to Tucows, Inc. The transfer process was initiated on November 11, 2006. The Domain Name is currently registered to Respondent and used for a landing page on which Respondent offers search facilities and advertising links.

 

5. Parties’ Contentions

A. Complainant

Complainant seeks relief from the “hijacking” of the Domain Name. Because the Domain Name was formerly registered to Complainant and consists of Complainant’s trademark, Complainant asserts that the Domain Name is obviously identical to a trademark in which he has rights.

Complainant further alleges that Respondent has no rights or legitimate interests with respect to the Domain Name. Complainant argues that Respondent, acting under anonymity, does not appear to be commonly known by the Domain Name, does not appear to use the Domain Name or a corresponding name in connection with a bona fide offering of goods or services, and does not appear to be making a legitimate noncommercial or fair use of the Domain Name.

Finally, Complainant alleges that Respondent registered and is using the Domain Name in bad faith. Specifically, Complainant asserts that Respondent “stole” the Domain Name by gaining unauthorized access to its registrar account, changing the Domain Name’s registration information (name, email address, phone number, and password), and then, as the new administrative contact of record, initiating and approving the transfer of the Domain Name to Tucows, Inc. before Complainant could restore the original registration details. Complainant states that, unaware of the ongoing transfer, he regained control of the Domain Name account by proving his legal ownership of it to 000domains.com. However, Tucows took over the Domain Name from 000domains.com when the transfer process allegedly initiated by Respondent was completed. Tucows has no record of Complainant and, according to Complainant, is reluctant to transfer the Domain Name back to 000domains.com because, in accordance with ICANN policies, the transfer was approved by the Domain Name’s administrative contact at the time (Respondent).

Complainant argues that Respondent further demonstrated bad faith by posing as Complainant in an attempt to stop the investigation of the alleged theft, using servers in both Germany and Iran in order to act covertly, and providing registration information for the Domain Name that appears to be invalid. Additionally, Complainant alleges that Respondent’s email address has been used by a “domain hijacker” in the past.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

The burden for Complainant under paragraph 4(a) of the Policy is to prove:

(i) that the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(ii) that Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) that the Domain Name has been registered and is being used in bad faith.

Despite Respondent’s default, the Complainant must still support his assertions with actual evidence in order to succeed. See Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Decision Overview”), § 4.6 (available at “http://www.wipo.int/amc/en/domains/search/overview/index.html”). For the reasons discussed below, the Panel concludes that Complainant has satisfied his burden of proving all three of these factors by a preponderance of the evidence. See Bootie Brewing Co. v. Deanna D. Ward, WIPO Case No. D2003-0185 (May 28, 2003) (acknowledging consensus on use of preponderance of the evidence standard).

A. Identical or Confusingly Similar

Complainant’s trademark is registered with the Danish Patent and Trademark Office and, therefore, is entitled to a presumption of validity. See WIPO Decision Overview § 1.1 (“If the complainant owns a registered trademark then it satisfies the threshold requirement of having trademark rights.”).

Because the Domain Name is identical to the Complainant’s registered mark, the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Complainant has made a prima facie showing that Respondent lacks rights or legitimate interests. Although Respondent’s apparent anonymity makes it difficult to draw definitive conclusions, there is no basis in the record for finding that Respondent made a bona fide offering of goods or services under the Domain Name prior to the commencement of this dispute, has, despite its Whois-listed name, been commonly known by the name “direction”, or that Respondent is making a noncommercial or fair use of the Domain Name. See Policy paragraph 4(c).

Rather, as Complainant alleges, it appears that Respondent has unlawfully hijacked the Domain Name through deception and thievery. These allegations, which are uncontested given Respondent’s default, preclude any finding that Respondent’s use of the Domain Name is legitimate or that Respondent has any right to the use of the Domain Name. As a result, Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Though it is not clear exactly how Respondent gained control of the Domain Name, it does seem clear that this was done without the permission of Complainant and likely through improper means. Respondent appears to have changed the registration details for the Domain Name covertly, without giving notice to the Complainant or obtaining its authorization, using an email address that, Complainant alleges, has been linked to other instances of domain name theft. In the circumstances of the present case, the Panel finds that the record provides a sufficient basis for finding bad faith registration and use within the meaning of paragraph 4(a)(iii) of the Policy. See Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D2004-0955 (January 5, 2005).

 

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 <direction.com> be transferred to Complainant.


David H. Bernstein
Sole Panelist

Dated: June 27, 2007