WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Allied Electronics Corporation Limited t/a altron v. WWWAdmin Ltd., ALT project , Eurobox Ltd.
Case No. D2007-1435
1. The Parties
The Complainant is Allied Electronics Corporation Limited t/a altron, South Africa, represented by Adams & Adams Attorneys, South Africa.
The Respondent is WWWAdmin Ltd., ALT project , Eurobox Ltd., St. Petersburg, Russian Federation, represented by Konsul Ltd., Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <altron.com> is registered with DomReg Ltd. d/b/a LIBRIS.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 28, 2007. On October 1, 2007, the Center transmitted by email to DomReg Ltd. d/b/a LIBRIS.com a request for registrar verification in connection with the domain name at issue. The request had to be repeated on October 4, 2007 and October 8, 2007. On October 12, 2007, DomReg Ltd. d/b/a LIBRIS.com transmitted by email to the Center its verification response indicating that WWWAdmin Ltd., ALT project and not EUROBOX Ltd. is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 24, 2007. 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 the Respondent of the Complaint, and the proceedings commenced on October 25, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was November 14, 2007. The Response was filed with the Center on November 14, 2007.
The Center appointed Zbynek Loebl as the sole panelist in this matter on November 30, 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.
In this administrative proceeding, the language of proceedings is an issue. Pursuant to Rules, Paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. The language of the registration agreement for the disputed domain name is Russian.
The Complaint has been submitted in English. After notification by the Center, the Complainant requested that English be the language of the proceedings. The Complainant argued that the Respondent communicated with the Complainant in English. The Complainant also mentioned that the costs of translations into Russian would be too high.
The Respondent has communicated objection to the Complainant's request. The Respondent stated the basic rules regarding the language of proceedings as mentioned above. In addition, the Respondent stated that he has difficulties with proper preparation of his Response due to the fact that the Complaint and its amendment have been submitted in English. The Respondent also mentioned that any filings with Russian courts subsequent to the administrative proceedings would have to be made in Russian language. The Response was filed in Russian.
The Center allowed the Complaint in English and the Response in Russian and left the issue of the language of the proceedings to be determined by this Panel.
The Panel considered this issue bearing in mind its broad powers given to him by Paragraph 11 (a) of the Rules. Due to the fact that (i) the Respondent acknowledged in its Response that he communicated with the Complainant in English (the Respondent's email describing his business in English dated January 23, 2007 is expressly referred to in the Response); and (ii) the Response dealt in detail with all the allegations contained in the Complaint and its amendment, the Panel considered that the Respondent had sufficient language capabilities to comprehend the Complaint and prepare the Response in Russian based on communications and documents in English.
Therefore, the Panel decided that the language of this proceedings is English. The Panel has not requested any translation into English of documents submitted in Russian (which the Panel understands) by the Respondent.
4. Factual Background
The Complainant is a major South African technology company. It controls the whole group of companies which operate in the whole world, including in Africa and Europe and employ some 12,000 people worldwide.
The Complainant is the proprietor of 7 trade mark registrations for the ALTRON mark and 7 applications for the ALTRON AEC logo trade mark in South Africa. The first of these marks was registered in 1990. In addition, the Complainant claims common law rights in and to the trade mark ALTRON. The Complainant has used the ALTRON trade mark for over 25 years in South Africa and other countries throughout the world.
The Respondent claims it is a technology company based in Russia which is active in IT and modern technologies, including neural networks, alternative networks and research. The Respondent did not substantiate this description by any further evidence of its existence and business activities.
The Respondent, according to a copy of a contract dated 23 October 2006, acquired the disputed domain name. The Respondent continued to use the service “domain by proxy” provided by Eurobox. The Respondent filed an application to register a mark “AltNet” as registered trade mark in Russia in March 2001.
5. Parties' Contentions
The Complainant contended that the disputed domain name is identical to its registered and common law trade mark ALTRON. The Complainant provided evidence of extensive and widespread use of its trade mark ALTRON, both in South Africa and internationally.
The Complainant also contended that the Respondent has no rights or legitimate interests in respect of the disputed domain names.
The Complainant alleged that the Respondent and Eurobox Limited (original registrant of the disputed domain name and current provider of the proxy services vis-à-vis the disputed domain name) were either the same entity, or related entities and that they were colluding to frustrate this administrative proceeding. As evidence of this argument, the Complainant showed that the Respondent and Eurobox Limited used the same postal address and had the same email address and telephone numbers. On the basis of this allegation, the Complainant contended that the domain name had not been used, in any manner or form whatsoever in connection with a bona fide use of the trade mark ALTRON, since the registration of the domain name on June 21, 2002.
In addition, the Complainant argued that the Respondent had not shown any interest in utilizing the disputed domain name in any way other than selling it for a profit. The Complainant evidenced his argument by the fact that the disputed domain name has been offered at an auction site first for 1,000 USD and then, after an attorney of the Complainant submitted an offer to purchase the domain name, the minimum price was increased to 11,000 USD. No actual use of the disputed domain name was evidenced.
Finally, the Complainant contended that the disputed domain names were registered and being used in bad faith. The Complainant repeated the above mentioned arguments. In addition, the Complainant argued that a 7 year old trade mark application mentioned by Respondent in one of his earlier communications with the Complainant did not grant any rights in the trade mark to the Respondent. Also, Eurobox Limited engaged repeatedly in registering domain names consisting of well-known trade marks.
The Complainant mentioned several UDRP Decisions illustrating the arguments it made.
Respondent reacted to each of the Complainant's arguments. Regarding the rights of the Complainant in the mark ALTRON the Respondent argued that “altron” is an often used word and not a specific, invented word. The Respondent provided information about multiple companies called ALTRON in different countries worldwide. Based on this fact the Respondent argued that the Complainant could not have exclusive rights to the mark ALTRON.
Regarding the claimed association between the Respondent and Eurobox Limited the Respondent firmly stated that these allegations are wrong and untrue. The Respondent stated that Eurobox Limited provided proxy services to the Respondent and that proxy services were considered as legitimate business. In addition, the addresses of the Respondent and Eurobox Limited are not the same, as shown in the original Complaint and its amendment.
Regarding lack of any bona fide use of the disputed domain name the Respondent referred to its email to the Complainant dated January 23, 2007, in which it explained its legitimate interests regarding the usage of the word ALTRON. The Respondent also provided a copy of the contract for the construction of a website “www.altron.com” dated December 18, 2006, by which the Respondent claims evidence to bona fide plans for the disputed domain name.
Finally, the Respondent declined that it ever offered the disputed domain name for sale and stressed that it acquired the domain name relatively recently, on October 23, 2006.
6. Discussion and Findings
The Panel came to the following conclusions, after reviewing the Complaint, its amendment and the Response:
A. Identical or Confusingly Similar
The Panel considers that the disputed domain name is identical with the registered trade marks of the Complainant for the ALTRON mark. As far as the Panel is aware “altron” is not a generic or descriptive term. The fact that it is used by other entities throughout the world does not mean that it is not protected. The Complainant evidenced its ownership of several registered trade marks for ALTRON.
B. Rights or Legitimate Interests
The Respondent has not established his rights or legitimate interests in the use of the disputed domain name. In particular, none of the circumstances listed under paragraph 4(c) of the Policy, which would serve as a proof of rights or legitimate interest in the domain name, have been convincingly presented by the Respondent. Respondent presented a copy of an application for a Russian registered trade mark AltNet and not ALTRON. The Respondent did not even prove that the mark AltNet has been registered as a trade mark since the date of filing – March 2001.
The domain name does not appear to be in use for any bona fide offerings of goods and services and there is no indication that the Respondent was known by the name “Altron”. In fact, the Respondent did not presented anything material which would evidence what it wrote in the email dated January 23, 2007 regarding the Respondent's existence and his plans for the future regarding the disputed domain name. The Respondent presented a copy of a contract for the development of a website “www.altron.com” – but this is a very simple type contract without any specification, samples, time schedule etc. which are regularly annexed to similar contracts. The contract as it was annexed could be a contract for a construction of any site. If such specifications and other associated materials existed, the Panel is sure the Respondent would have submitted them as evidence of his bona fide intentions and plans with the disputed domain name. Nothing was nevertheless presented. The Respondent also did not evidence the claim to have legally and openly acted under, inter alia, the “Altron” name, as it expressly wrote in the email to the Complainant dated January 23, 2007.
The Respondent is not authorized or licensed to use the Complainant's mark. The Panel has concluded that the Respondent does not have rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In the present proceedings, too much co-incidence seems to be related to the Respondent. We have here the same postal address, the same telephone numbers and email addresses (as evidenced by the Whois information) between the Respondent and Eurobox Limited, the offers for sale of the disputed domain name and lack of any material evidence of the Respondent's statements of bona fide plans, plus evidence of a pattern of conduct on the part of Eurobox Limited. All this combined leads the Panel to be persuaded by the Complainant's allegations about a direct relationship between the Respondent and Eurobox Limited. In the particular circumstances, the Panel finds that the disputed domain name has been registered and used in bad faith.
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, <altron.com> be transferred to the Complainant
Date: December 17, 2007