The Complainant is Western Union Holdings, Inc. of Englewood, Colorado, United States of America, represented by The GigaLaw Firm, United States.
The Respondent is Awadallah Adnan 2707R of Jerusalem, Israel, self-represented.
The disputed domain name, <westernunionfoundation.com> (the “Domain Name”), is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 21, 2010. On May 21, 2010, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 22, 2010, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 31, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 20, 2010. On June 18, 2010 the Respondent sent an email to the Center in which he acknowledged that the Response was due by June 20, 2010 and went on “I ask if it will be possible to extend this date, as I need to get some documents for the process. You know that there is no urgency in this case, as this domain was never used, and will never be used, and was registered for a totally different and unthinkable reason”. By a further email of the same date the Respondent explained that he was involved in some legal proceedings in Italy with the Complainant and that there were papers in that case which he needed for this administrative proceeding but which he would not be able to recover until after July 15, 2010. The Center denied the Respondent's request for an extension of time, but indicated that any Response filed out of time would be put before the Panel and that it would be up to the Panel to decide whether or not to admit it into the proceeding.
On June 20, 2010 the Respondent followed up with a long email to the Center (copy to the Complainant's representative), which the Center has treated as the Response.
Over the next 12 days various further communications took place between the Respondent and the Center by both telephone and email. The Respondent expressed himself unhappy with the way the Complainant's representative and the Center had conducted themselves in the course of this administrative proceeding. In particular, he complained at (a) the timing of the Complaint (long after registration of the Domain Name yet timed to coincide with the Italian litigation referred to above), (b) the refusal of the Center to accede to his request for an extension, thereby impeding his ability to file a Response with full documentation, and (c) the fact that the Complainant's representative is also on the Center's list of panelists for disputes under the Policy. In the course of those communications, the Respondent indicated a desire (out of time) to have this dispute adjudicated by a three-person panel. Notwithstanding the fact that the request was made out of time, the Center noted that the Complainant's representative had not expressly objected to the Respondent's request out of time and granted the Respondent until July 6, 2010 to lodge a request in proper form together with the additional fee of USD 2,000.
July, 6, 2010 passed without any further communication from the Respondent. Accordingly, the Center appointed Tony Willoughby as the sole panelist in this matter on July 8, 2010. 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.
Paragraph 11(a) of the Rules provides that unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. During the Registrar verification process and in response to the request “Indicate the specific language of the Registration Agreement as used by the registrant”, the Registrar replied “the English language was used to inform the Registrant of both the Domain Registration Agreement as well as the Customer Master Agreement during the domain name Registration and Customer Signup process”. It is not clear to the Panel from that response whether English was in fact the language of the Registration Agreement, but in any event the Respondent has not protested at the use of the English language in this administrative proceeding and has communicated satisfactorily in that language. The Panel determines that English is the appropriate language for this administrative proceeding.
Finally, it should be noted that there appear to be proceedings taking place in Italy between the parties. However, there is no suggestion in the papers that these proceedings concern the Domain Name. Indeed it appears from the Response that the Respondent registered the Domain Name in response to something, which occurred during the proceedings. At all events it has not been suggested that the Panel should defer a decision pending the outcome of the Italian proceeding and the Panel does not propose to do so.
On July 13, 2010 the Respondent did inform the Center that the Italian Court had decided the pending case and that it “is awaiting translation into English”. In line with the above, the Panel sees no reason to await such translation.
The Complainant is an intellectual property holding company for the benefit of The Western Union Company, a company which was founded well over 100 years ago and which is now internationally known for its global money transfer services.
The Complainant is the proprietor of numerous trade mark registrations of or including the name WESTERN UNION, including by way of example United States registration no. 1818161 dated January 25, 1994 WESTERN UNION (words) in class 36 for services relating to money transfer.
The Domain Name was registered on August 6, 2009. The website to which the Domain Name is connected features the words “westernunionfoundation.com – home page”. There is no evidence before the Panel to suggest that it has been used in any other manner.
The Complainant contends that the Domain Name is confusingly similar to its WESTERN UNION trade mark.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name.
Finally, the Complainant contends that the Domain Name was registered and is being used in bad faith.
The Respondent's email to the Center of June 20, 2010, which is to be treated as the Response reads verbatim as follows:
The domain westernunionfoundation.com belongs to the Western Union family of brands and to the Western Union Company. This is when the Management of this Company respects International law and act in a correct legal and ethical way.
Not when the General Counsel of the Western Union Foundation, the General Counsel of Western Union & the Chief of staff is a Liar in Court, a perjurer, a racist accuser and a major collaborator in a frame up, a cover up, and a criminal conspiracy that may reveal acts of Bribery, falsifications of official documents, and forgery, and may be more.
The registration of westernunionfoundation.com, which was available for registration for anybody who wanted it, before 06/08/2009, was not done for any illegal reason, and definitely not in bad faith, and not for any financial gain.
The registration on 06/08/2009 was in direct response to one of the lies of Mr.[D.] Schlapbach esq. in Court in Rome, under oath, on 07/11/2007, when he falsely accused me of “opening accounts in their name.”
The above mentioned lawyer lied in every word he said that day against me, and was a liar in this accusation.
Luckily for me and justice, and unfortunately for him and eventually catastrophic for his Company, I have material proofs against everything said against me by Mr.Schlapbach and his colleagues, and documents against every criminal and evil accusation they did against me.
I may have to look into ways of proving the falsity of such accusations retroactively, may be by registering such a name, two years after the testimony in court and the lie, in order to show that he was lying, and that such accusations must have been studied and examined, and such a high ranking liar lawyer can bring shame to his Company, his profession, and his brand.
Western Union could block every name they want from the market, why do they wake up only after somebody buys it?
I offer this domain as a present to the incoming CEO, and to the Board of Directors of Western Union, asking them to conduct an internal investigation of the actions of their General Counsel and their previous management.
I ask them to study the material and documents of a file of Conspiracy and frame up ordered and approved by the previous management, and to examine the testimonies of their Senior Executive Vice Presidents in Court, in affidavits, and official documents.
I offer them to accept to an arbitration by WIPO or any other respectable mediation or arbitration centre, and I accept that their own lawyer, [Complainant's counsel], examine my claims (and their claims) in internet and electronic material + their lawyer, Mr.[K.] Kaspar, examine the aspects of the agreements between me and them, and any respectable legal office in the United States that deals with matters of Corporate Governance and ethical conduct, to examine the actions of their General Counsels and other Executives in my case and their fraudulent lies against me in Court.
Accepting any of these offers, Western Union will be saving itself from the criminality and actions of its people, and the new management will not be carrying the criminal baggage done in the past years.
Because the beautiful prospectus attached to this claim, and the codes of legal and professional conduct mentioned, and the ethical standards boasted, are the exact opposite of what was done in my case, and what was done in my case is criminality with money in every direction.
Finally, I must say something about what i have learnt in the last three weeks, and it is shocking, not for me personally, but on behalf of the hundreds, may be thousands of people being scammed around the world daily by thieves and crooks through Western Union.
I noticed that the lawyer of Western Union points to his successes in transferring domains to western Union, and presenting other cases concerning Western Union for use in his complaint [Complainant's counsel] and his clients could more easily prevent this from happening before it is done, and can easily buy or eliminate the suffering of the elderly and vulnerable people who are scammed by the crooks, using Western Union... because there is no brand in the world of today, that can generate instant immediate cash, for crooks and criminals, like Western Union.
Western Union is not Coca Cola, and not CITIBANK, its always around the corner, with cash for these criminals.
Western Union must be thankful to God, and then to me, for the keeping of westernunionfoundation.com out of the market for these crooks and criminals, because no other domain name ever registered, can come near in its significance, importance, or the risk of abuse attached to holding it.
I never wanted any financial gain, I want nothing in return, I never used this name, or would ever use it against Western Union.
Please give this domain to Mr.[H.] Ersek, COO and incoming CEO of Western Union, and/or to any member of his board of Directors, and to a Western Union clean from corruption and criminality.
Good luck for a new thinking, strategically, legally, and professionally.”
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered in bad faith and is being used in bad faith.
Before addressing these specific issues, the Panel notes that the Response concludes with a request that the Domain Name be given “to Mr.[H.] Ersek, COO and incoming CEO of Western Union, and/or to any member of his board of Directors, and to a Western Union clean from corruption and criminality”. While it is tempting to accede to that request and simply direct that the Domain Name should be transferred to the Complainant without addressing the elements of paragraph 4(a) of the Policy, the Panel does not believe that it is open to him to do so. The Panel takes the view that paragraph 10(a) of the Rules (“The Panel shall conduct the administrative proceeding in such manner as it considers appropriate in accordance with the Policy and these Rules”) precludes him from doing so. Not least he has to be satisfied that the Complainant is an appropriate recipient of the Domain Name under the terms of the Policy.
There is no dispute that the Complainant has trade and/or service mark rights in respect of the mark, WESTERN UNION. The Domain Name comprises the Complainant's trade/service mark, the word “foundation”, which in no way diminishes the distinctiveness of the Complainant's mark, and the generic “.com” domain suffix, which may be ignored when assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy.
The Panel finds that the Domain Name is confusingly similar to a trade mark or service mark in which the Complainant has rights.
The Complainant asserts (and the Respondent does not deny) that the Complainant has given the Respondent no permission to use its trade/service mark for this or any other purpose and that the Respondent is not in any way associated with the Complainant. The Complainant recites the circumstances set out in paragraph 4(c) of the Policy which if established shall be evidence of rights or legitimate interests for this purpose and contends that none of them is applicable.
Why did the Respondent register the Domain Name? The Respondent has variously said:
“… this domain was never used, and will never be used, and was registered for a totally different and unthinkable reason”. (his email to the Center of June 18, 2010)
“This domain was never used and will not be used in any illegal or illegitimate way”. (another email of the Respondent to the Center of June 18, 2010)
“The registration of westernunionfoundation.com, which was available for registration for anybody who wanted it, before 06/08/2009, was not done for any illegal reason, and definitely not in bad faith, and not for any financial gain”. (the Response)
“The registration on 06/08/2009 was in direct response to one of the lies of Mr.[D.] Schlapbach esq. in Court in Rome, under oath, on 07/11/2007, when he falsely accused me of “opening accounts in their name””. (the Response)
“I never wanted any financial gain, I want nothing in return, I never used this name, or would ever use it against Western Union. Please give this domain to Mr.[H.] Ersek, COO and incoming CEO of Western Union, and/or to any member of his board of Directors, and to a Western Union clean from corruption and criminality”. (the Response)
The penultimate quote would appear to indicate that the Respondent's reason for registering the Domain Name was hostile in that it was in response to an alleged lie given in the Italian proceedings referred to. An oddity is that registration of the Domain Name was said to have been in direct response to the alleged lie, but took place some 21 months after the event in question.
However, while the Domain Name was available for registration at date of registration by the Respondent, it was not a domain name in respect of which he can have had any right or legitimate interest. His interest in the matter was purely punitive in response to something done by or on behalf of the Complainant to which he objected.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
Registering a domain name confusingly similar to a trade mark of another, with knowledge of the trade mark owner's rights, without justification and for no reason other than to punish the trade mark owner is on its face abusive. It is not a good faith use of the domain name registration system.
The Panel finds that the Domain Name was registered in bad faith.
The remaining issue is as to whether or not it can be said to be being used in bad faith, for there appears to be no dispute that no active use of the Domain Name has ever been made. The Panel refers to paragraph 3.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, which reads:
“Can there be use in bad faith when the domain name is not actively used and the domain name holder has taken no active steps to sell the domain name or contact the trademark holder? (Passive holding)
Consensus view: The lack of active use of the domain name does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether respondent is acting in bad faith. Examples of circumstances that can indicate bad faith include complainant having a well-known trademark, no response to the complaint, concealment of identity and the impossibility of conceiving a good faith use of the domain name. Panels may draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa.”
The Respondent has declared that he has no intention of ever making any use of the Domain Name. Nonetheless he has evinced an emotional and deep-rooted dislike of the Complainant and people do not, in this Panel's experience, generally go to the trouble and expense of registering domain names for no purpose at all. If the Respondent genuinely had no intention of using the Domain Name, his reason for registering it is likely to have been to block the Complainant from registering it, which of itself is capable of being an indication of bad faith intent.
While the Respondent has indicated on a number of occasions that he is not proposing to use the Domain Name, he has not expressly said why he registered it. The nearest he gives to indicating that he had any purpose was in his email to the Center when he said that the Domain Name “was registered for a totally different and unthinkable reason”. Although the Respondent makes a vague reference to “crooks and criminals” who are prevented from registering the Domain Name, the Response contains no explanation for the reference. In the particular circumstances of this case the Panel believes that he is justified in drawing inferences adverse to the Respondent.
Certainly, in the view of the Panel, there is most unlikely to be a good faith use of the Domain Name that the Respondent will be able to make of it and in the view of the Panel the Respondent's behaviour to date has been such that there has to be a risk that he will commence an abusive use at some time in the future. In the view of the Panel, in all the circumstances of this case, this threat hanging over the head of the Complainant itself constitutes use of the Domain Name in bad faith.
The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.
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, <westernunionfoundation.com>, be transferred to the Complainant.
Dated: July 14, 2010