WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Saurikit, LLC v. Cykon Technology Limited
Case No. D2010-2193
1. The Parties
The Complainant is Saurikit, LLC of California, United States of America, represented by Mintz Levin Cohn Ferris Glovsky and Popeo, PC, United States of America.
The Respondent is Cykon Technology Limited of Kowloon, Hong Kong SAR of China, self represented.
2. The Domain Name and Registrar
The disputed domain name <cydia.com> is registered with Fabulous.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 15, 2010. On December 16, 2010, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the disputed domain name. On December 17, 2010, Fabulous.com 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 December 22, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 11, 2011. Notification of Respondent Default was sent to the Respondent on January 12, 2011. On January 13, 2011 the Respondent requested extra time to file a Response, citing complexity, Christmas, New Year, and upcoming the Chinese New Year. On January 14, 2011 the Center declined an extension of time as the deadline had passed but undertook to notify the Panel of any communication.
A belated Response was sent to the Center on January 21, 2011.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on February 4, 2011. 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 factual background is extracted from the Complaint and the Response.
The Complainant creates, receives and distributes applications for the Apple iPhone mobile platform and for related devices, largely through what appears to be an unofficial market. Since at least as early as February 28, 2008 it has continually used the trademark CYDIA in that connection. The name CYDIA is taken from the Latin name of the codling moth caterpillar that grows inside an apple. The Complainant holds the following trademark registration:
CYDIA (in standard characters), United States Patent and Trademark Office (USPTO), registration number 3768836, international classes 9, 42. First use in commerce claimed February 28, 2008, application filed December 17, 2008, registered March 30, 2010.
The Complainant has received favourable coverage in the print and other media and is well known. Its products are distributed through its website “www.cydia.saurik.com” and are promoted on Facebook and Twitter.
The Respondent holds about 45,000 domain names. It registered the disputed domain name on December 12, 2002. This appears to have been parked or used to display links as a source of pay-per-click revenue until contact was received from the Complainant, since when it has displayed content related to mobile phone applications.
5. Parties’ Contentions
The Complainant’s extensive contentions include the following.
The Complainant contends that it has rights in the trademark CYDIA and it has produced a copy of the relevant USPTO registration document. It says that it has thereby established prima facie evidence of the trademark’s validity and distinctiveness.
The Complainant contends that the disputed domain name <cydia.com> incorporates the entirety of its trademark CYDIA and is confusingly similar. There is a likelihood that Internet users will mistakenly associate the disputed domain name with the Complainant.
The Complainant further contends that the Respondent does not have rights or legitimate interests in the disputed domain name. The Complainant has not authorised the Respondent to use its trademark. The Respondent’s use of the disputed domain name before receiving notice of the dispute was not in connection with a bona fide offering of goods or services because it was parked, then used as a link farm in connection with clothing and jewelry. After the Respondent learned of the Complainant the disputed domain name featured phone and computer products, and it became a discussion board after the Complainant registered its trademark. The Respondent is “Cykon Technologies Ltd” and is not commonly known as “Cydia”. The Respondent is not making a noncommercial or fair use of the disputed domain bame but is misleading Internet users, some of which, according to the content of the Respondent’s discussion board, evidently believe the corresponding website concerns the Complainant and its products.
The Complainant further contends that the disputed domain name was registered and has been used in bad faith. The Complainant cites paragraph 2 of the Policy and says that the undertakings therein apply both at the time of registration and upon renewal of a registration. The Respondent, on learning of the Complainant’s rights in the trademark CYDIA, effectively abandoned its own prior use of the disputed domain name by changing the website content to associate itself with the Complainant’s activities. The Complainant contends, with citations of previous cases under the Policy, that the change in use of a website to one involving bad faith could render that registrant’s representations under paragraph 2 of the Policy to be false, and that such a circumstance applies in the present case. The Respondent has intended to attract Internet users by confusion with the Complainant’s trademark for commercial gain.
The Complainant contends, with citations, that bad faith can be found where a domain name was registered before the relevant complainant registered its trademark, if the domain name has been used in bad faith.
The Complainant says that Internet users may believe the Respondent’s discussion board to be associated with the Complainant, and that for instance people ask questions about the downloading of CYDIA software and the Complainant cannot control the information given to the enquirer in reply. The Respondent created this discussion board in the knowledge of the Complainant’s rights in the trademark CYDIA. Previously the Respondent’s website contained pay-per-click advertisements and evidently generated revenue through links related to advertisements for iPhone and other devices. The Respondent’s URL has been found to appear in search results for the term CYDIA, being the Complainant’s trademark, potentially leading to at least initial interest confusion and loss of traffic intended for the Complainant.
The Complainant has cited a number of previous decisions under the UDRP that it wishes the Panel to consider as possible precedent.
Transfer of the disputed domain name to the Complainant is requested.
The Respondent denies the Complaint. Its contentions include the following.
It is not contested that the disputed domain name is identical or confusingly similar to the Complainant’s trademark. “Cydia” is, however, part of the scientific name of the apple coding [taken to mean codling] moth and caterpillar, Cydia pomonella. It cannot be an exclusive trademark and any person has the right to register a descriptive term as a domain name.
The Respondent submits that it has rights and legitimate interests in the disputed domain name. The Complainant has not submitted any evidence to show that the Respondent was aware of the Complainant’s rights in the trademark CYDIA on December 12, 2002. The Respondent is making a legitimate non-commercial and/or fair use of the disputed domain name in the discussion forum for certain Apple products without intent to mislead or to disrupt the Complainant’s business.
The Respondent contends that it adopted the biological nature of the caterpillars of the codling moth which develop inside an apple to refer to the applications for Apple products.
It is contended that an alleged screenshot exhibited by the Complainant is undated and is not evidence of when the Respondent’s discussion forum was launched.
The Respondent submits that the disputed domain name was registered over 6 years before the claimed first use in commerce of the Complainant’s trademark, and 7 years before the trademark registration date. The Respondent is using the disputed domain name without any intention to take advantage of the Complainant’s rights in the trademark CYDIA, and has a legitimate interest in it. The Respondent says that a bloc of the Complainant’s citations can be distinguished because they do not refer to the situation where the respective domain name predated the first use or first use in commerce of a trademark.
The Respondent further contends that the disputed domain name has not been registered or used in bad faith. The Respondent registered the disputed domain name on December 12, 2002, and has continuously owned and renewed it, whereas the Complainant’s trademark was filed on December 17, 2008, and issued on March 20, 2010. There is no evidence to show that the Respondent knew of the Complainant’s trademark or business on December 12, 2002. The Respondent submits, with citations, that the generally accepted view is that, absent certain limited exceptions, the registration of a domain name prior to the establishment of trademark rights precludes a finding that the registration was in bad faith.
The Respondent denies the Complainant’s allegation that it has engaged in a practice of registering domain names primarily for the purpose of selling them to trademark owners. It says it is a company specialised in website development and hosting services. It has been involved in only two domain name dispute cases and in one of these the respective Panel made a finding of reverse domain name hijacking against the respective complainant. The Respondent cites previous cases in support of a contention that the buying and selling of domain names may be, in and of itself, a legitimate business.
The Respondent contends that its noncommercial or fair use for a discussion forum of Apple products constitutes legitimate use of the disputed domain name registered years before the Complainant’s trademark, and is not for the purpose of misleading users or tarnishing the Complainant’s trademark for commercial gain. The Respondent says it is inevitable that some postings might touch upon the products of the Complainant, and that the following disclaimer has been displayed:
““Apple”, “iMac”, “IPad”, “iPhone”, “iPod”, “Mac”, “Macbook” are trademarks of Apple Inc.
“Cydia” is a trademark of Saurik, LLC.
“Cydia.com” is NOT affiliate with SaurikIT, LLC and its products/services in any way.
“Cydia.com” is a discussion forum for “Apple” related products.
“Cydia.com” is NOT taking any responsibility for comments, suggestions, or recommendations posted in the forum.”
The Respondent has cited a number of previous decisions under the UDRP that it wishes the Panel to consider as possible precedent.
The Respondent requests that the Complaint be denied and requests a finding of reverse domain name hijacking against the Complainant.
6. Discussion and Findings
Paragraph 4(a) of the Policy states that the Respondent is required:
“…to submit to a mandatory administrative proceeding in the event that a third party (a “complainant”) asserts to the applicable Provider, in compliance with the Rules of Procedure, that
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.”
The Complainant has made the relevant assertions as above. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute.
The Respondent did not submit a formal Response in time, and was issued with a Notice of Respondent Default. Shortly thereafter the Respondent asked for extra time, which formally had to be declined by the Center. Subsequently a communication in the format of a comprehensive Response was received, which the Panel notes was sent to the Complainant at the same time. The Panel will exercise its discretion to admit the Response.
A. Identical or Confusingly Similar
The Complainant has produced sufficient evidence to satisfy the Panel that it has rights in the registered trademark CYDIA. The Respondent concedes that the disputed domain name <cydia.com> is confusingly similar to the Complainant’s trademark and the Panel so finds in the terms of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has the onus of proving that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has asserted prima facie that this is so, stating that it has not permitted the Respondent to use its trademark CYDIA, and by addressing the provisions of paragraph 4(c) of the Policy, which set out certain circumstances whereby any respondent may be able to establish sufficient rights or legitimate interests for the purposes of paragraph 4(a)(ii) of the Policy. These circumstances, which are without limitation, are:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The Complainant asserts that any use of the disputed domain in the terms of paragraph 4(c)(i) of the Policy, above, has not been bona fide since the website was initially parked in about late 2002-2004, then in 2004-2008 used as a click-through site with links for clothing and jewelry. It says that only after the appearance of the CYDIA brand did the website feature advertisement links to products or services related to the Complainant’s area of business, and only after the Respondent was made aware of the impending registration of the CYDIA trademark was the site recast as a discussion forum.
In interpreting the condition “before any notice to you of the dispute” under paragraph 4(c)(i) of the Policy, the Panel notes that the earliest inkling of any contact from the Complainant was the Complainant’s approach about a possible sale of the disputed domain name on October 17, 2008, and the earliest informal mention of trademark protection and the involvement of lawyers was in the Complainant’s email of December 18, 2008. The posting of a website for no other purpose than the generation of pay-per-click revenue, as it evidently was in 2004-2008, may in appropriate circumstances amount to a bona fide activity, but may not be so if the disputed domain name on which the website is posted has been registered and is being used in bad faith, which has yet to be decided.
There is no evidence that the Respondent has been generally known as “Cydia” within the meaning of paragraph 4(c)(ii) of the Policy.
The Respondent’s contention in terms of paragraph 4(c)(iii) of the Policy is that its use of the disputed domain name as a discussion board for certain Apple products constitutes a legitimate noncommercial and/or fair use, without intent to mislead users or to disrupt the Complainant’s business. The inception date of the discussion forum is in question, with the Complainant stating that according to its enquiries the portrayal of a starting date of July 3, 2009 is backdated and false, since at least as late as March 6, 2010, the website was still a link farm. Furthermore, the Complainant says, discussion postings with dates such as May 8, 2010 and April 29, 2010 precede the posting that has the purported date of July 3, 2009. The Complainant’s implication is that the discussion board was opened after the Complainant filed its trademark application and near to or later than the date when the trademark was granted. The Respondent says there is no evidence to prove this.
The provisions of paragraph 4(c)(iii) of the Policy might reasonably envisage the activities of, for example, a generic discussion group, fan or criticism site, educational service, charity organisation, church or other noncommercial entity, or other fair use. On the facts, the disputed domain name has been used, most of the time, for the commercial purpose of the generation of click-through revenue. It may reasonably be concluded on balance that its conversion to links in a similar area of business to that of the Complainant, and more recently into a discussion group in a similar area, have been more in the nature of a sharpening of the profile of the disputed domain name in the eyes of the Complainant than in the exercise of any noncommercial or fair use.
Nevertheless, a finding on the question of whether a respondent has rights or legitimate interests may sometimes be inseparable from the questions of whether there has been registration and use in bad faith, and in the present case the Panel finds it unnecessary to state a decision under paragraph 4(a)(ii) of the Policy for the reasons that follow.
C. Registered and Used in Bad Faith
The Complainant must prove under paragraph 4(a)(iii) of the Policy that the disputed domain name “has been registered and is being used in bad faith”. Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that “shall be evidence of the registration and use of a domain name in bad faith”:
“(i) circumstances indicating that you [the Respondent] have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your website or location.”
The majority of panels since the inception of the UDRP, but not all, have tended to interpret paragraph 4(a)(iii) of the Policy to mean that the two distinct conditions, registration and use, apply in conjunction and must be separately proved. This presents the Complainant with the onus of proving on balance, or sufficiently construing, bad faith in the mind of the Respondent at the time of registration, which was about 5 years before the Complainant started to use the trademark CYDIA.
Previous decisions under the Policy may not be binding precedent as such, but on the other hand interpretation arises out of the decision making process and similar fact cases tend to be decided similarly, thereby providing some basis of stability for users of the UDRP (paragraph 4.1, WIPO Overview of WIPO Panel Views on Selected UDRP Questions; “the WIPO Overview”).
Nevertheless, a different interpretation of paragraph 4(a)(iii) of the Policy, having the effect of accepting either bad faith registration or bad faith use as fulfilling the requirement of “has been registered and is being used in bad faith”, has been discussed, notably in the case of <mummygold.com> (City Views Limited v. Moniker Privacy Services / Xander, Jeduyu, ALGEBRALIVE, WIPO Case No. D2009-0643, commonly referred to as “Mummygold”). This fusion of registration and use, or unified concept, was achieved in the Mummygold decision through several points of argument, tracing back to the early case of Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, in which bad faith use was deemed from activities that were essentially passive holding.
With respect to the learned panelist in Mummygold, that approach has prompted some debate (see for example Eastman Sporto Group LLC v. Jim and Kenny, WIPO Case No. D2009-1688), and more recently Mile, Inc. v. Michael Burg, WIPO Case No. D2010-2011.
Having reviewed the debate, and the citations submitted, the Panel takes the following view. The Policy is incorporated by reference into the contract between a registrant and its registrar. In general a contract stands upon its wording, the words should be accorded their ordinary meanings, and an adjudicator should not re-interpret wording or imply a term in a contract unless the contact as a whole would otherwise founder. To this Panel the meaning of “has been registered and is being used” is plainly understood, is conjunctive and does not present any difficulty in interpretation. The Panel is unpersuaded of the need for any transmutation of the word “and” into the word “or”.
In reaching this position the Panel notes that the administrators of some domains that have different dispute Policies from the UDRP have conspicuously adopted different requirements and therefore different wording. They have deliberately used the word “or” in the part of their Policy that sets out the need to prove either registration or use in a manner broadly equivalent to the UDRP’s bad faith (abusive, unfair etc.). Nominet (.UK domain names), the European ADR Rules (.EU domain) and the New Zealand Domain Name Commission (.NZ domain) all specify the alternative “or”. The Hong Kong Domain Name Registration Company Limited Policy, in respect of either general (.HK) or individual (.IDV.HK) domains, and of course the UDRP, require that “your domain name has been registered and is being used in bad faith”. Thus, some administrations have consciously chosen the conjunctive “and”, some the alternative “or”.
Advantages and disadvantages of both versions have been canvassed. For example “and” may protect an innocent Respondent from the predations of the later registrant of a similar trademark, whereas “or” may make it easier for a deserving Complainant to avoid a contrived defence by an artful cybersquatter. Nevertheless, this Panel is reluctant to contemplate that the respective drafters of the different Policies did not understand their own carefully chosen wording, or to impute a changed meaning to plain words, or to contradict the principle that a contract means what it says.
A further ambiguity might lie in the wording of paragraph 4(b) of the Policy. It might be argued that on a literal reading, any one circumstance listed in paragraphs 4(b)(i) - (iv) of the Policy, if found proven, is evidence of “registration and use”. This Panel is not motivated to stray from the principle that words are governed by the fuller context of previous text, which in paragraph 4(a)(iii) of the Policy invokes a separation of registration and use, and that the preamble of paragraph 4(b) of the Policy refers collectively to the various connotations of registration or use that follow in paragraphs 4(b)(i) - (iv).
The Complainant is thus not absolved from the requirement to prove bad faith registration. Its claimed first use of the trademark CYDIA was on February 28, 2008, its trademark application was filed on December 17, 2008, and the trademark registration was granted on March 30, 2010. The disputed domain name was registered on December 12, 2002, being 5 years and 2 months earlier than the first use of the trademark and 6 years earlier than the application date. Prima facie, there appears to be little likelihood that the registration of the disputed domain name could have been in bad faith with respect to the Complainant or could have conflicted with a trademark that did not come into use for another 5 years.
The reasonable principle that a domain name does not conflict with a non-existent trademark has exceptions (paragraph 3.1 of the WIPO Overview). For example, the use of inside knowledge of an impending trademark registration, or the anticipation of a new company name and trademark through merger or acquisition, if proven on the balance of probabilities, could be evidence in support of bad faith registration. The Panel has seen no evidence of any such circumstances.
The Complainant has attempted to overcome the 5 year difference by a succession of points of argument, with citations, that appear to group into two propositions. The first includes the following points. (1) Paragraph 2 of the Policy continues to apply to the registrant at the time of renewal. (2) Transfer of ownership, including between associated parties, constitutes a fresh registration. (3) With the late change to the nature of the website, the Respondent effectively abandoned its own prior use of the disputed domain name.
If the intended implication is that the Respondent, by breaching paragraph 2 of the Policy created for itself a fresh registration at renewal, crucially being after the Complainant’s trademark came into use, then the Panel is unable to grasp that argument or to read the word “re-register” into the word “renew” in paragraph 2 of the Policy. The facts are supported by the Complainant itself, which evidently did its own ample research and in an email dated December 18, 2008 to the Respondent, said “... as near as I can tell (with various tools, including archive.org), you’ve owned this domain name straight since at least 2004, if not a couple of years before that ...”.
The second proposition is that: (1) Paragraph 2 of the Policy continues to apply to the registrant at the time of renewal. (2) The Respondent has committed bad faith use, through confusion, under paragraph 4(b)(iv) (and others) of the Policy. (3) Bad faith (which the Panel takes to mean bad faith registration here) can be found where the disputed domain name was registered before the Complainant acquired trademark rights if there has been bad faith use.
Not uncommonly, clear evidence of use in bad faith under paragraph 4(a)(iii) of the Policy has been used to impute, without difficulty, a corresponding state of mind in the Respondent at the time of registration. In other words, the bad faith use may demonstrate, on balance, similar bad faith intent at the time of registration. The respected Panelist in Mummygold goes a major step further, however, and provides a detailed argument leading to the proposition: “Clearly, as under the Telstra analysis, in this Panel’s view bad faith registration can occur without regard to the state of mind of the registrant at the time of registration, if the domain name is subsequently used to trade on the goodwill of the mark holder, just as bad faith use can occur without regard to the fact that the domain name at issue has not been or has been only passively used” (original emphasis).
Mummygold stresses an ongoing obligation not to infringe the representations in paragraph 2 of the Policy, and continues: “If a party uses the domain name in the future so as to call into question the party’s compliance with the party’s representations and warranties, there may be retroactive bad faith registration.”
The present Panel, with respect, is not persuaded of any linkage whereby the usage construed from the passive holding in Telstra could provide a parallel (“just as”) for imputing nefarious intent at the time of registration in a different case in which, on the facts such as they may be, plainly none existed. The key reason is that the “state of mind of the registrant at the time of registration” is historical fact, and to make an assumption “without regard to” that state of mind is to proceed without regard to the facts. In reality the registration may well have been legitimate at the time and on the facts.
The learned panelist’s proposition in Mummygold would introduce a considerable leap from retrospective discovery of bad faith registration on an analysis of the facts, to a retroactive creation of bad faith registration that may fly in the face of the facts.
The present Panel can find no evidence that the Respondent, by registering, if speculatively, the Latin genus name Cydia as a domain name in 2002, was at that time in a state of mind to act in bad faith towards the holder of a trademark that would not exist for another 5 years. Trading or intending to trade in domain names, in and of itself and absent any circumstance proven to the contrary, is not illegitimate.
In the terms of paragraph 4(a)(iii) of the Policy the Panel finds that the Complainant has failed to prove that the disputed domain name was registered in bad faith, and accordingly the final Decision is given for the Respondent.
The Panel will in this case refrain from making a finding in respect of use (as distinct from registration) in bad faith, and will not revisit the undecided question of whether the Complainant has proven that the Respondent does not have rights or legitimate interests in the disputed domain name, for the reason that it seems likely that business between the Complainant and the Respondent is unfinished, and the Panel does not wish to disturb the business equilibrium.
Reverse Domain Name Hijacking
The Respondent requests a finding of reverse domain name hijacking (RDNH). According to paragraph 1 of the Rules:
“Reverse Domain Name Hijacking means 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 states in part:
“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.”
Where found to be warranted, findings of RDNH are essentially declaratory, and carry no sanction as such, except odium.
In this context it may be salutary to present a post-script encapsulation of the underlying dispute in the Panel’s assessment. The Respondent owns about 45,000 domain names and clearly is in business with them. The Respondent says little about its business but it may reasonably be inferred that domain names are sometimes sold, which is not in itself disreputable.
The Complainant is in business trading in applications (“apps”). These are extra programs that people buy for mobile phones and the like and fall into two categories: officially supplied by the phone company, or unofficially produced. The Complainant is associated with the latter and has submitted substantial media commentary with circled asterisks drawing attention to paragraphs such as (Los Angeles Times): “About 4 million iPhone and iPod Touch units had been jailbroken as of last August, and were accessing apps from a sort of black-market storefront called Cydia, the marketplace’s founder told Wired. The store is a haven for many developers that Apple, the gatekeeper to its Apps Store, has ignored or turned away.”
The Complainant adopted the business name “Cydia” because of the association of the codling caterpillar of that name with apples.
The Complainant operates through the website “www.cydia.saurik.com”. Given the evident familiarity of the Complainant with the computing world, it is within reasonable contemplation, at the very least, that the Complainant checked for the availability of the disputed domain name before finding it taken and settling for “www.cydia.saurik.com”. Since then the Complainant has tried to obtain the disputed domain name, first by trying to negotiate a price, then by sending a lawyer’s letter asserting trademark rights and demanding a transfer at cost, then by bringing this proceeding.
The Respondent for its part has invested in a large stock of domain names, presumably in the expectation that a few may earn a lot, and the rest can be monetised (earning revenue as link farms) in the meantime. With the disputed domain name the Respondent may have struck lucky, having one that an operator wishes for. As a business ploy the Respondent has reinforced the virtues of its commodity by decorating it with items relating to the Complainant’s business.
Thus, this is essentially a business dispute in which the Complainant has tried to use the UDRP as leverage. The Respondent has shown itself to be capable of defending its interests. In reverse domain name hijacking the Panel might look for, among other scenarios, heavy and unfounded legal threats being heaped upon a helpless individual of shining innocence.
If the Complainant believes its trademark is infringed, that alone is a different matter for resolution outside the UDRP.
Partly for the previously stated reason of not wishing to disturb the possibly unfinished business between the Parties, the Panel declines to enter a finding of reverse domain name hijacking in the circumstances of this case without further comment on the merits of that request.
For all the foregoing reasons, the Complaint is denied.
Dr. Clive N.A. Trotman
Dated: February 18, 2011