WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Anyjunk Limited v. Mohammad-Reza Asgari, Mr. Rubbish Services Inc.
Case No. D2010-2211
1. The Parties
Complainant is Anyjunk Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by Graham Watt & Co LLP, United Kingdom.
Respondent is Mohammad-Reza Asgari, Mr. Rubbish Services Inc. of Burnaby, British Columbia, Canada.
2. The Domain Name and Registrar
The disputed domain name <anyjunk.com> (the “Domain Name”) is registered with DomainPeople, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 17, 2010. On December 17, 2010, the Center transmitted by e-mail to DomainPeople, Inc. a request for registrar verification in connection with the Domain Name. On December 23, 2010, DomainPeople, Inc. transmitted by e-mail to the Center providing registrant and contact information different from the named Respondent. On December 28, 2010, the Center sent a communication to the Complainant in respect of the new information. On December 31, 2010, the Complainant filed an amended Complaint naming both Respondents.
The Center verified that the amended 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 Respondent of the Complaint, and the proceedings commenced on January 4, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was January 24, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent of his default on January 25, 2011.
The Center appointed Robert A. Badgley as the sole panelist in this matter on January 28, 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
Complainant was founded in 2004 as a “rubbish clearance service.” Complainant holds a United Kingdom trademark registration for the mark ANY JUNK? The registered mark is the above-quoted text situated within the outline of an elephant. The mark is registered in connection with “Waste removal, including collection, removal and disposal of household and commercial waste” in Class 39. The mark was filed for registration on December 10, 2005 and was registered on July 7, 2006.
Respondent, who is located in Canada, registered the Domain Name on March 30, 2003. There is no evidence in the record of Respondent’s use of the Domain Name in connection with any particular website or other activity. On November 22, 2010, Complainant’s counsel sent Respondent a letter alleging that Respondent was violating Complainant’s trademark rights and threatening to initiate a proceeding under the Policy. In order to resolve the dispute amicably, Complainant offered USD 4,000 for the Domain Name.
On November 27, 2010, Respondent answered the letter by e-mail. In clear but salty terms, Respondent refused Complainant’s offer and demanded USD 50,000, advising that he had already received a USD 40,000 offer for the Domain Name from a third party.
5. Parties’ Contentions
The salient factual allegations made by Complainant are captured in the Factual Background section above. Complainant also alleges, in largely conclusory terms, that it meets the three elements of a successful claim under the Policy.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
There is no question that Complainant holds rights in a mark whose text is comprised of the phrase “Any Junk?” The Domain Name is confusingly similar to the textual portion of the mark, the only difference being the question mark’s omission from the Domain Name.
Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] 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 [Respondent] (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 [Respondent] 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.
Complainant bears the burden of proof on the “rights or legitimate interests” issue (as it does for all three elements of the Policy). Louis de Bernieres v. Old Barn Studios Limited, WIPO Case No. D2001-0122 (March 26, 2001).
Because the Panel finds that the “bad faith” component of this Complaint fails, it will not address the “rights or legitimate interests” component.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) that Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that there is little way Respondent could have had Complainant or its mark in mind at the time it registered the Domain Name (which itself notably is comprised of dictionary terms). Complainant was not even in existence when the Domain Name was registered, and nearly three years passed between the date of the Domain Name registration and the registration of the mark – in another country – by Complainant. It is, therefore, without a justification on the present record to conclude that the Domain Name was registered in bad faith. Because the Policy’s “bad faith” requirement is conjunctive, requiring a showing of both bad faith registration and use, this Complaint must fail.
For all the foregoing reasons, the Complaint is denied.
Robert A. Badgley
Dated: February 1, 2011