WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Intelligentsia Coffee & Tea, Inc. v. Ashantiplc Ltd / NamingRights.Com, LLC
Case No. D2012-2075
1. The Parties
Complainant is Intelligentsia Coffee & Tea, Inc. of Chicago, Illinois, United States of America, represented by Quarles & Brady LLP, United States of America.
Respondent is Ashantiplc Ltd of New York, New York, United States of America represented by John Berryhill, PhD Esq; NamingRights.Com, LLC of Hong Kong, China.
2. The Domain Name and Registrar
The disputed domain name <intelligentsia.com> (the “Domain Name”) is registered with Backslap Domains, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 18, 2012. On October 19, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 19, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on October 25, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on October 29, 2012.
The Center verified that the Complaint together with 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 October 30, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 19, 2012. The Response was filed with the Center on November 19, 2012.
The Center appointed Michael A. Albert, M. Scott Donahey, and Richard G. Lyon as panelists in this matter on December 21, 2012. The Panel finds that it was properly constituted. Each member of 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 is owner of the following trademark registrations:
INTELLIGENTSIA, United States Reg. No. 2,599,643, filed April 26, 2001 and registered on July 23, 2002.
INTELLIGENTSIA FRESH ROASTED COFFEE, United States Reg. No. 3,433,987, filed February 9, 2007 and registered on May 27, 2008.
INTELLIGENTSIA DIRECT TRADE, US Reg. No. 3,433,988, filed February 9, 2007 and registered on May 27, 2008.
Respondent is the current registrant of <intelligentsia.com>. Respondent contends it became registrant of <intelligentsia.com> as early as May 19, 2002.
5. Parties’ Contentions
In its Amended Complaint, Complainant alleges that the Domain Name was created on May 19, 2001. Complainant further alleges:
(i) the Domain Name <intelligentsia.com> is confusingly similar to Complainant’s INTELLIGENTSIA trademark.
(a) Complainant is owner of INTELLIGENTSIA trademarks, including three valid and subsisting United States registrations.
(b) Complainant is engaged in the specialty coffee business, selling coffee and tea products at coffee bars, over the Internet, and through outside vendors. Complainant has continuously used the INTELLIGENTSIA name and mark in connection with its services since at least as early as July 1996, and has expanded its business and use of the mark from the United States to international markets.
(c) Complainant has actively promoted its specialty coffee goods and services on its website, “www.intelligentsiacoffee.com”, since February 23, 1997.
(d) Complainant has actively promoted goods with its INTELLIGENTSIA mark by way of social media sites, including Facebook and Twitter.
(e) Complainant’s INTELLIGENTSIA mark has become recognized by consumers throughout the world as designating Complainant as source of Complainant’s products due to extensive marketing efforts. This recognition and these efforts occurred “[l]ong before the acts of Respondent complained of herein.”
(ii) Respondent has no rights or legitimate interests in the Domain Name.
(a) Respondent is not and has never been authorized to use Complainant’s INTELLIGENTSIA trademark.
(b) prior to any notice to Respondent of the dispute, there is no evidence that Respondent used or made preparations to use the Domain Name in connection with a bona fide offering of goods and services.
(c) Respondent is not making a legitimate noncommercial or fair use of the Domain Name; it registered the Domain Name to mislead and divert consumers by attracting them through the confusingly similar Domain Name and collect revenue by featuring sponsored links on its search engine.
(d) the Domain Name is not the name, business name, or common name of the Respondent, and Respondent had no legitimate basis to register the Domain Name.
(e) “upon information and belief”, Respondent obtained the Domain Name with the full knowledge of Complainant’s prior use and ownership of its INTELLIGENTSIA mark.
(iii) Respondent registered and is using the Domain Name in bad faith.
(a) Respondent registered the Domain Name with the intent to create a parked page with sponsored links that misuses Complainant’s trademark and takes advantage of Internet users that seek goods / services using their web browser’s address / location / URL bar instead of a search engine.
(b) Respondent’s use of the Domain Name constitutes bad faith under paragraph 4(b)(iii) of the Policy. “Upon information and belief”, Respondent registered the Domain Name primarily in order to disrupt Complainant’s business. In doing so, Respondent is preventing Complainant from using the Domain Name to advertise / promote / sell its products.
(c) Respondent’s use of the Domain Name constitutes bad faith under paragraph 4(b)(iv) of the Policy, because Respondent’s use of the Domain Name constitutes attracting consumers for commercial gain by deceptively leading consumers to believe either that Respondent is affiliated with Complainant, or that the website is sponsored, approved, or endorsed by Complainant. Respondent uses the Domain Name “merely” to advertise sponsored links. “Previous WIPO cases have found bad faith on part of Respondent where disputed domain name has been used as a parking page with affiliate links”.
In its Response, Respondent alleges:
(i) Complainant has not shown that the Domain Name is identical or confusingly similar to a trade or service mark in which Complainant has rights, in part because the term “intelligentsia” is a common dictionary word that is associated with and used by a variety of parties, including Respondent.
(a) Complainant’s discussion of current Facebook and Twitter usage does not address Complainant’s reputation at the time of Respondent’s registration.
(b) Complainant’s alleged belief regarding the date of Respondent’s acquisition of the Domain Name (as stated in the Complaint) —May 19, 2001—pre-dates the registration date of all of Complainant’s trademark registrations.
(c) The term “intelligentsia” is neither exclusive nor unique to Complainant, and Complainant’s rights in the term are limited. Respondent provides two (2) examples of United States Trademark Registrations, effective after Complainant’s trademark registration date, that involve the term “intelligentsia”. Respondent also provides eleven (11) examples of trademarks, trade names, and domain names of third parties that use the word “intelligentsia”.
(ii) Complainant has not proven that Respondent has no rights or legitimate interests in the Domain Name.
(a) Respondent’s interests in the Domain Name may be “expectation interests in the use of the domain name for a bona fide purpose prior to notice of a dispute”.
(b) Respondent acquired the Domain Name on May 19, 2002; a clerical error (as a result of which Respondent was not identified as the registrant) was corrected in March 2004.
(c) Complainant’s INTELLIGENTSIA mark (United States Reg. No. 2,599,643) is the only relevant mark. From that mark, Respondent asserts that Complainant’s rights are limited to services related to coffee, tea, and coffee shops. Respondent’s registration and use of the Domain Name has spanned over a decade, and has always been for purposes independent of the goods and services recited in Complainant’s relevant mark. Additionally, Complainant has not alleged that Respondent used the Domain Name in connection with specialty coffee and tea goods and services.
(d) The Domain Name is presently directed to a monetization service, converged primarily on topics relating to personal finance.
(e) Parking and landing pages or pay-per-click links are permissible in instances where domain names consist of a dictionary or common word and there is no capitalization on trademark value of the word.
(iii) Complainant has not proven that Respondent registered and used the Domain Name in bad faith.
(a) Complainant’s contention that its long-standing registration and use of the Domain Name is “disruptive” or “diversionary” to relevant consumers are “registrant independent allegations” and are supported by no reason, facts, evidence, or basis.
(b) “The Complainant’s claim in connection with coffee and coffee shops certainly does not confer to the Complainant a monopoly in the word, and the Respondent has not used the domain name in any way which interferes with the Complainant’s limited rights”.
(c) Complainant is faced with a heightened burden to show specific facts demonstrating bad faith because this is a “common phrase” dispute; Complainant has not met this burden.
(d) Complainant’s belief that the Domain Name was registered by Respondent prior to any of Complainant’s trademark registrations—and Complainant’s failure to address any resultant notice issues regarding its rights –is “astonishing”.
(e) Complainant has not addressed what it was doing when the Domain Name was registered—Respondent points out that at that date Complainant only had one coffee shop in Chicago; and in any event, Respondent denies knowledge of this coffee shop.
(f) Complainant has not raised, for a decade, any objections to Respondent’s purported “disruption” of its business.
(g) “Respondent has engaged in use of a dictionary word for a variety of purposes, and has not once in ten years attempted to divert a single consumer seeking a single coffee bean or cup of coffee”.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (3) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant is owner of the INTELLIGENTSIA trademark registration, United States Reg. No. 2,599,643, filed April 26, 2001 and registered on July 23, 2002. The Domain Name <intelligentsia.com> combines two elements—(1) Complainant’s INTELLIGENTSIA mark and (2) the generic top-level domain (“gTLD”) “.com”.
The Panel finds that the Domain Name is identical to Complainant’s mark, because the gTLD “.com” is typically irrelevant for the purposes of a Policy paragraph 4(a)(i) analysis and insufficient to distinguish the domain name from a trademark. See Pomellato S.p.A v. Richard Tonetti, WIPO Case No. D2000-0493 (July 7, 2000) (finding <pomellato.com> identical to complainant’s mark because the generic top-level domain “.com” after the name POMELLATO is not relevant); The Federation of Gay Games, Inc. v. Cary H. Hodgson and Gary Scanlon, WIPO Case No. D2000-0432 (June 28, 2000) (finding that the domain name <gaygames.com> is identical to complainant’s registered trademark GAY GAMES).
B. Rights or Legitimate Interests
A complainant must first make a prima facie case that respondent lacks rights and legitimate interests in the disputed domain name under Policy paragraph 4(a)(ii), and then the burden shifts to respondent to show it has rights or legitimate interests in the domain name. See Hanna-Barbera Productions, Inc. v Entertainment Commentaries, NAF Claim No. FA741828 (August 18, 2006). Under Policy paragraph 4(c), legitimate interests in domain names may be demonstrated by showing that: (i) before any notice of this dispute, respondent used, or demonstrably prepared to use, the domain names or a name corresponding to the domain names in connection with a bona fide offering of goods or services; (ii) respondent has been commonly known by the domain names, even if no trademark or service mark rights have been acquired; or (iii) respondent is making a legitimate noncommercial or fair use of the domain names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark at issue.
Here, Complainant alleges that (a) Respondent is not authorized to use Complainant’s INTELLIGENTSIA trademark; (b) there is no evidence that Respondent used or made preparations to use the Domain Name in connection with bona fide offering of goods and services; (c) Respondent registered the Domain Name to mislead and divert consumers by attracting them through the confusingly similar domain name; (d) the Domain Name is not the name, business name, or common name of Respondent, and thus Respondent had no legitimate basis to register the Domain Name; and (e) that “upon information and belief”, Respondent obtained the Domain Name with the full knowledge of Complainant’s prior use and ownership of its INTELLIGENTSIA mark. While the evidentiary burden on Complainant has been recognized as generally light to establish its prima facie case,1 we note that here Complainant provides little or no cognizable evidence beyond these bare assertions.
We also note that a prior UDRP panel, considering a similar set of operative facts (and similar arguments from this same Respondent), acknowledged that “a respondent may have a right to register and use a domain name to attract Internet traffic based on the appeal of a commonly used descriptive term, even when the domain name is confusingly similar to a complainant’s registered mark”. Masai Clothing Company ApS v. Ashantiplc Ltd., WIPO Case No. D2012-0271 (May 10, 2012). The Panel further held that “whether Respondent adopted and used the disputed domain name because of its trademark value or because of its descriptive value would determine the extent to which Respondent has a legitimate interest”. Id.
While we are doubtful that Complainant meets its burden, as did the panel in Masai Clothing Company, we refrain from ruling on whether the Complaint has established a prima facie case or whether Respondent has proven the existence of rights or legitimate interests in the Domain Name. Such a ruling is not necessary because, as discussed below, the Panel finds that Complainant is unable to establish that Respondent registered and used the Domain Name in bad faith as required under Policy paragraph 4(a)(iii).
C. Registered and Used in Bad Faith
Whether a domain name is registered and used in bad faith may be determined by evaluating four (non-exhaustive) factors set forth in paragraph 4(b) of the Policy: (i) circumstances indicating that the registrant has registered or 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 the registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant 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 the registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location.
Complainant has not alleged the first factor. To the extent that Complainant has alleged the second and third factors, the Panel finds that Complainant has not provided sufficient evidence to prove that Respondent had knowledge of Complainant’s purported rights at time of registration. Complainant’s various assertions—that Respondent intended to create a parked page that takes advantage of Internet users seeking Complainant’s trademark, that Respondent’s reason for registering the Domain Name was to disrupt Complainant’s business, and that Respondent is deceptively leading consumers to believe an affiliation that did not exist—are entirely unsupported.
The closest Complainant comes to providing evidence suggesting that Respondent may have known about Complainant’s rights at the time of registration appears to be its INTELLIGENTSIA mark (United States Reg. No. 2,599,643).2 The mark was filed April 26, 2001 and registered on July 23, 2002. Respondent admits that at earliest it acquired the Domain Name on May 19, 2002. The Panel notes that the effective date of Complainant’s registration is after Respondent’s acquisition of the Domain Name.3 Based on the above and referenced evidence produced by the parties, the Panel finds Respondent registered the Domain Name without actual knowledge of the INTELLIGENTSIA mark and did not register the Domain Name in bad faith under Policy paragraph 4(a)(iii).
This leaves the fourth factor, which concerns use of the Domain Name in bad faith without express reference to Respondent’s knowledge at time of registration. As noted before, Complainant has presented little beyond unsupported allegations.
In response, Respondent asserts that it has established a pattern of good faith registration and legitimate use of domain names. Respondent directs the Panel to review Masai Clothing Company ApS v. Ashantiplc Ltd., WIPO Case No. D2012-0271 (October 5, 2012) and Max Mara Fashion Grp., S.r.l. v. Ashantiplc Ltd., NAF Claim No. FA1458069 (October 4, 2012), in which Respondent prevailed. Panels have used prior UDRP cases decided in favor of respondents as evidence that respondent was not engaged in a pattern of preventing trademark holders from registering domain names containing their marks in bad faith under Policy paragraph 4(b)(ii). See American Culinary ChefsBest v. Vertical Axis, Inc, NAF Claim No. FA991959 (August 22, 2007). Respondent also argues that it has consistently configured and used the Domain Name in connection with a variety of commercial search services unrelated to those goods and services that Complainant markets (i.e. coffee and tea). Respondent provides descriptions and screenshots of the resolving websites associated with the Domain Name since 2002 to support this contention. See Response at page 6-7 and Exhibit G.
We find Complainant has not offered sufficient evidence regarding Respondent’s purported bad faith. While Internet users may mistakenly arrive at the Domain Name in a search for Complainant, there is no indication that Respondent is attempting to take advantage of this mistake under Policy paragraph 4(b)(iv). See Mule Lighting, Inc. v. CPA, NAF Claim No. FA95558 (October 17, 2000) (finding no bad faith where respondent has an active website that has been in use for two years and where there was no intent to cause confusion with complainant’s website and business). Accordingly, the Panel finds that Complainant failed to meet the burden of proof of bad faith registration and use under Policy paragraph 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, NAF Claim No. FA406512 (March 9, 2005) (finding that complainant failed to establish that the respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy paragraph 4(a)(iii); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., NAF Claim No. FA133676 (January 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith).
Because the Panel finds that Respondent has not violated any of the factors listed in Policy paragraph 4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy paragraph 4(a)(iii), the Panel finds that Respondent has not registered or used the Domain Name in bad faith. See Societe des Produits Nestle S.A. v. Pro Fiducia Treuhand AG, WIPO Case No. D2001-0916 (October 12, 2001) (finding that where the respondent has not attempted to sell the domain name for profit, has not engaged in a pattern of conduct depriving others of the ability to obtain domain names corresponding to their trademarks, is not a competitor of complainant seeking to disrupt complainant's business, and is not using the domain name to divert Internet users for commercial gain, lack of bona fide use on its own is insufficient to establish bad faith); see also Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech. Ltd, NAF Claim No. FA406512 (March 9, 2005) (finding that complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish UDRP paragraph 4(a)(iii)).4
For the foregoing reasons, the Complaint is denied.
Michael A. Albert
M. Scott Donahey
Richard G. Lyon
Date: January 7, 2013
I join the Panel’s decision to deny the Complaint and its opinion without reservation. I write separately because unlike my colleagues I would include a finding of Reverse Domain Name Hijacking (RDNH) in the Panel’s decision.
In my view RDNH is a matter the Panel should consider in an appropriate case whether or not a respondent requests it. As the panel in Goway Travel Limited v. Tourism Australia, WIPO Case No. D2006-0344, put it: “The Rules [paragraph 15(e)5 specifically put the burden on the Panel to determine whether a complainant has tried to use ‘the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name”. Each panel owes the integrity of the UDRP a duty to take due notice in its decision of a complaint that after reasonable inquiry complainant or its representative “knew or clearly should have known at the time that it filed the complaint that it could not prove one of the essential elements required by the UDRP” and is based upon “a respondent’s use of a domain name [that] could not, under any fair interpretation of the reasonably available facts, have constituted bad faith”. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, (“WIPO Overview 2.0”), paragraph 4.17, third paragraph.
This case fits both of these examples from the WIPO Overview 2.0. As noted by the Panel, the Complaint provides no satisfactory evidence of Respondent’s use of the disputed domain name at any time in a manner deemed bad faith under Policy precedent, thus defying two longstanding and generally accepted Policy precedents: that the Policy and Rules require proof not just unsupported allegations;6 and that bad faith requires targeting complainant or its mark – not just incorporation of complainant’s mark into the disputed domain name.7
This Complaint has further fundamental deficiencies. Several other widely accepted principles and rules of decision are either not addressed or not countered with evidence or argument. Complainant makes no allegation that any of Respondent’s pay-per-click use of the disputed domain name ever capitalized on the value of Complainant’s mark. Paragraph 2.6 of the WIPO Overview 2.0 speaks to this: “Panels have generally recognized that use of a domain name to post parking and landing pages or PPC links may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising from a "bona fide offering of goods or services" or from "legitimate noncommercial or fair use" of the domain name, especially where resulting in a connection to goods or services competitive with those of the rights holder. As an example of such permissible use, where domain names consisting of dictionary or common words or phrases support posted PPC links genuinely related to the generic meaning of the domain name at issue, this may be permissible and indeed consistent with recognized sources of rights or legitimate interests under the UDRP, provided there is no capitalization on trademark value”.
I could go on, but I shall summarize by stating that the Complaint and scanty evidence that accompanies it boil down to no more than “I have a trademark, you don’t, ergo I’m entitled to your domain name”. I likely would have voted to deny this Complaint had Respondent defaulted.8
Paragraph 3(b)(xiv) of the Rules requires a complainant to certify in the complaint that “the assertions in this Complaint are warranted under these Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument”. Here that certification was made by Complainant’s representative, an attorney described on her law firm’s website as an expert in intellectual property issues. I believe a professional filing a pleading on behalf of a party in a UDRP proceeding should have at least a minimal knowledge (or, if initially without knowledge, make a proper investigation) of the Policy, the Rules, and precedent developed under them well enough to know that bad faith is not proven with conclusionary allegations and pay-per-click pages alone.
A finding of RDNH could be said to be an empty gesture. As with any statement by any panel, it has no collateral estoppel or res judicata effect in any subsequent litigation or administrative proceeding, indeed even in any subsequent Policy proceeding brought by the same party or representative. Limited though this censure may be, though, it is sometimes the only way for a panel to deter future abuse of the Policy and to remind parties and professionals who invoke the Policy of its limits, rules, and means of abuse. In my opinion the circumstances of this case warrant an RDNH finding for just that reason.
Richard G. Lyon
Date: January 7, 2013
1 See AOL LLC v. Gerberg, NAF Claim No. FA 780200 (September 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
2 Respondent spends some time expressing astonishment that Complainant pursued this action under the belief that Respondent’s registration of the Domain Name was on May 19, 2001. See Response at page 10 (“What makes this case somewhat more ill-framed than the run-of-the-mill non-infringing dictionary word situation is the Complainant’s complete failure to address the fact that the Complainant believed the domain name to have been registered prior to any single piece of evidence in the Complaint showing any rights pre-dating what the Complainant believed to have been the registration date of the domain name.”) The Panel notes that this was likely a typographical error on the part of the Complainant. Compare Amended Complaint at page 7 (“The domain name was registered on May 19, 2001 [. . .]”) with Amended Complaint, Annex 1 (“Record created on 19 May 2002”). The Panel also notes that had Complainant made no typographical error, it still provided no supporting evidence supporting its allegations of bad faith.
3 Respondent notes that a clerical error resulted in Respondent’s name not being listed as Registrant in May 2002, and that this error was corrected in March 2004. See Response at page 5. Even if the Panel were to hold that the evidence presented only allowed a conclusion that Respondent registered the Domain Name in March 2004, the Panel would still find that Complainant has not provided sufficient evidence for a showing of bad faith.
4 A majority of the Panel notes that Complainant provided little enough support in its Amended Complaint regarding Respondent’s bad faith that had Respondent pressed the issue, a finding of Reverse Domain Name Hijacking (“RDNH”)—i.e. a finding that Complainant was “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name”—might have been appropriate. One member of the Panel finds it appropriate to make such a finding regardless (a concurring opinion of Panelist Richard Lyon which follows, and prior supporting cases including e.g., MetaQuotes Software Corp. v. Name Administration Inc. (BVI), WIPO Case No. D2012-1475 (October 5, 2012) (where the Panel, without prompting from Respondent, found RDNH after taking into account the number of years between registration of the disputed domain name and the UDRP Complaint—9 years—and Complainant’s actual knowledge, evidenced in prior correspondence, that Respondent registered the disputed domain name before Complainant had acquired any trademark rights).
5 Paragraph 15(e) provides in pertinent 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”.
6 WIPO Overview 2.0, paragraph 4.6; see also Western Research 3000, Inc. v. NEP Products, Inc., WIPO Case No. D2004-0755 (“The Policy requires the Complainant to prove each of the three elements”. (emphasis in original; citation omitted)); Rules, paragraphs 3(b)(xv) and 10(b)(referring to “evidence”).
8 To be sure, the Complaint does not include misleading contentions, as in Coöperatie Univé U.A. v. Ashantiplc Ltd / c/o Domain Name Privacy LLC, WIPO Case No. D2011-0636, or reveal an obvious and improper ulterior motive, as in Wall-Street.com, LLC v. Marcus Kocak / Internet Opportunity Entertainment (Sports) Limited, Sportingbet PLC, WIPO Case No. D2012-1193. But still Complainant or its representative owes the Panel an explanation of why this Panel should depart from well-settled Policy precedent. Id.; Liquid Nutrition Inc. v. liquidnutrition.com/Vertical Axis Inc., WIPO Case No. D2007-1598.