WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lowe Lintas Private Limited v. Fei Zhu, Low Lintas QC
Case No. D2015-1441
1. The Parties
The Complainant is Lowe Lintas Private Limited of London, United Kingdom of Great Britain and Northern Ireland, internally represented.
The Respondent is Fei Zhu, Low Lintas QC of Shanghai, China.
2. The Domain Name and Registrar
The disputed domain name <lowelintas.com> is registered with Rebel.com Corp. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 14, 2015. On August 17, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 18, 2015, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 26, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 15, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 16, 2015.
The Center appointed Sir Ian Barker as the sole panelist in this matter on September 29, 2015. 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 Complainant, Lintas India Private Limited, trades as “Lowe Lintas” and is an advertising agency in India where it has seven offices. Lowe Lintas is one of the constituent brands of the Mullen Lowe Lintas Group, the Indian arm of a worldwide network of advertising agencies called the Mullen Lowe Group. The Mullen Lowe Group is a division of the Interpublic Group Inc., a company listed on the New York Stock Exchange.
The Complainant was registered in 1969 as Lintas India Private Limited. This registered name has not been changed since then, although the business has used several different trading names, all containing “Lintas”.
The use of the word “Lintas” derives from the Complainant’s origins as the Indian division of “Lever International Advertising Services” (known by the acronym “Lintas”) a corporation originally connected to Lever Brothers (now Unilever) which provided advertising services for its brands. Lintas has operated as an independent advertising agency network since 1930. Since then the name Lintas has been used consistently in India as the brand name despite various name changes elsewhere in the world and changes to the ownership, membership and structure of the original group of Lintas companies.
The Complainant became part of the Lowe and Partners Network (now known as the Mullen Lowe Group), a division of the Interpublic Group Inc. in 1999. It was at this point that the Complainant began to use the name “Lowe Lintas” as its trading name. At various times the Complainant has been referred to as “Lowe Lintas and Partners”, “Lowe Lintas India” and more informally as simply “Lowe Lintas”.
The Complainant has gained national and international recognition as an advertising agency and won numerous awards. Lowe Lintas in Mumbai was named the world’s third most effective agency in the index of the Most Effective Agency Offices Worldwide 2015 by Effie Worldwide. There is no registered trademark for the name “Lowe Lintas”.
The Complainant has used the domain <www.lowelintas.in> since 2009 to promote its services.
The Complainant gave the Respondent no authority to reflect its common law trademark in the disputed domain name.
The disputed domain name directs visitors to several third party sites relating to what may be described as “get rich quick” schemes or super deals on common products. None of the sites so accessed make any reference to Lowe Lintas.
The Respondent organization is stated as “Low Lintas QC” with an address in Shanghai, China. A Google search showed no use of either “Low Lintas QC” or “Lowe Lintas” by the Respondent.
The Respondent’s name, address and email address have been used to register some 902 domain names according to a reverse WhoIs search performed on behalf of the Complainant.
Five prior decisions under the Policy showed a “Fei Zhu” as respondent. In all of these decisions, the Respondent was reflecting a trade or service mark in the domain names at issue and a transfer of the domain names to the complainants was ordered.
The disputed domain name was registered on April 13, 2003.
5. Parties’ Contentions
The disputed domain name is identical to the common law trademark under which the Complainant has traded since 1999.
The Respondent has no rights or legitimate interests such as would permit the reflection of the Complainant’s common law trademark in the disputed domain name. None of the situations in paragraph 4(c) of the Policy applies to the Respondent.
The disputed domain name was registered and is used in bad faith. The Complainant and its common law mark was well-known in India at the date of registration of the disputed domain name and at that time had been an advertising agent for large Indian commercial entities such as Tata Holdings and Indian Railways.
The Respondent registered the disputed domain name for the purpose of selling it as is shown by a reverse WhoIs search which reveals that the disputed domain name is offered for sale with potential purchasers being asked to make an offer.
The Respondent’s registration of a large number of domain names – some of which include well-known trademarks – plus the record of decisions against the Respondent indicate bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant shall prove the following three elements:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) The 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
The Complainant has shown that it has common law trademark rights in India at least – to the name “Lowe Lintas” for purposes of the Policy. The information it supplied about its activities as one of the largest and most successful advertising agencies in India over many years confirmed its claim for a common law trademark under which it traded for many years.
The disputed domain name is identical or confusingly similar to the mark.
Accordingly, paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate Interests
The Complainant gave the Respondent no authority to reflect the trademark in the disputed domain name.
In the absence of any claim by the Respondent that one or other of the situations set out in paragraph 4(c) of the Policy applies to it, the lack of authority from the Complainant is sufficient.1 The Respondent could have filed a Response but did not do so.
Accordingly, paragraph 4(a)(ii) of the Policy is established.
C. Registered and Used in Bad Faith
There can be no doubt that the Respondent is using the disputed domain name in bad faith as is demonstrated by the “click-through” facility accessed through the disputed domain name. The Respondent is thus using the disputed domain name for commercial gain. His track-record of adverse UDRP decisions also indicates a pattern of registering well-known trademarks as domain names.
The difficulty is whether bad faith can be proved at the time of the registration of the disputed domain name in 2003 – 12 years ago. Bad faith at the time of registration needs to be proved as well as current bad faith use.
No explanation was advanced by the Complainant for not challenging the registration of the disputed domain name for 12 years. A further difficulty comes from the Complainant’s lack of a registered trademark and its reliance on a common law trademark. The Complainant has to show that the Respondent (who apparently is based in China) knew of the Complainant’s common law mark which was used extensively in India in 2003. There is no evidence that it was then used in other countries.
Although the name “Lowe Lintas” was well-known in India in 2003 as the agency representing major Indian commercial entities, that fact alone would not give rise to an inference that someone in China would or should have known of the fame in India of the common law mark.
However, in the absence of any Response from the Respondent, other factors cumulatively just tip the balance in favour of inferring bad faith registration. These are:
(a) The Respondent’s pattern of registering domain names incorporating trademarks which have been the subject of several successful proceedings under the Policy against the Respondent.
(b) The fact that the disputed domain name is for sale with potential buyers being asked to make an offer. This indicates that the intention of the Respondent in registering the disputed domain name was to sell it at a profit.
(c) The fact that the website accessed by the disputed domain name displays third-party hyperlinks to unrelated websites.
(d) The fact that the Respondent receives “click-through” fees from the website operation.
(e) The distinctiveness of the name “Lowe Lintas” and the unlikelihood that anyone would register a domain name comprising those words unless the registrant wanted to disrupt the business being carried on by those legitimately using that name. The fact that the given address for the Respondent refers to the name (“Low Lintas QC”) also points to a deliberate targeting of the Complainant by the Respondent.
Accordingly, paragraph 4(a)(iii) of the Policy is established.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <lowelintas.com> be transferred to the Complainant.
Sir Ian Barker
Date: October 9, 2015
1 Absent a Response, the Panel does not find the Respondent organization name – “Low Lintas QC” – used in registering the disputed domain name suggestive of any rights or legitimate interests as per paragraph 4(c)(ii) of the Policy.