WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Azimo Ltd. v. Vladimir Zubkov
Case No. D2016-2608
1. The Parties
Complainant is Azimo Ltd. of London, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Lewis Silkin LLP, United Kingdom.
Respondent is Vladimir Zubkov of Oxford, United Kingdom, self-represented.
2. The Domain Name and Registrar
The disputed domain name <azimoreview.com> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 22, 2016. On December 22, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 23, 2016, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on December 29, 2016. In accordance with the Rules, paragraph 5, the due date for the Response was January 18, 2017. The Center received an email communication from Respondent on December 30, 2016. On January 16, 2017, Respondent requested an automatic 4-day extension of the deadline to file a Response. The Center granted the requested extension and confirmed that the new deadline for the Response was January 22, 2017. The Response was filed with the Center on January 22, 2017.
The Center appointed Clive L. Elliott Q.C. as the sole panelist in this matter on January 30, 2017. 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 January 2012, and is authorised by the Financial Conduct Authority for the issuing of electronic money. It is licensed and regulated by HM Revenue & Customs as a Money Service Business. It is the owner of United Kingdom Trade Mark Registration No. 2617335 for AZIMO, entered in the register on July 20, 2012, and European Union Trade Mark Registration No. 012414488 for AZIMO, registered on April 18, 2014 (“Complainant’s Marks”) which are used in connection with its online money transfer business.
According to WhoIs the Domain Name was registered on May 9, 2015.
5. Parties’ Contentions
Complainant states that it facilitates money transfers from the United Kingdom, Eurozone, the Nordic countries and Switzerland around the world. It has overseas offices in Poland and the United States of America.
Complainant asserts that it has accrued significant goodwill and reputation in the United Kingdom and Europe under the AZIMO name. It says it has received numerous industry accolades and been featured in the national and international press. In the past four years, it has raised USD 45 million from investors around the world. Complainant further contends that the name AZIMO has become a distinctive identifier with it and its business, and the company has approximately 221,000 unique users per month to its site.
Complainant contends that as the Domain Name consists of the whole of Complainant’s Marks (being “azimo” followed by the descriptive word “review”), it is confusingly similar to Complainant’s Marks. Complainant further contends that the risk of confusion is intensified because Internet users familiar with Complainant’s domain name <azimo.com> could believe that the Domain Name is another domain name through which Complainant’s website can be accessed.
Complainant states that Respondent has no connection or affiliation with Complainant and has no licence, express or otherwise, to use Complainant’s Marks in a domain name or in any other manner, neither does he have any common law rights or legitimate interest in the Domain Name.
Complainant notes that Respondent was initially dissatisfied with a transaction between him and Complainant, which Complainant states was due to incorrect information being provided by Respondent. Complainant goes on to say that Respondent then made some public disparaging comments against Complainant, and although being offered the opportunity of raising a complaint with the Financial Ombudsman, Respondent has not done so.
Complainant notes that Respondent continued to use Complainant’s services several times after publishing criticisms, with his latest transfer being undertaken in August 2016.
Complainant contents that Respondent then purchased the Domain Name and has used it more widely to distribute the disparagement of Complainant. Complainant advises that the contents of the website at which the Domain Name resolves sets out a review by Respondent of Complainant based on Respondent’s experience with Complainant’s business (“Respondent’s Review”). In that review Respondent has made more disparaging allegations which are unfounded and infringe Complainant’s Marks.
Complainant states that on August 4, 2016, Respondent asked Complainant whether Complainant would “buy [the] domain azimoreview.com”from Respondent. Complainant submits that requesting money in return for transferring the Domain Name to Complainant supports Complainant’s assertion of the bad faith in which the Domain Name was registered.
Complainant further states that that Respondent uploaded two videos to the Domain Name on August 2, 2015 (together “Videos”), having received 38,655 views as of December 20, 2016, in which Respondent expressed similar views to the review posted on the Domain Name. Complainant states that as a result, Complainant, via its legal representative, wrote to Respondent notifying him that his comments on the Domain Name were defamatory of Complainant under the Defamation Act 2013. It also challenged Respondent as to the facts behind the basis of his criticisms of Complainant. In particular, Respondent claimed in the Videos that Complainant had committed a criminal act by hacking into Respondent’s computer, which Complainant denies.
Complainant advises that after Respondent failed to remove the Videos and review from the website, Complainant’s legal representative filed a complaint with YouTube on September 23, 2016 to request the Videos be taken down (“YouTube Complaint”). In light of the YouTube Complaint, YouTube blocked the Videos from public view on September 27, 2016. Complainant notes that this is also evidenced on Respondent’s Review, where one of the Videos has been removed on the basis that “the content is not available on this country domain due to a defamation complaint”.
Complainant claims that it has no problem with valid criticisms of its services, and in an effort to address Respondent’s complaints, the CEO of Complainant attempted directly to address the allegations of customer service failures that Respondent had made against it. Complainant further claims that despite its attempts to resolve the issue, Respondent has instead engaged in a barrage of long emails to Azimo staff, posted untrue and defamatory blogs and videos, and has refused to accept any responsibility for his own actions, accusing Complainant of aggravating his mental health issues.
Complainant submits that Respondent’s untrue criticisms levelled at Complainant via the Domain Name, has caused Complainant actual loss and it has noticed a drop in revenue following the postings.
Complainant submits that Respondent’s use of Complainant’s Marks is solely to damage Complainant’s reputation and for no other purpose.
Respondent denies that the Domain Name is confusingly similar to Complainant’s Mark, as it is made up of two words “azimo” and “review” and corresponds to the content of the website, which is Respondent’s review of his experience of the quality of service provided by Azimo.
Respondent contends that he has a legitimate interest in the Domain Name and that he has a right to critical speech. He states he created the Domain Name to advise other people of his personal experience related to the poor quality of the service provided by Complainant and for others to leave their comments, as set out below:
Respondent asserts that he receives no income from using the Domain Name, nor does he divert consumers or to tarnish Complainant’s Mark.
Respondent asserts that because he had received no replies from Complainant to his email requests, the only was he could get a reply from Complainant was by creating a public review on his blog. Respondent considers that his negative review of Complainant is fair and reflects the actual poor quality of the service provided by Complainant.
Respondent states that it did not contact the Financial Ombudsman as Complainant outlined in the Complaint because Complainant did not provide the information about the Financial Ombudsman until December 2015, whereas Respondent had experienced difficulties with the service from Complainant in April 2015, and had already published Respondent’s Review in May 2015.
Respondent acknowledges that he did use Complainant’s service again after his initial disappointment with Complainant because Complainant had written to Respondent advising that Azimo had improved their service, and Respondent states he only transferred money using Azimo when it was not urgent.
Respondent claims that Complainant has harassed Respondent by making many false statements and allegations against him and as such has caused him personal distress.
6. Discussion and Findings
The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) sets out an overview of panel positions on key procedural and substantive issues. At paragraph 2.4 the overview deals with the issue: “Can a criticism site generate rights and legitimate interests?”. That is the central issue in this proceeding.
The purpose of this analysis is to provide guidance where the site in question practices genuine, noncommercial criticism. That is, as opposed to situations where the domain name is said to be used for a free speech purpose but the panel finds that, in reality, it is primarily a pretext for commercial advantage, or otherwise impersonates the trade mark owner.
In addition, UDRP panels have assessed questions of whether a respondent may have a legitimate interest in using a trade mark as part of the domain name of a criticism site by reference to a range of considerations. These are as follows:
(i) whether the domain name has been registered and is used genuinely for the purpose of criticizing the mark owner;
(ii) whether the registrant believes the criticism to be well-founded and lacks intent for commercial gain;
(iii) whether it is immediately apparent to Internet users visiting the website at the domain name that it is not operated by the owner of the mark;
(iv) whether the respondent has refrained from registering all or most of the obvious domain names reasonably suitable for the owner of the mark;
(v) whether where appropriate, a prominent and appropriate link is provided to the relevant trade mark owner’s website; and
(vi) whether where there is a likelihood that email intended for the complainant will use the domain name in issue, senders are alerted in an appropriate way that their emails have been misaddressed.
The Panel will thus assess the merits of this particular Complaint, looking at the specific grounds.
A. Identical or Confusingly Similar
Complainant is the owner of United Kingdom Trade Mark Registration No. 2617335 and European Union Trade Mark Registration No. 012414488 for AZIMO which are used in connection with its online money transfer business.
Complainant has therefore established use and registration of Complainant’s Marks.
Complainant contends that as the Domain Name consists of the whole of Complainant’s Marks (being “azimo” followed by the descriptive word “review”), it is confusingly similar to Complainant’s Marks. The Panel accepts this contention.
It is therefore found that Complainant has rights in Complainant’s Marks, that Complainant’s Marks comprise a dominant and confusing part of the Domain Name, and that the requirements of paragraph 4(a)(i) of the Policy are met.
B. Rights or Legitimate Interests
Respondent is not apparently affiliated with Complainant and has not been authorized by Complainant to use and register its trade marks or to seek the registration of any domain name incorporating Complainant’s Marks.
It is clear that the registration and use of Complainant’s Marks preceded the registration of the Domain Name. Respondent does not dispute this. Instead he asserts that the Domain Name is used as part of a criticism site, aimed at reviewing and critiquing Complainant’s financial services, which he personally found wanting.
The Panel has set out above a number of factors assessed by other UDRP panels when domain names are used for criticism sites. In terms of assessing whether, in this case, Respondent has a legitimate interest in using Complainant’s Marks as part of the Domain Name the panel assesses the following considerations:
(i) whether the domain name has been registered and is used genuinely for the purpose of criticizing the mark owner
Respondent asserts that he created the Domain Name to tell other people of his personal experience related to the alleged poor quality of the service provided by Complainant. This seems to be the case; when Respondent’s blog is viewed — it states very prominently in the header that it relates to “My Bad Azimo Experience”. This suggests that the blog is being used to genuinely criticise Complainant. The extent to which those criticisms are justified is not the issue, the issue for purposes of this proceeding is whether Respondent is genuinely intent on criticising the trade mark owner, irrespective of the merits or justification of that criticism.
(ii) whether the registrant believes the criticism to be well-founded and lacks intent for commercial gain
Once again, Respondent’s criticisms appear to be well-founded. For better or worse, Respondent seems to have had a bad experience with Complainant and wishes to air his grievance.
In terms of whether Respondent acted in a manner which showed an intent to make commercial gain from the Domain Name, on balance (albeit by a relatively slim margin) the Panel concludes that there is insufficient evidence to conclude that such purpose existed. This is dealt with in more detail under the “bad faith” ground.
(iii) whether it is immediately apparent to Internet users visiting the website at the domain name that it is not operated by the owner of the mark
In the Panel’s view, it would be relatively apparent to any reasonably informed and circumspect Internet user that this is a criticism site, aimed at airing perceived shortcomings and grievances about Complainant and its financial services. This is apparent from the passage quoted above which illustrates the point.
(iv) whether the respondent has refrained from registering all or most of the obvious domain names reasonably suitable for the owner of the mark
Respondent seems to have registered a single domain name rather than a range of domain names, which inter alia might preclude Complainant from exercising its ability to register other domains, and which may indicate Respondent’s aim is less about pure criticism but more to be a nuisance and extract something out of Complainant. In other words, there is nothing to infer that Respondent has overreached in this respect.
(v) whether where appropriate, a prominent and appropriate link is provided to the relevant trade mark owner’s website
There is no evidence that Respondent has provided such a link. The question does however arise whether this is strictly speaking necessary under the circumstances, given that Respondent’s blog is apparently, and on its face, a bona fide criticism site, and that no other indicia of mala fides are evident.
(vi) whether where there is a likelihood that email intended for the complainant will use the domain name in issue, senders are alerted in an appropriate way that their emails have been misaddressed.
Respondent does not appear to do this.
In the Panel’s view, Respondent meets four of the above six criteria or considerations. On balance, Respondent satisfies the Panel that it is appropriate to draw an inference that the Domain Name is being used as part of a genuine criticism site and that Respondent is not primarily motivated by commercial considerations, but by what he perceives (rightly or wrongly) to be a genuine grievance arising from alleged bad service. The Panel has sympathy for Complainant in terms of the way it attempted to deal with Respondent’s grievances and allegations and misgivings about the manner in which Respondent has dealt with the matter. However, the merits or otherwise of the grievances are not matters which need be or can be determined by the Panel.
Complainant has therefore failed to establish that Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that Respondent has registered and used the Domain Names in bad faith. In the light of the findings above it is difficult to conclude that Respondent registered and used the Domain Name in bad faith.
Nevertheless, in terms of evidence of bad faith, the Policy states that for the purposes of paragraph 4(a)(iii), certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. These include circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to, inter alia, the complainant for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name.
This requires the sale or other commercial dealing to be the primary purpose and the consideration to exceed the registration cost of the domain name.
The situation in the present case is rather inconclusive on the above issue. On August 4, 2016 Respondent emailed Complainant stating: “If you have other questions or you want to buy my domain azimoreview.com, please contact me using this email”. This may suggest a wish to sell the Domain Name. However, no purchase price or value is identified. On September 16, 2016 Respondent wrote to Complainant’s lawyers stating: “I did not plan to sell the domain to Azimo when I bought it as I do not plan to sell it to Azimo now.”
The latter statement is inconsistent with the earlier offer, such as it were, to sell the Domain Name. Nevertheless, the statement, made just over a month later, is unambiguous to the extent that it indicates Respondent did not wish to sell the Domain Name at that point.
From this exchange, it appears that Respondent did offer to sell the Domain Name to Complainant at one point, but for whatever reason did not pursue that course and withdrew any potential sale offer relating to the Domain Name, relatively shortly thereafter. On the basis of the above, the Panel is reluctant to infer that Respondent’s primary purpose for registering the Domain Name was to sell the Domain Name back to Complainant for an amount in excess of its face value. Instead, it appears that the primary purpose was to review/criticise Complainant for its alleged deficiencies/poor service (which Complainant of course challenges) and that, viewed in context, Respondent did not seriously pursue any attempt to sell the Domain Name.
Accordingly, it follows that Complainant has failed to establish that the Domain Name was registered and used in bad faith in accordance with paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, the Complaint is denied.
Clive L. Elliott Q.C.
Date: February 27, 2017