WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Wealth Dragons Limited v. Branislav Gablas
Case No. D2017-0702
1. The Parties
The Complainant is Wealth Dragons Limited of Milton Keynes, United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented by Heald Solicitors LLP, United Kingdom.
The Respondent is Branislav Gablas of Dhaka, Bangladesh.
2. The Domain Name and Registrar
The disputed domain name <wealthdragons.net> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 7, 2017. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 10, 2017, the Registrar transmitted by email to the Center its verification response confirming:
(a) it is the Registrar for the disputed domain name;
(b) the disputed domain name is registered in the name of the Respondent and the contact details are correct;
(c) the Respondent registered the disputed domain name on September 20, 2016;
(d) the language of the registration agreement is English;
(e) the disputed domain name was registered subject to the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), and the UDRP applies to the disputed domain name.
The Center verified that the Complaint satisfied the formal requirements of the Policy, 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 April 11, 2017. In accordance with the Rules, paragraph 5, the due date for Response was May 1, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 2, 2017.
The Center appointed Warwick A. Rothnie as the sole panelist in this matter on May 11, 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
The Complainant is a company which was incorporated in England in 2009. Since that date, it has been promoting events and training programs in relation to property and asset-based wealth generation. It does not provide the training itself, but contracts that out.
The Complainant says that since 2009 it has spent a great deal of time, money and effort developing its brand. It says its advertising spend in 2016 was GBP 579,845. It also says that, in the last 90 days before the Complaint was filed, there were some 2,580 searches for it on Google.
The Complainant has a registered trademark in the United Kingdom: Trademark Number UK00002555110 for a composite mark consisting of a device of wings over the words "Wealth Dragons" and "Unleashed". This trademark was filed on August 6, 2010 and formally registered from that date in respect of the provision of training and education services.
A person by the name of Branislav Gablas from Slovakia enrolled in one of the courses arranged by the Complainant in 2014.
In December 2014, Mr. Gablas emailed the Complainant to express his dissatisfaction with the Complainant's services. Correspondence between the Complainant and Mr. Gablas followed and appeared to resolve Mr. Gablas' concerns. As a result, Mr. Gablas confirmed his enrolment and participation in a three-day course to be run under the Complainant's auspices in February 2015. Mr. Gablas subsequently enrolled in another of the Complainant's programs in May 2015.
As noted above, the disputed domain name was registered on September 20, 2016. The content on the website to which the disputed domain name resolved consisted largely of personal abuse and racial slurs directed to the principals of the Complainant. This came to the Complainant's attention in October 2016 and a "cease and desist letter" was sent to Mr. Gablas.
Mr. Gablas denied that he was the registrant of the disputed domain name or involved in the website. He said he was a member of a Facebook group of dissatisfied customers of the Complainant which was discussing avenues to seek redress from the Complainant.
At about this time, the content on the website was removed.
By January 2017, however, the content which the Complainant finds objectionable had been restored to the website. A further "cease and desist" demand was sent to Mr. Gablas. Mr. Gablas once again denied any involvement with the disputed domain name or the website. He did report, however, that the content from the website had been taken down again.
Mr. Gablas apparently refused to transfer the disputed domain name to the Complainant on the grounds that he was not the registrant and had no power to do so.
Eventually, the objectionable content was restored to the website to which the disputed domain name resolved and the Complainant brought this Complaint.
The email address used by Mr. Gablas to enroll in the course with the Complainant and the subsequent correspondence about the website was different to the email address in the Whois details confirmed by the Registrar as correct.
5. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest the Respondent of the disputed domain name, the Complainant must demonstrate each of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
No response has been filed. The Complaint has been notified, however, to the physical and electronic coordinates specified in the WhoIs record (and confirmed as correct by the Registrar) in accordance with paragraph 2(a) of the Rules. Accordingly, the Panel finds that the Complaint has been properly notified to the Respondent.
When a respondent has defaulted, paragraph 14(a) of the Rules requires the Panel to proceed to a decision on the Complaint in the absence of exceptional circumstances. Accordingly, paragraph 15(a) of the Rules requires the Panel to decide the dispute on the basis of the statements and documents that have been submitted and any rules and principles of law deemed applicable.
A. Identical or Confusingly Similar
The first element that the Complainant must establish is that the disputed domain name is identical with, or confusingly similar to, the Complainant's trademark rights.
There are two parts to this inquiry: the Complainant must demonstrate that it has rights in a trademark and, if so, the disputed domain name must be shown to be identical or confusingly similar to the trademark.
The Complainant has proven ownership of the registered trademark referred to in Section 4 above.
The second stage of this inquiry simply requires a visual and aural comparison of the disputed domain name to the textual components of the proven trademarks. In undertaking that comparison, it is permissible in the present circumstances to disregard the generic Top-Level Domain ("gTLD") component as a functional aspect of the domain name system: WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), paragraph 1.7. Questions such as the scope of the trademark rights, the geographical location of the respective parties and other considerations that may be relevant to an assessment of bad faith are not relevant at this stage. Such matters, if relevant, may fall for consideration under the other elements of the Policy.
Disregarding the ".net" gTLD, the disputed domain name differs from the Complainant's trademark by the omission of the winged device element and the word "unleashed". The words "Wealth Dragons" in the registered trademark are an important, verbal element of the trademark and are clearly recognizable in the disputed domain name being identical to the second level domain component of the disputed domain name.
Accordingly, the Panel finds that the Complainant has established that the disputed domain name is confusingly similar to the Complainant's trademarks and the requirement under the first limb of the Policy is satisfied.
B. Rights or Legitimate Interests
The second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the disputed domain name.
Paragraph 4(c) of the Policy provides that the following circumstances can be situations in which the Respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to [the Respondent] of the dispute, [the Respondent's] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or
(ii) [the Respondent] (as an individual, business, or other organization) has been commonly known by the [disputed] domain name, even if [the Respondent] has acquired no trademark or service mark rights; or
(iii) [the Respondent] is making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
These are illustrative only and are not an exhaustive listing of the situations in which a respondent can show rights or legitimate interests in a domain name.
The onus of proving this requirement, like each element, falls on the Complainant. Panels have recognized the difficulties inherent in proving a negative, however, especially in circumstances where much of the relevant information is in, or likely to be in, the possession of the respondent. Accordingly, it is usually sufficient for a complainant to raise a prima facie case against the respondent under this head and an evidential burden will shift to the respondent to rebut that prima facie case. See paragraph 2.1 of the WIPO Overview 3.0.
The Complainant states that it has not authorised the Respondent to use the disputed domain name. Nor is the Respondent affiliated with it. The disputed domain name is plainly not derived from the Respondent's name. The Complainant's trademark has been in use for a number years before the Respondent registered the disputed domain name. These factors usually combine to provide a sufficient basis to find a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name.
UDRP panels have recognised that registering a domain name in connection with operating a website critical of a trademark owner can be a legitimate fair use under the Policy. The defence of legitimate fair use is not necessarily excluded where the content on the website is expressed intemperately, if the views being expressed are genuinely held. UDRP panels have found, however, that such a defense does not necessarily extend the right to register a domain name identical to the complainant's trademark. See WIPO Overview 3.0, paragraph 2.6.2.
In the present case, the disputed domain name does not include any verbal element that makes it clear it is intended to be a "gripe site". In addition, the record does not disclose any complaints being made by Mr. Gablas with the Complainant in the period from May 2015 until registration of the disputed domain name in September 2016. That is not necessarily conclusive in itself. However, the Respondent has engaged in a course of conduct which has involved taking down the website when Mr. Gablas received a "cease and desist" letter and then restoring the content at a later date on at least two occasions. Even without taking into account the content posted on the website, this course of conduct on its own would indicate that the Respondent is not in fact attempting to air genuine grievances but is instead acting from an ulterior purpose.
In these circumstances, therefore, the Complainant has established a clear prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not sought to rebut that prima facie case. Accordingly, the Panel finds the Complainant has established the second requirement under the Policy also.
C. Registered and Used in Bad Faith
Under the third requirement of the Policy, the Complainant must establish that the disputed domain name has been both registered and used in bad faith by the Respondent. These are conjunctive requirements; both must be satisfied for a successful complaint: see, e.g., Burn World-Wide, Ltd. d/b/a BGT Partners v. Banta Global Turnkey Ltd, WIPO Case No. D2010-0470.
Generally speaking, a finding that a domain name has been registered and is being used in bad faith requires an inference to be drawn that the respondent in question has registered and is using the disputed domain name to take advantage of its significance as a trademark owned by (usually) the complainant.
In the present case, it is clear that the Respondent was well aware of the Complainant and its trademark when the disputed domain name was registered. If the Respondent is in fact Mr. Gablas, he had been enrolled in its programs before the disputed domain name was registered. In any event, the offensive material on the website appeared shortly after the disputed domain name was registered. Given that short time, the Panel is willing to infer that the disputed domain name was registered to provide a vehicle for that material.
It follows from the reasons for finding that the Respondent does not have rights or a legitimate interest in the disputed domain name that the disputed domain name was registered in bad faith. It also follows that the way the disputed domain name is being used is in bad faith.
Accordingly, the Complainant has established the third requirement under the Policy.
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 <wealthdragons.net> be transferred to the Complainant.
Warwick A. Rothnie
Date: May 25, 2017