WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Wealth Dragons Limited v. Rich Pacey
Case No. D2017-0856
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 Rich Pacey of Bedworth, United Kingdom, self-represented.
2. The Domain Name and Registrar
The disputed domain names <wealthdragons.co> and <wealthdragons.org> (the "Domain Names") are registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 27, 2017. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On April 28, 2017, 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 May 2, 2017. In accordance with the Rules, paragraph 5, the due date for Response was May 22, 2017. The Response was filed with the Center on May 21, 2017.
The Center appointed Ian Lowe as the sole panelist in this matter on May 31, 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 registered in England and Wales and was founded in 2009. It is a promoter of events and training programmes in property and asset-based wealth. The Complainant is the registered proprietor of United Kingdom trademark number UK00002555110, comprising a device and word mark WEALTH DRAGONS UNLEASHED registered as of August 6, 2010.
The Respondent and his wife have known the Complainant and its principals since 2013 and, prior to May 2015, had taken two courses organised by the Complainant. In May 2015, the Respondent attended a three-day Forex Elite Membership Programme organised by the Complainant which was provided by an experienced Forex Trader under contract to the Complainant who now specialises in Forex education. The programme was designed to give students a good grounding in Forex (foreign currency exchange) trading and, following the three-day course, students were given mentoring for the next 12 months.
The Respondent communicated regularly with the programme mentor throughout the programme and in November 2015 made positive comments about both the Complainant and about Forex. However, in June 2016, at the end of the one-year programme, the Respondent made a complaint to the Complainant, stating that he was dissatisfied with the quality of the course and that he believed this had resulted directly in his poor trading performance. The Respondent wanted a full refund of the cost of the programme. In July and September 2016 offers of a partial refund were made by the Complainant to the Respondent but these were not accepted.
The Domain Names (and the domain name <wealthdragons.org.uk>) were registered by the Respondent on October 14, 2016. The Domain Names resolve to parking pages provided by the Registrar.
5. Parties' Contentions
The Complainant contends that it has unregistered trademark rights in respect of the mark WEALTH DRAGONS as a result of its substantial trading under that name since it was founded in 2009 and its extensive marketing by reference to WEALTH DRAGONS over the last six years including spending some GBP 580,000 on advertising in 2016. It is also the registered proprietor of the United Kingdom device and word mark WEALTH DRAGONS UNLEASHED registered in 2010. The Complainant notes that, ignoring the country code Top-Level Domain ("ccTLD") and generic Top-Level Domain ("gTLD") suffixes ".co" and ".org", the Domain Names both comprise only the entirety of the mark WEALTH DRAGONS. Accordingly, the Complainant contends that the Domain Names are identical or confusingly similar to a trademark in which it has rights.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Names and that the Respondent registered and is using the Domain Names in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. The Complainant points out that no active use is being made of the Domain Names and there is nothing to suggest that the Respondent has made any preparations to use the Domain Names in connection with a bona fide offering of goods or services. The Respondent was all too well aware of the Complainant and of its rights in respect of the trademark WEALTH DRAGONS at the time it registered the Domain Names and the Complainant contends that the Respondent only registered the Domain Names to use them as leverage against the Complainant in connection with his complaint about the Forex Programme.
The Complainant exhibits a note of a telephone conversation between the Respondent (and later his wife) and a legal representative of the Complainant in November 2016 that followed up a letter from the Complainant's lawyers setting out the Complainant's complaints in respect of the Domain Names and demanding their transfer to the Complainant. The Respondent's wife is said to have stated that they "could have sunk Wealth Dragons easily in Facebook" and "we could have cost them a million pounds" and "we could have started the website and be at the top of Google – we could have sunk them". The Complainant is in no doubt that the Respondent registered the Domain Names to use as leverage in relation to his complaint about the Forex programme. The Complainant accordingly contends that the Respondent registered and is using or threatening to use the Domain Names in bad faith.
The Response explicitly makes no comment or submissions in relation to the first two elements of paragraph 4(a) of the Policy. It does not dispute whether the Domain Names are identical or confusingly similar to a trademark in which the Complainant has rights; it does not dispute that the Respondent has no rights or legitimate interests in respect of the Domain Names.
So far as bad faith is concerned the Respondent states that "I can see that it could be viewed as bad faith to buy the domain names in question" but that in the circumstances he expected "an easy friendly discussion of a complaint". He complains that the Complainant has insisted that the dialogue between them be "off the record". The Response concludes:
"I have openly stated from the beginning that I bought the domain names to provoke a response, if that constitutes bad faith then so be it, it was not done with the intention to use the domain names as has been alleged. In fact it would be easier and quicker to use social media."
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names the Complainant must prove that:
(i) the Domain Names are 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 Domain Names; and
(iii) the Domain Names have been registered and are being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has undisputed rights in respect of the trademark WEALTH DRAGONS UNLEASHED by virtue of its United Kingdom trademark registration. The Panel is also satisfied, and the Respondent has not disputed, that the Complainant has unregistered trademark rights in respect of WEALTH DRAGONS as a result of its substantive use of and marketing of its services under that mark for some six years. Ignoring the ccTLD ".co" and the gTLD ".org", the Domain Names are identical to the DRAGON WEALTH mark. Additionally, the Panel considers that "Wealth Dragons" is a distinctive element of "Wealth Dragons Unleashed". Accordingly, the Panel finds that the Domain Names are identical or confusingly similar to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in respect of the Domain Names. The Respondent has explicitly made no submissions as to such rights or legitimate interests and made no effort to counter the case put forward by the Complainant. There is no question of the Respondent having made any preparations to use the Domain Names in connection with a bona fide offering of goods or services and the Respondent specifically denies that he intended to use them for a gripe site making legitimate criticisms of the Complainant. Since the Domain Names solely comprise the trademark of the Complainant, the Panel is most unlikely to have found that such an intention would have given rise to rights or legitimate interests in respect of the Domain Names in any event. As a general rule, the right to legitimate criticism does not necessarily extend to registering or using identical domain names. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), paragraph 2.6.
In the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names.
C. Registered and Used in Bad Faith
Although the Respondent has made no active use of the Domain Names, paragraph 3.3 of the WIPO Overview 3.0 notes that, from the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or "coming soon" page) does not prevent a finding of bad faith under the doctrine of passive holding. It depends on the facts of the case, and the failure of the Respondent to provide any evidence of actual or contemplated good-faith use is a relevant factor.
The Response concedes that it could be viewed as bad faith for the Respondent to have bought the Domain Names. There is no doubt that the Respondent had the Complainant and its rights in the mark WEALTH DRAGONS in mind when it registered the Domain Names. The Respondent asserts that he only registered the Domain Names as a result of his complaint about the Forex Programme organised by the Complainant and "to provoke a response". Although the Respondent has protested that he did not intend to use the Domain Names for a website to attack the reputation of the Complainant, the Complainant understandably fears that he might do so, particularly in view of the comments made in the telephone conversation with the Complainant's legal representative as to how the Respondent and his wife might have "sunk" the Complainant or cost it "a million pounds".
The Panel accepts that there is a real risk that the Respondent might well use the Domain Names to take unfair advantage of, abuse, or otherwise engage in behaviour detrimental to the Complainant's trademark.
Accordingly, the Panel has no hesitation in finding that the Respondent registered and is using the Domain Names in bad faith within the meaning of paragraph 4 of 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 Domain Names, <wealthdragons.co> and <wealthdragons.org>, be transferred to the Complainant.
Date: June 2, 2017