WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
31Broadbeach v. Jack Howard, The Trustee for Sirocco No. 2 Trust
Case No. DAU2019-0002
1. The Parties
The Complainant is 31Broadbeach, of Collingwood, Victoria, Australia, represented by Andrew Stinson, Australia.
The Respondent is Jack Howard, The Trustee for Sirocco No. 2 Trust, of Gold Coast, Queensland, Australia.
2. The Domain Name and Registrar
The disputed domain name <31broadbeach.com.au> is registered with Web Address Registration Pty Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 23, 2019. On January 23, 2019, the Center transmitted by email to Web Address Registration Pty Ltd a request for registrar verification in connection with the disputed domain name. On January 25, 2019, Web Address Registration Pty Ltd 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 .au Dispute Resolution Policy (the “Policy” or “.auDRP”), the Rules for .au Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 28, 2019. In accordance with the Rules, paragraph 5(a), the due date for Response was February 17, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 18, 2019.
The Center appointed Andrew F. Christie as the sole panelist in this matter on February 25, 2019. 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 business name that was registered with the Australian Securities and Investments Commission (“ASIC”) on October 27, 2017. The holder of the registered business name is BB31 Pty Ltd. BB31 Pty Ltd is a property developer that is completing a property development project at the address 31 Broadbeach Boulevard, Main Beach, Queensland, 4218, Australia. The property development commenced on or about September 27, 2017.
According to the registrar verification, the creation date (i.e., the date of first registration) of the disputed domain name is September 6, 2017. The disputed domain name resolves to a generic “parking page” hosted by Crazy Domains.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical to a name, trademark or service mark in which the Complainant has rights because: (i) it is identical to the Complainant’s business name and property development, “31 Broadbeach”; and (ii) the Respondent has no trademark or business name that corresponds to the disputed domain name.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name because: (i) the Respondent has failed to make any bona fide use of, or demonstrable preparations to use, the disputed domain name; (ii) the disputed domain name is being parked with the service provider Crazy Domains; (iii) no trademark has been acquired by the Respondent that would support a claim of legitimate use; (iv) the Complainant’s understanding is that the Respondent works for his father, who is the owner of a Gold Coast property developer that is currently developing a real estate project at 19 Broadbeach Boulevard, Main Beach, Queensland, in competition with the Complainant; (v) the Respondent was aware of the Complainant’s property development and registered the disputed domain name, which is identical to the Complainant’s business name, in order to sell it for a premium price; and (vi) the Respondent is cybersquatting.
The Complainant contends that the disputed domain name was registered or is being used in bad faith because: (i) the Respondent registered the disputed domain name for the purposes of selling it to the Complainant for valuable consideration in excess of the Respondent’s out-of-pocket costs, to prevent the Complainant from registering it, and to disrupt the business activities of the Complainant; (iii) the Respondent knowingly acted to prevent the Complainant from registering the disputed domain name, and was aware that the disputed domain name corresponds with the Complainant’s business name and property development; and (iv) in negotiations with the Complainant, the Respondent made three offers to sell the disputed domain name for AUD 50,000, despite numerous rejections by the Complainant, who counter-offered with a price of AUD 2,000, being the cost of bringing proceedings to recover the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Procedural Issue – Identity of the Complainant
The Complaint was filed in the name of a business name registered with ASIC. A business name, whether registered or unregistered, is not a legal person; rather, it is a name under which a trader has chosen to trade. Where a name under which a trader has chosen to trade is not the same as the trader’s legal name (such as its personal name or company name), the trader is required by Australian law to register that name, as a business name, with ASIC. The reason for requiring registration of a business name is so that third parties can identify who is the legal person who is trading under the name.
A legal person is an entity recognised as having a legal existence. Legal existence is the characteristic of being able to be held legally responsible for actions. Thus, a legal person (and only a legal person) can enter agreements, assume obligations, incur debts, sue and be sued at law, and the like.
Paragraph 3(a) of the Rules states: “Any person or entity may initiate an administrative proceeding by submitting a complaint in accordance with the auDRP and these Rules ...”. The Panel understands that this reference to “any person or entity” is to a legal person, whether that be a natural person (a human) or some other legal entity (such as a company or government agency). There are two, related, reasons for this. First, bringing an action under the Policy is akin to suing at law. Secondly, one of the remedies available to a successful complainant is transfer to it of the disputed domain name. In the event that this remedy is ordered by the panel, the successful complainant must become a party to the domain name licence agreement applicable to the domain name. In both situations, the complainant must have legal existence. For these reasons, the Panel is of the view that a complainant under the Policy must be an entity that is recognised by Australian law as being a legal person.
The Complainant of record in this case, 31 Broadbeach, is a business name, not a legal person. However, the holder of that business name, BB31 Pty Ltd, is a legal person – it is an Australian proprietary company, limited by shares. For the purpose of administrative efficiency, and in the absence of any objection from the Respondent (who did not file a Response), the Panel is willing to treat the Complaint as if it was filed in the name of BB31 Pty Ltd, rather than 31 Broadbeach. Accordingly, all references hereafter to “the Complainant” are to be read as references to BB31 Pty Ltd.
B. Identical or Confusingly Similar
The Complainant is the holder of the business name “31 Broadbeach”, registered with ASIC. Footnote 1 of the Policy states that, among other things, a business name registered with the relevant Australian government authority is a name in which the complainant has rights for the purpose of the Policy. ASIC is the relevant Australian government authority for registration of business names. Thus, for the purposes of the Policy, the Complainant has rights in its registered business name “31 Broadbeach”.
When the country code Top-Level Domain identifier “.au” and the second-level domain identifier “.com” are ignored (which is appropriate in this case), the disputed domain name consists solely of the Complainant’s registered business name “31 Broadbeach”. Accordingly, the Panel finds that the disputed domain name is identical to a name in which the Complainant has rights.
C. Rights or Legitimate Interests
The Complainant has provided evidence of a series of email communications in early December 2018, between its representative and the Respondent in relation to the disputed domain name. In response to the Complainant’s request that the Respondent “release” the disputed domain name so as to avoid an action under the Policy, the Respondent asserted that the Complainant had “copied a development name without consulting us trying to swindle sales from a brand we had established”, that there were “no grounds for a complaint based on the timing of acquiring the domain”, and that if the Complainant wished it could “purchase the domain … the domain is for sale”. When asked by the Complainant’s representative what was the price of the disputed domain name, the Respondent replied “$50,000”. The Complainant’s representative responded that there “seems to be some bad blood here but I don’t think $50,000 is a reasonable offer”, and then asked the Respondent to “reconsider”. The Respondent replied: “On projects valued over $50m its (sic) assumed there would be more consideration and etiquette than copying names as your clients have proceeded to do. Please let us know what you think to be reasonable and we can consider the offer”. The Complainant’s representative responded: “It will cost my client AU$2,000 in fees to convene a panel and process a domain name dispute. To have this resolved quickly I am sure they would let me pay you that amount instead. Would you consider releasing the domain for AU$2,000? Sales of .com.au domain names rarely reach 5 figure prices. A few example sales I can show you to explain why I feel AU$2,000 is reasonable amount …” The Respondent replied: “I think the best case in securing the name is to purchase at a price which will stop our current business plans, before we move further down the road for a fee worth doing so. AU2000 is not acceptable. Please review your price”. In the final communication in the chain, the Complainant’s representative said “all I can really say is that I can get you the $2,000 the review will cost, but I can’t get you much of anything beyond that”.
When read in the manner which puts the best possible interpretation for the Respondent on these communications, it appears that the Respondent was of the view that the Complainant had “copied” a “brand” (presumably, “31 Broadbeach”) that the Respondent had “established”. The fact that the Respondent registered the disputed domain name prior to the Complainant’s commencement of its development at 31 Broadbeach Boulevard is consistent with this view, but does not prove it. The problem for the Respondent is that there is no evidence in the case record currently before the Panel that supports its assertion. Notably, the Respondent has chosen not to file a Response to the Complaint. As explained in paragraph 4.6 of the auDA Overview of Panel Views on Selected auDRP Questions First Edition (“auDA auDRP Overview 1.0”), “panels may draw appropriate inferences from a respondent’s default, including … that any evidence the respondent might have given would not have been in its favour”. In the absence of any response from the Respondent, it is not possible for the Panel to find that the Complainant’s business name was a copy of a brand established by the Respondent. There is, therefore, no basis for a finding that the disputed domain name is, or contains, a brand name of the Respondent.
The Respondent is not a licensee of, or otherwise affiliated with, the Complainant, and has not been authorised by the Complainant to use its “31 Broadbeach” registered business name. The Respondent has not provided any evidence that it has been commonly known by, or has made a bona fide use of, the disputed domain name. The evidence provided by the Complainant shows that the disputed domain name resolves to a generic “parking page” hosted by Crazy Domains. According to the present record, therefore, the disputed domain name is not being used in connection with a bona fide offering of goods or services, or for a legitimate non-commercial or fair use.
For the above reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
D. Registered or Subsequently Used in Bad Faith
The communications between the Complainant’s representative and the Respondent make it clear that the Respondent was willing to transfer the disputed domain name to the Complainant, the owner of the name identical to the disputed domain name for purposes of the Policy, only for a sum that was in excess of AUD 2,000 and in the vicinity of AUD 50,000 – a sum undoubtedly in excess of out-of-pocket costs directly related to the domain name. This is, in the Panel’s view, evidence of the Respondent using the disputed domain name in bad faith. Accordingly, the Panel finds that the disputed domain name has been used in bad faith.
For all 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 <31broadbeach.com.au> be transferred to the Complainant.
Andrew F. Christie
Date: March 12, 2019