WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Rubis Energie v. Privacy Administrator, Anonymize, Inc.
Case No. DCO2019-0033
1. The Parties
1.1 The Complainant is Rubis Energie, France, represented by IP Twins S.A.S., France.
1.2 The Respondent is Privacy Administrator, Anonymize, Inc., United States of America.
2. The Domain Name and Registrar
2.1 The disputed domain name <vitogaz.co> (the “Domain Name”) is registered with Epik, Inc. (the “Registrar”).
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 30, 2019. At that time, the publically available WhoIs details for the Domain Name identified the registrant of the Domain Name to be “Anonymize, Inc”. “Anonymize, Inc” is the privacy service of the Registrar.
3.2 On August 30, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. The Registrar did not immediately respond to that request, but on September 8, 2019 the Registrar appeared to send an email to the Complainant’s lawyers, that stated as follows:
“Hello, Shall we settle this one for $500 today?
3.3 That offer was rejected by the Complainant’s lawyers and a further email appears to have been sent from the Registrar to the Complainant’s lawyers on September 9, 2019. That email stated as follows:
“Hello [Name of the Complainant’s lawyer], The ICANN fee of $1500 is refunded before the panel is appointed. So either: 1. He is stupid. OR 2. You like to generate legal fees. For $500, the domain is delivered today. Is there some other price needed? Regards, Rob”
3.4 By September 11, 2019, the Registrar had still not responded to the Center’s verification request and that day the Center sent an email to the Registrar (including to “Rob” at the Registrar) asking for the relevant information once again. In that email, the Center stated:
“Please note that it may become necessary to inform ICANN Compliance should we fail to receive a timely response from you in this regard.”
3.5 Still no response had been received from the Registrar by September 23, 2019. As a consequence, the Center sent a further email to the Registrar stating that unless the information requested was provided by September 25, 2019, the proceedings might need to proceed without the relevant information.
3.6 This email from the Center elicited an email response the same day from Robert Monster, who described himself as the “Founder and CEO” of the Registrar. In that email, he stated:
“The registrant abandoned the domain. It is no-contest. Can we have a fast-track solution? Nobody besides lawyers on the meter have time for this nonsense.”
3.7 On September 24, 2019, a further email was received by the Provider from someone identifying themselves as the “Director, Client Services” of the Registrar. In that email, that person stated as follows:
“Per your request, the [Domain Name] currently has a Registrar Lock enabled on it.
Here is the WhoIs information for Registrant, Admin, Tech, and Billing:
Organization Name: Anonymize, Inc.
Name: Privacy Administrator Email: email@example.com
Address: 704 228th Ave NE,
Zip Code: 98074 Country:
United States Phone: +1.4253668810”
3.8 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 October 4, 2019. In accordance with the Rules, paragraph 5, the due date for Response was October 24, 2019. The Center notified the Parties that it would proceed to panel appointment on October 30, 2019.
3.9 The Center appointed Matthew S. Harris as the sole panelist in this matter on November 5, 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.
3.10 On November 7, 2019 and having read the case file, the Panel issued a Procedural Order (Procedural Order No.1). In Procedural Order No.1, the Panel explained that certain conduct of the Registrar might be criticised in the published decision in this case and that the Panel might call for the Center to bring that conduct to the attention of the relevant authorities. Accordingly, Procedural Order No. 1 invited the Registrar to file a further submission in this respect by no later than November 13, 2019. It also requested that the Registrar disclose the details of the underlying registrant in this case.
3.11 In response to Procedural Order No. 1 the “Director of Business Development” at the Registrar filed a submission with the Center on November 11, 2019. In that submission the Registrar:
(i) Confirmed that Anonymize Inc. was the privacy service of the Registrar.
(ii) Confirmed that “Rob” who had sent the emails from the Registrar of August 30, 2019, and September 9, 2019 identified above, was Robert Monster, the “founder” of the Registrar.
(iii) Explained that the delay in providing a response to the Center’s initial verification request was due to the Registrar “receiv[ing] thousands of emails every day and the complaint was sent during the vacation period of some of our Staff, which created a delay in ticket responses”. It apologised for its non-compliance in this respect.
(iv) Did not disclose, as had been expressly requested in Procedural Order No.1, the details of the underlying registrant of the Domain Name, contending that the registrant “have the right not to show their contact information”.
(v) Repeated the contention, and appeared to consider it significant on the question of non-disclosure, that the underlying registrant was not contesting the transfer of the Domain Name.
(vi) Appeared to defend the registration of the Domain Name by contending that:
“the [Domain Name] has multiple options.
1. There is an energy company.
2. There is a musician: https://open.spotify.com/artist/4DNiGWScVzTFZVRj0rdja1
3. There are people named Vito Gaz: https://www.facebook.com/public/Vito-Gaz
4. There are also Mercedes Vito cars powered by Gaz which comes extensively when searching ‘Vito Gaz’.”
4. Factual Background
4.1 The Complainant, Rubis Energie, is part of the Rubis group of companies. Rubis is a France based international company specialising in the storage, distribution and sale of petroleum, liquefied petroleum gas (LPG), food and chemical products. In addition to France, it undertakes activities in Bermuda, French Guiana, Jamaica, Madagascar, Morocco, Senegal, and Switzerland.
4.2 In 2018, the group generated revenues of more than EUR 4.7 billion and employed more than 3,500 people worldwide.
4.3 The Complainant is the owner of various registered trade marks around the world that incorporate or comprise the term “Vitogaz”, the earliest of which dates back to February 1995. These marks include:
(i) European Union registered trade mark no 002428431 for VITOGAZ as a word mark in class 4, filed on October 26, 2001 and proceeding to registration on December 4, 2002; and
(ii) International trade mark registration no 0899203 for VITOGAZ as a word mark in classes 35, 38 and 39, with a registration date of June 23, 2006 and based on a French registered trade mark of the same date. The registration has proceeded to grant in the European Union and Monaco.
4.4 The Complainant is also the owner of various domain names including <vitogaz.com>. The <vitogaz.com> domain name has for some time been used to promote the activities of the Complainant’s group of companies under the VITOGAZ mark.
4.5 The Domain Name was registered on July 23, 2019.
4.6 Subsequent to registration, and prior to a complaint being filed in these proceedings, a webpage was displayed from the Domain Name, indicating that the Domain Name was for sale at a price of USD 2,995. The Domain Name was also offered as available for sale through the Registrar’s own website at that same price.
5. Parties’ Contentions
5.1 The Complainant sets out its business and VITOGAZ registered trade marks. It contends that the Domain Name fully incorporates its trade marks and that, therefore, the Domain Name is identical or highly similar to those marks.
5.2 The Complainant contends that the Domain Name was not registered with its consent and that none of the examples of circumstances demonstrating right or interests set out in the Policy apply in this case. It also contends that the offer for sale of the Domain Name does not involve a bona fide offering of goods or services. It, therefore, contends that the Respondent has no rights or legitimate interest in the Domain Name.
5.3 The Complainant contends that the registrant of the Domain Name must have been aware of the association of the term “Vitogaz” with the Complainant when the Domain Name was registered. In this respect it claims that this would have been apparent from a simple Google search, that the Complainant does business in countries in South America “close to” Colombia (i.e., the country to which the country code Top-Level domain (“ccTLD”) “.co” applies) and relies upon the similarity of the Domain Name to the “official domain name” <vitogaz.com> used by the Complainant’s group of companies.
5.4 The Complainant also contends that there is “no possible way whatsoever that the Respondent [could] use the [D]omain [N]ame in connection with a bona fide offer of products or services” and that “any use of the VITOGAZ trade[ ]mark would amount to trade[ ]mark infringement and damage to the repute of the trade[ ]mark”. In this respect, it contends that “Vitogaz” is an arbitrary term with no common or general meaning in any language.
5.5 The Complainant further contends that the similarity between the Domain Name and the <vitogaz.com> domain name used for the Complainant’s own website is such that Internet users are likely to be misdirected by mistyping that domain name. The Complainant also relies upon the offers for sale of the Domain Name as evidencing bad faith.
5.6 Lastly, the Complainant contends that the Respondent has used a privacy service in this case in an effort to conceal its identity and possibly escape these proceedings.
5.7 All these factors are said to indicate that the Domain Name was registered and is being used in bad faith.
5.8 No formal response was filed by the Respondent in these proceedings.
6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.
6.2 Notwithstanding the default of the Respondent, it remains incumbent on the Complainant to make out its case in all respects under the Rules set out in paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and
(iii) the Domain Name has been registered and is being used in bad faith (paragraph 4(a)(iii)).
6.3 However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate”.
6.4 The Panel will address each of the requirements of the Policy in turn. But before it does so, it will make a number of observations about the Registrar’s conduct.
A. Registrar’s Conduct
6.5 There are a number of aspects of the Registrar’s conduct in this case that are concerning.
6.6 First, as has already been recorded in the Procedural History section of this decision, the Registrar took close to a month formally to respond to the Center’s initial verification request. The Registrar’s Director of Business Development has apologised for that delay and seeks to excuse it by claiming that relevant persons were on holiday.
6.7 Although the Panel notes the Registrar’s apology, it does not believe that the explanation provided is adequate. There is a clear requirement in paragraph 4(b) of the Rules that a registrar respond to a verification request within 2 business days. It is imperative that registrars comply with that timetable, otherwise the progress of UDRP proceedings is likely to be delayed or frustrated. It is, therefore, incumbent on registrars (regardless of the holiday arrangements of its staff) to put in place systems to ensure that this obligation is complied with.
6.8 Further, the Registrar’s explanation is also called into question by the fact that the Registrar’s own CEO, responded to the notification of the Complaint within a few days with an offer to sell the Domain Name. This is not a case where the material before the Panel suggests that an email from the Center was inadvertently overlooked. It is instead a case where the highest level of management of the Registrar was well aware that a UDRP complaint had been issued, had been a party to emails of complaint from the Center in relation to non-compliance with paragraph 4(b) of the Rules and yet the Registrar still failed to comply with its obligations under the Rules. Further, the content of these emails (which are addressed in greater detail later on in this decision) suggest that the Registrar has adopted a deliberate policy in delaying the operation of the UDRP in the hope that in the meantime a deal might be reached with the Complainant whereby the Domain Name was purchased.
6.9 Second, there is the failure by the Registrar to disclose the details of the underlying registrant of the Domain Name.
6.10 Why it is important for registrars that offer a “privacy service” to disclose the underlying details of any registrant in response to a Provider’s request, was addressed in some detail in Four Seasons Hotels Limited v. Internet bs Corporation/ Private Whois Service, WIPO Case No. D2009-1657 and LEGO Juris A/S v. Whois Privacy Protection Service, Inc. / Domains Secured, LLC, WIPO Case No. D2011-1857. In Four Seasons Hotels Limited v. Internet bs Corporation/ Private Whois Service, supra, this Panel made comments about registrars that refused to do so as follows:
“From a practical perspective it is important that those who offer WhoIs privacy services operate in this way [i.e., disclose the underlying registrant to the Center in response to a verification request]. A refusal by a registrar to disclose to a requesting Policy provider the underlying owner or holder of a domain name (and their contact details) hidden behind a “privacy service” in proceedings under the Policy, involves a potential threat to the operational integrity of the Policy. Registrars who operate in this fashion potentially provide a tool that enable cybersquatters to conduct their activities in secrecy and to help them avoid the extent of their abusive activities becoming public; thereby depriving complainants, potential complainants and panels with information that is potentially highly relevant to the assessment of abusive behaviour. For a registrar to participate in facilitating or aiding these activities risks undermining the operation of the Policy. For the reasons already given, the Panel considers this to be contrary to the provisions of the Policy. It is undoubtedly contrary to its spirit.”
6.11 The reasoning in the Lego and Four Seasons Hotels Limited cases supra relied upon (a) the wording of the Registrar Accreditation Agreement then in place, (b) the fact that paragraph 2(a)(i)(b) of the Rules assumes that a Registrar would have disclosed to a UDRP provider the billing information in its possession, and (c) that a practice had grown up by that time on the part of reputable registrars of disclosing this information as a matter of course in response to a verification request.
6.12 Since then, matters have moved on somewhat. They include the following developments:
(i) In or about 2013 the applicable registrar accreditation agreement between ICANN and registrars was amended and made express provision for privacy or proxy services. This includes a requirement (in the Specification On Privacy And Proxy Registrations forming part of that agreement) that where a Registrar operates such a service it should disclose:
“The circumstances under which the P/P Provider will reveal and/or publish in the Registration Data Service (Whois) or equivalent service the P/P Customer's identity and/or contact data”;
(ii) The Rules were changed in respect of complaints submitted after July 31, 2015 so as to provide (at paragraph 4(b)) an express mechanism for the provision of information by a registrar. As has already been addressed above, this information should be provided within 2 working days. However, the new paragraph 4(b) also states that:
“Any updates to the Respondent's data, such as through the result of a request by a privacy or proxy provider to reveal the underlying customer data, must be made before the two (2) business day period concludes or before the Registrar verifies the information requested and confirms the Lock to the UDRP Provider, whichever occurs first. Any modification(s) of the Respondent's data following the two (2) business day period may be addressed by the Panel in its decision.”
(iii) On May 17, 2018 ICANN adopted a Temporary Specification for gTLD Registration Data ("Temporary Specification") in response to concerns about compliance with European data protection law. That specification provides for redaction of certain data but also mandates disclosure by the Registrar of “full Registration Data” (which is defined widely as "data collected from a natural and legal person in connection with a domain name registration”) to a UDRP provider when it has notified of a UDRP complaint (see Annex H). The page of ICANN’s website that holds a copy of the registrar accreditation agreement records that this agreement has been “superseded in whole or in part by the Temporary Specification”.
6.13 In the circumstances, and notwithstanding that the wording of the new paragraph 4(b) of the Rules appears to assume that third party operator of proxy or privacy services might “request” that a Registrar “reveal” the underlying data, the conclusions in the Four Seasons case supra appear to the Panel to remain essentially sound, at least so far as domain names based on generic Top-Level Domains (“gTLD”s) are concerned. In this respect, paragraph 2(a)(i)(b) of the Rules continues to assume that a Registrar will provide a UDRP provider with billing information, and the Temporary Specification, which takes precedence over anything to the contrary on the Registration Agreement, makes it quite clear that registrars are mandated to disclose a wide range of registration data in response to a verification request.
6.14 Things are complicated somewhat in this case by the fact that the Domain Name is technically not one that relates to a gTLD, but instead to the Colombian “.co” ccTLD. Consequently, the terms of the Temporary Specification do not obviously apply and presumably there is some separate registration agreement in place between those responsible for the “.co” registry and registrars operating in that registry. Nevertheless, paragraph 2(a)(i)(b) of the Rules is still applicable and there is no evidence before the Panel that the practices in that registry so far as disclosure of registration data are concerned are materially different from those that apply to gTLD domains. Given this, the Panel proceeds on the assumption that non-disclosure in response to a verification request in UDRP proceedings in relation to a “.co” domain name is, if not contrary to the UDRP itself, contrary to the spirit.
6.15 The Panel also notes that the “Clarification on Privacy Services and WHOIS Contact Information” Policy published on the .CO Registrar Policies web site operated by the administrator of the “.co” ccTLD registry (the “Clarification”) appears expressly to require that a registrar should disclose information behind a privacy service to “any authority performing a legal mandate”. At first sight it appears that the Center (and/or any Panel appointed under the UDRP) is such an “authority”, and therefore that the Registrar has failed to comply with its contractual obligations to the registry in not doing so.
6.16 The Registrar has sought to argue that the registrant has a right “not to show their contact information”. However, that is mere unsubstantiated assertion. No attempt has been made to explain the legal basis of that alleged right and it is difficult to see on what basis such a right could be legitimately claimed in this case. It is also an assertion that also appears to be at odds with clause 3.5 of Anonymize Inc.’s own terms and conditions that broadly allow this information to be disclosed in the absence of any legal provision to the contrary. Given this, it appears to the Panel that there is no right of non-disclosure as the Registrar alleges, but that the Registrar has made a deliberate decision not to provide the information requested, notwithstanding the detrimental impact of that decision on the operation of the UDRP.
6.17 Third, there are the emails sent by the CEO of the Registrar following the filing of the Complaint. The Panel is not aware of any other case where in response to the filing of the Complaint, a registrar, let alone the CEO of a registrar, has attempted to engage in negotiations with a complainant regarding the sale of the domain name in issue in proceedings. A registrar has its own obligations under the UDRP, the Rules and the Clarification that are quite distinct from the rights and obligations of the parties to UDRP proceedings. For example, in addition to the obligation to respond to a verification request already discussed, a registrar has an obligation under paragraph 4(b) of the Rules to place a domain name on lock before even notifying a respondent of UDRP proceedings. It also has an obligation to implement any decision under the UDRP in accordance with, and subject to, the provisions paragraph 4(k) of the Policy. However, it is wholly inappropriate for a registrar to descend into the arena of proceedings for the purpose of furthering the interests, or advancing the case, of one or other party. It is a principle that is expressly recorded in paragraph 4(h) of the Policy, which provides:
“h. Our Involvement in Administrative Proceedings. We [i.e. the Registrar] do not, and will not, participate in the administration or conduct of any proceeding before an Administrative Panel.”
6.18 The Registrar’s conduct in this case involved a breach of that principle. Further, the Registrar in its submission has further compounded that breach by seeking to justify the registration in this case by offering a number of examples of how it is said that the Domain Name might be used legitimately.
6.19 Further, the Registrar cannot reasonably claim that it was misguidedly but in good faith seeking to act as an honest broker to settle the dispute between the parties. Mr. Monster decided to send emails that sought fit to insult the Complainant’s lawyers by suggesting that if the Complainant was not prepared to settling these proceedings on the terms offered, the Complainant’s lawyer was either “stupid” or was progressing the proceedings for his own person gain.
6.20 Further, Mr. Monster’s attitude to the Complaint is further illustrated by the content of his email of September 25, 2019, in which he characterises these UDRP proceedings as “nonsense” for which no one “besides lawyers on the meter have time”.
6.21 Mr. Monster’s attacks on the Complainant and/or its legal advisers were ill judged and are without merit. A complainant cannot be forced to settle proceedings and is perfectly entitled to push forward with proceedings and seek their public resolution through a decision under the UDRP.
6.22 It is undoubtedly the case that the present design of the UDRP, and in particular the fact that there is no direct adverse cost consequence to a respondent who loses proceedings, has opened up the UDRP to gaming by unscrupulous registrants. Some registrants have adopted a business model of repeated bad faith registrations of domain names and then offering them for sale at a price that is less than the irrecoverable costs of those proceedings. An example of one of the more blatant adopters of this business model, and who even went so far as to admit that his conduct amounted to extortion, is to be found in the decision in Little Acorns Fostering Ltd. v. W P, The Cloud Corp / Al Perkins, WIPO Case No. D2017-1776.
6.23 It is also the case that many victims of this conduct will decide on a purely commercial and pragmatic basis to pay the sums sought. However, others will refuse and insist that the case proceeds to a decision. It is not “stupid”, for a complainant or its advisers to adopt such a stance. It may make very good business sense for a company to make it publically clear that it will not pay out monies in response to such registrations. Further, in insisting that such cases go to a full decision, a complaint may well be doing a service to others in exposing the wrongful conduct of certain registrants. Given this, complainants who insist on a decision rather than doing a quick deal with the registrant are arguably to be commended rather than criticised.
6.24 In summary, therefore, the conduct of the Registrar in this case has involved multiple breaches of the Policy and the Rules and also possible breaches of other contractual obligations it owes to the relevant registry. When looked in the round, that conduct also appears to have been deliberately designed to frustrate or delay the operation of the UDRP to the potential improper benefit of the registrant of the Domain Name. It is conduct that also calls into serious question whether there really is an independent registrant in this case, as opposed to one that has some association with the Registrar or the Registrar’s CEO. However, regardless whether there is an independent registrant or not, it is conduct that has fallen seriously below the standards that the Policy and Rules require of the Registrar and which participants in the UDRP are entitled to expect.
6.25 The Lego and Four Seasons Hotels Limited cases, supra involved gTLDs. In those cases the Panel observed that where a registrar breached the provisions of the Policy or Rules or its conduct otherwise threatened to undermine the proper operation of the UDRP, it might be appropriate to invite the Center to bring that failure to the attention of ICANN, with a view to ICANN undertaking such investigation into, and enforcement steps against, the registrar as it considers appropriate.
6.26 For the reasons set out above, the Panel has concluded that the Registrar’s conduct in this case should be referred to the appropriate body for investigation and possible enforcement. As a .co domain name is involved, it is not clear to the Panel whether that appropriate body is ICANN or .CO Internet S.A.S. (the operator of the registry), or some other entity. The Panel, therefore, invites the Center to bring this decision to the attention of the body or bodies that it considers most appropriate.
6.27 With the issue of Registrar conduct addressed, the Panel can move on to the requirements of the Policy. These can be dealt with far more swiftly.
B. Identical or Confusingly Similar
6.28 The Panel accepts that the Complainant is the owner of various registered trade marks including the registered word marks set out in the Factual Background section of this decision. The Panel also accepts that one of the most sensible readings of the Domain Name is as this mark combined with the .co ccTLD.
6.29 In any event, the Complainant’s trade mark is clearly recognisable in the Domain Name. This is sufficient for a finding that the Domain Name and the Complainant’s trade mark are “confusingly similar” as that term is understood under the Policy; as to which see section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”). In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy.
C. Rights or Legitimate Interests
6.30 For reasons that the Panel explains in greater detail in the context of the discussion of bad faith below, the Panel has reached the conclusion that the Domain Name was both registered and held in bad faith. It rejects any suggestion that the Domain Name was registered with a view to taking advantage of any association of the text in the Domain Name with any person or thing other than the Complainant. Given this conclusion, and in the absence of any evidence or admissible argument to the contrary, the Panel finds that the Respondent has no right or legitimate interest in the Domain Name.
6.31 Further, according to the Registrar, the Respondent has expressly disclaimed any interest in the Domain Name. Such a disclaimer in and of itself supports a finding of lack of rights or legitimate interest.
6.32 It follows that the Complainant has made out the requirements of paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad Faith
6.33 The Panel accepts that the most likely explanation is that the Domain Name was registered and then held with a view to taking advantage of the Complainant’s trade mark rights and this was most likely with a view to its sale to the Complainant or the Complainant’s competitors for more than the Respondent’s out of pocket expenses.
6.34 In this respect, the Panel accepts that the Complainant had extensively used the term “Vitogaz” as a trade mark for some time prior to the Domain Name’s registration. The Panel also accepts that whether as a result of a Google search or otherwise, the Respondent is likely to have been aware of the Complainant’s use of <vitogaz.com> in respect of its website prior to registration of the Domain Name. Although the “.co” TLD historically relates to Colombia, it is well known that for some time it is a domain name space that has been marketed as if it were a gTLD and as an alternative to, and shorter version of, the usually more sought after “.com” TLD. It follows that it is inherently improbable (absent any explanation to the contrary) that someone registering such a domain name would not have investigated the availability of the corresponding “.com” first.
6.35 Next, there is the fact that since registration the Domain Name has been offered for sale, both from a webpage operating from the Domain Name and through the Registrar’s own website. If that were not enough, there is the fact that after Complaint had been filed, the CEO of the Registrar offered it for sale yet again (albeit at a somewhat lower price).
6.36 Given this, the Panel accepts that this is a case where the circumstances indicating bad faith registration and use set out at paragraph 4(b)(i) of the Policy apply.
6.37 The Panel notes the Registrar’s comments that the Domain Name might possibly be used for some other purpose, but there are a number of fundamental problems with that contention. First, these claims do not come from any person who is prepared to admit to be the underlying registrant, nor are they supported by the statement of truth that would usually accompany a formal Response. As such they should be afforded very little weight. Second, the contentions themselves appear somewhat contrived after the event justifications, and the links supplied if clicked on appear to display content that at least in part relate to the Complainant. Third, and by no means least, the fact that a domain name might be conceivably used for some legitimate purpose misses the point. The pertinent question is the reason why the registrant actually registered and held the Domain Name. The Registrar’s submission does not even attempt to address that fundamental question.
6.38 Further, the Panel also accepts that the use of a Domain Name privacy service in this case supports a finding of bad faith. The attitude to privacy services by panels have evolved over time and the current consensus view to the effect that they may, but do not necessarily, indicate bad faith is recorded in section 3.6 of the WIPO Overview 3.0. It may be that it evolves further in future for the reasons set out in Nishimura & Asahi v. Super Privacy Service LTD c/o Dynadot, WIPO Case No. D2019-2070. On this occasion, the use of the service, the emails from the Registrar, and the refusal of the Registrar to disclose the underlying registrant details in response to both a verification request and the Panel’s request, are such that the only sensible conclusion is that the underlying registrant is attempting to use such a service to block or intentionally delay disclosure of its identity in the course of UDRP proceedings. As section 3.6 of the WIPO Overview 3.0 records, this is an independent indication of bad faith.
6.39 Finally, there is the Registrar’s claims that the Domain Name has been abandoned and that this is a case of “no contest”. What the Panel understand this to mean is that the Respondent does not contest the allegations set out in the Complainant, including the allegations of bad faith registration and use.
6.40 It follows that the Panel finds that the Domain Name was registered and held in bad faith and that the Complainant has, therefore, made out the requirements of paragraph 4(a)(iii) of the Policy.
7.1 For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <vitogaz.co> be transferred to the Complainant.
Matthew S. Harris
Date: November 13, 2019