WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
G. D. Vashisht and Associates Pvt. Ltd. v. AstroCAMP
Case No. D2011-2070
1. The Parties
The Complainant is G. D. Vashisht and Associates Pvt. Ltd. of Delhi, India, represented by Amarjit & Associates, Advocates, India.
The Respondent is AstroCAMP of Agra, India.
2. The Domain Name And Registrar
The disputed domain name <lalkitabamrut.com> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 24, 2011. On November 24, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On November 28, 2011, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On November 28, 2011, the Center requested the Complainant to confirm that a copy of the Complaint, together with the Complaint Transmittal Coversheet, had been sent or transmitted to the Respondent in accordance with the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), paragraph 2(b). On December 2, 2011, the Complainant confirmed that a copy of the Complaint, together with the Complaint Transmittal Coversheet, along with the annexes, had been transmitted to the Respondent.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules and the WIPO Supplemental Rules for Uniform 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 December 5, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was December 25, 2011. The Respondent was informed that if his response was not received by that date, he would be considered in default and the Center will proceed to appoint an Administrative Panel to review the facts and to decide the case. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 28, 2011.
The Center appointed Vinod K. Agarwal as the sole panelist in this matter on January 9, 2012. 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
From the Complaint and the various annexures to it, the Panel has found the following facts:
The Complainant is a company incorporated according to the laws of India. The Complainant has stated that it is in the business of providing services relating to astrological predictions, horoscope preparation and consultation relating to relating to astrological science since 1992. The Complainant is also providing astrology, numerology and palmistry related consultation and online services. The Complainant also conducts audio-visual programmes on media, publications in print media and undertakes manufacture and trade of gemstones and jewelry in and outside India.
The Complainant is carrying on its business activities from the domain name <astroscience.in> under which LAL KITAB AMRIT has been promoted as a product since 2009.
Respondent’s identity and activities
The Respondent did not reply to the Complainant’s contentions. Hence, the Respondent’s activities are not known.
The disputed domain name <lalkitabamrut.com> was registered on September 2011.
5. Parties’ Contentions
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are applicable to this dispute.
In relation to element (i), the Complainant contends that it is the owner of the mark LAL KITAB AMRIT in respect of astrological predictions, etc. The Complainant registered the domain name <lalkitabamrit.in> in 2010. It is the corporate site of the Complainant. Further that, due to extensive and continuous use of the domain “lalkitabamrut”, the said site is associated with the Complainant. The Complainant is also promoting its mark LAL KITAB AMRIT through television programmes which are aired on various channels. The Respondent has registered the domain name by adopting the entire name of the Complainant.
The Complainant has also registered various domain names under different gTLDs and ccTLDs incorporating the mark LAL KITAB AMRIT. Such domain names are mentioned in Annexure E to the Complaint.
In relation to element (ii), the Complainant contends that the Respondent (as an individual, business, or other organization) has not been commonly known by the disputed domain name <lalkitabamrut.com> as the Respondent is known as “AstroCAMP”. The disputed domain name <lalkitabamrut.com> is not a descriptive word in which the Respondent may have a genuine interest. The Respondent is making no use of the disputed domain name in connection with a bona fide offering of goods or services. Moreover, the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. The Respondent registered the disputed domain name for the sole purpose of confusing, misleading and misdirecting the public and the customers of the Complainant.
In support of its contentions, the Complainant has relied on the following earlier decisions:
(a) Compart AG v. Compart.com/Vertical Axis, Inc., WIPO Case No. D2009-0462.
(b) Express Scripts, Inc., v. Windgather Investments Ltd., WIPO Case No. D2007-0267.
(c) Asian World of Martial Arts Inc., v. Texas International Property Associates, WIPO Case No. D2007-1415. In this case it has been held that “the Disputed Domain Names appear designed to attract Internet users who are looking for Complainant’s PRO FORCE goods, appear to cause confusion with Complainant’s mark and websites, appear to disrupt Complainant’s business by diverting consumers away from Complainant’s website, and do all these things for commercial gain because Respondent profits from the PPC revenue generated by these websites.”
Regarding the element at (iii), the Complainant contends that the Respondent’s main intention in registering the disputed domain name <lalkitabamrut.com> by the Respondent is to mislead the general public and the customers of the Complainant. In support of its contentions, the Complainant has relied on the following cases:
(a) BC Northern Lights Enterprises Ltd. v. Sunlight Sheds, WIPO Case No. D2007-1098 in which the Panelist has held that, “The respondent’s registration and use of the domain name is in bad faith as it is solely for the purpose of trading on the goodwill of the Complainant’s trademark by baiting consumers in order for the respondent to offer them products similar to those sold by the complainant.”
(b) Royale Indian Tours Limited v. Divino Indian Memoirz Tours Pvt. Ltd., WIPO Case No. D2010-2107.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(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.
A. Identical or Confusingly Similar
The present dispute pertains to the disputed domain name <lalkitabamrut.com>. The word “lalkitabamrut” is a combination of three words of Hindi. Hindi is the commonly spoken language of India. LAL or “lal” means red; KITAB or “kitab” means book; and Amrut” means nectar. The word “amrut” is pronounced differently in various languages and dialects in India. In fact the words “amrut”, “amrat” and “amrit” have the same meaning.
The Respondent created the disputed domain name <lalkitabamrut.com> on September 15, 2011. The said registration expires on September 15, 2012.
The Complainant has stated that in India it has also applied for trademark registration of the mark LAL KITAB AMRIT in classes 9, 16, 25, 35, 36, 38, 41, 42 and 45.
The Panel notes that the trademark registration is pending. However, for the purposes of the Policy, in this Panel’s view, the evidence provided by the Complainant suffices to prove its rights over LAL KITAB AMRUT unregistered mark.
In view of the above, the Panel notes that the Complainant is using the trademark LAL KITAB AMRUT since 2009, and this Panel is satisfied with the compelling evidence provided by the Complainant to show that LAL KITAB AMRUT has become a distinctive identifier.
The LAL KITAB AMRUT mark has been used in the disputed domain name. The two names, “lalkitabamrit” and “lalkitabamrut” are almost identical and confusingly similar in appearance and pronunciation. It has been held by WIPO UDRP panels that addition, deletion or change of one word from the trademark of the complainant will not alter the nature of the domain name. In Estee Lauder Inc. v. estelauder.com, WIPO Case No. D2000-0869, the Panel compared the respondent’s domain name <estelauder.com> with the complainant’s trademark ESTEE LAUDER and came to the conclusion that the absence one “e” was the only difference and concluded that the respondent's domain name is “confusingly similar to the Complainant's mark". Similar conclusions have been arrived at by the panels in the cases of Pharmacia & Upjohn AB v. Dario H. Romero, WIPO Case No. D2000-1273 (“pharmacia” and “pharmaciae”) and Briefing.com Inc. v. Cost Net Domain Name Manager, WIPO Case No. D2001-0970.
Thus, the Panel finds that the domain name is confusingly similar to the unregistered mark of the Complainant.
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, the Respondent may demonstrate its rights to or legitimate interest in the disputed domain name by proving any of the following circumstances:
(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.
The Respondent has not filed any response. Based on the evidence provided by the Complainant, it is presumed that the above circumstances do not exist in this case and that the Respondent has no rights or legitimate interests in the disputed domain name.
Further, in view of the fact that the Complainant has not licensed or otherwise permitted the Respondent to use its mark or to apply for or use the disputed domain name incorporating the Complainant’s mark and that, in this Panel’s view, it is unlikely that someone would use the word “lalkitabamrut” unless seeking to create an impression of an association with the Complainant, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration or use of the domain name in bad faith:
(i) Circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) The Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that it has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, internet users to its web site or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or location or of a product or service on its web site or location.
The disputed domain name redirects the Complainant’s customers to the Respondent’s website where the various advertisements have been put up which are likely to create confusion with the Complainant’s mark. The website under the disputed domain name displays different advertisements with sponsored listings such as call centre software, match-making websites, design software, job searches, etc. Some of the advertisements show products and services related to those of the Complainant such as horoscope making, etc.
This and the written evidence submitted by the Complainant lead to the presumption that the disputed domain name was registered and used by the Respondent in bad faith. The Panel concludes that the registration of the disputed domain name amounts to the registration and use of the domain name in “bad faith”.
In the light of the foregoing reasons, namely, that the disputed domain name is confusingly similar to the trademark in which the Complainant has a right, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered in bad faith and is being used in bad faith, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <lalkitabamrut.com> be transferred to the Complainant.
V. K. Agarwal
Dated: January 18, 2012