WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mary Victoria Kufeldt-Antle and Quadgirl, S. de R.L. de C.V. v. Kelly Williamson Martin, Kelly MacRae, Kelly Martin
Case No. D2018-1421
1. The Parties
Complainants are Mary Victoria Kufeldt-Antle (“ComplainantMary”) and Quadgirl, S. de R.L. de C.V. (“ComplainantCo”) of Los Barriles, Baja California Sur, Mexico, represented by Consultoría MD, Mexico.
Respondent is Kelly Williamson Martin, Kelly MacRae, Kelly Martin, of Los Barriles, Baja California Sur, Mexico, self-represented.
2. The Domain Names and Registrars
The disputed domain names are <quadgirl.com>, <quadgirl.info> and <quadgirl.net> which are registered with Wild West Domains, LLC, and <quadgirlmx.com> which is registered with GoDaddy.com, LLC (the “Registrars”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 26, 2018. On June 28, 2018, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On June 29, 2018, the Registrars transmitted by email to the Center their verification response confirming that Respondent is listed as the registrant of the disputed domain name <quadgirlmx.com> and providing the contact details of the registrant of the other disputed domain names.
On July 12, 2018, the Center sent an email in English and Spanish to the Parties regarding the language of the proceeding, since the Complaint was filed in English and Spanish and the language of the registration agreement is English. On July 14, 2018, Complainants reiterated their request of having Spanish as the language of the proceeding. On July 17, 2018, an entity claiming that would act as Respondent’s representative accepted in having Spanish as the language of the proceeding. In response to a request of clarification by the Center in relation to the existence of multiple underlying registrants, Complainants filed an amended Complaint on July 14, 2018. In response to a request of clarification by the Center, Complainants filed an amendment to the amended Complaint on July 23, 2018.
The Center verified that the Complaint together with the amended Complaint and the amendment to the amended Complaint (hereinafter, 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 Respondent of the Complaint, and the proceedings commenced on July 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 13, 2018. On August 13, 2018, Respondent’s representative requested an extension of the Response due date, which the Center granted on that same date and the Response due date was extended to August 17, 2018, in accordance with the Rules, paragraph 5(b). On August 13, 2018, the Center received an email communication from Complainants, which the Center replied on August 14, 2018. The Center received several informal email communications from Respondent on August 15 and 16, 2018, including that she would represent herself. The Center informed the Parties about the commencement of the panel appointment process on August 20, 2018. A supplemental filing was sent by Complainant to the Center on August 20, 2018. Two supplemental filings were sent by Respondent to the Center on August 28 and September 1, 2018.
The Center appointed Gerardo Saavedra as the sole panelist in this matter on September 3, 2018. This Panel finds that it was properly constituted. This 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
ComplainantMary has rights over the QUADGIRL trademark for which she holds the following registrations with the Mexican Institute of Industrial Property (“IMPI”): registration No. 1893299, in class 35; registration No. 1893303, in class 39; and registration No. 1893304, in class 41, all registered on June 11, 2018 and with application date of March 20, 2018.
ComplainantCo was incorporated through notarial instrument dated January 11, 2018. In such notarial instrument, ComplainantMary appears as the holder of 98% of the equity capital and as Sole Manager of ComplainantCo.
The disputed domain names were created: <quadgirl.com> on January 16, 2017, <quadgirl.info> and <quadgirl.net> on January 26, 2017, and <quadgirlmx.com> on February 26, 2018.
Respondent was an employee of ComplainantMary (and other individual) from April 1, 2017 to April 1, 2018.
According to the evidence provided by Complainants, the website associated to the disputed domain name <quadgirl.com> showed on July 13, 2018, among others, the legends “The Original QuadGril – Kelly. | The Original QuadGirl” followed below by an image with the word “QUADGIRL”, further below “Kelly Martin – The Original QUADGIRL”, and further below “Thanks, to all of you who have supported QUADGIRL through our transition. We are forever grateful for your business.” There is no evidence in the file of the content of the other disputed domain names.
5. Parties’ Contentions
A. Complainants
Complainants’ assertions may be summarized as follows.1
ComplainantMary is the legal owner of the QUADGIRL trademark and of the Quadgirl business engaged in motorcycle rentals, business administration and entertainment services, and also is the former employer of Respondent who worked as general manager at such Quadgirl business from April 1, 2017 to April 1, 2018.
ComplainantCo was formed to give a better business cohesion to the motorcycle rentals, business administration and entertainment services, and it was supposed to be the assignee of the disputed domain names which has not been possible due to the commercial hostile attitudes of Respondent that includes the wronlgy appropriation of the websites subject matter of the dispute.
Respondent (Kelly Williamson Martin, also known as Kelly Martin and/or Kelly MacRae) is a citizen of the United States of America with permanent residence in Mexico.
In early January 2017 ComplainantMary had a meeting with Respondent. Since Respondent had just recently stopped being manager of a quad rental business, property of her former husband, ComplainantMary offered Respondent to work as manager for a business entity of quad rentals to be named Quadgirl, and to that end ComplainantMary started to get investors and to create prospective channels. As of that time, Respondent started to perform diverse acts in the name of ComplainantMary.
On March 1, 2017, ComplainantMary signed a lease agreement over a real property, where since then the Quadgirl quad rental business has been located. Since the aforementioned date such business has been listed at said location with TripAdvisor. On April 1, 2017, the labor relationship with Respondent was formalized and the latter started to work as general manager of ComplainantMary’s Quadgirl business. On April 26, 2017, Respondent sent to clients a notice where Respondent openly recognized to work for a new entity named Quadgirl.
On April 20, 2018, the termination of the labor relationship with Respondent was ratified before a Labor Court. In total breach of what was set forth in the labor termination agreement and right after its signature, Respondent has been doing diverse acts of different nature in order to discredit ComplainantMary’s business, generate bad reputation before the latter’s clients, present herself as the “Real QuadGirl” generating confusion over final customers, and to appropriate the disputed domain names of a business that is not Respondent’s property.
On June 17, 2018, ComplainantMary received an e-mail from GoDaddy stating that the disputed domain names had been transferred to Wild West Domains2 and thus ComplainantMary immediately called GoDaddy staff who were unable to provide any reason for the transfer made by her former employee.
Respondent filed a trademark application for QUADGIRL were she states having had a motorcycle rental business since February 2017, which is contrary to good faith.3 Respondent worked devotedly in ComplainantMary’s business. In the use of basic logic, however, ComplainantMary would not hire someone that had a similar business name to ComplainantMary’s or that is a commercial competitor. The labor termination agreement establishes that Respondent worked from Monday to Saturday at least 8 hours a day, thus it is unbelievable that Respondent states that she was able to manage a similar business after working 48 hours a week.
The disputed domain names are similar to a trademark in which Complainants have rights as shown in the QUADGIRL trademark registrations and corporate name of ComplainantCo.
Respondent has no rights or legitimate interests in respect of the disputed domain names. Paragraph 4(c) of the Policy states three circumstances according to which Respondent could be considered to hold rights and/or legitimate interests over the disputed domain names. From the facts listed in the Complaint, the appointed panel will be able to verify that none of such circumstances exists to show that the disputed domain names have been used in good faith by Respondent.
It should be deemed that the disputed domain names are used in bad faith with the clear goal of disrupting the commercial activity of Respondent’s former employer by virtue of illegal motives based on emotions unsupported in good faith business facts, besides that Respondent intentionally attempts to attract for commercial gain Internet users to Respondent’s website creating a likelihood of clear confusion with ComplainantMary’s business.
Complainants request that the disputed domain names be transferred to Complainants.
B. Respondent
Respondent did not file a formal Response. However, as noted above, on August 15 and 16, 2018, the Center received informal email communications from Respondent with substantive arguments, whose most relevant content may be summarized as follows.
Respondent elected to reply by herself and opposed to the proceeding be conducted in Spanish. Respondent attested to all the various modalities of her name as being the same person.
Complainants cleverly gained control of Respondent’s intellectual property, learned the business from Respondent and then terminated her. Complainants falsely accused Respondent and defamed her while using Respondent’s website to post false and damaging statements. This is a case of willful and unlawful acts by Complainants.
Respondent has been the lawful owner of the disputed domain name <quadgirl.com> since January 15, 2017, which she established as a going enterprise, created and paid for logos and signage and has a long list of satisfied clients.
From 2012 to 2016 Respondent worked in a quad rental business in Los Barriles, as operations manager and developed a personal relationship with approximately 800 clients. On January 15, 2017 Respondent purchased <quadgirl.com> and started her own Quad/ATV rental business. On January 17, 2017 Respondent began renting quads, doing business as “QuadGirl.com”, and on January 24, 2017 Respondent received QuadGirl artwork and a release letter. On February 5, 2017 Respondent sent emails to her client database introducing <quadgirl.com>. On February 17, 2017 Respondent obtained web hosting with Powerful Site Solutions for <quadgirl.com> and acknowledgment of her ownership by ComplainantMary and her sister.
Approximately on March 1, 2017, Respondent and ComplainantMary reached a “ladies agreement”, where Respondent would provide the customers, her website, her logo and expertise and ComplainantMary would provide the rental equipment and pay Respondent a monthly salary, to include the use of Respondent’s intellectual property. Respondent continued to operate as the sole proprietor of <quadgirl.com> renting quads to her established customers.
On March 30, 2017, QuadGirl and ComplainantMary rented their first Quad/ATV together. This is the beginning of the agreed association, where ComplainantMary provided the rental equipment and Respondent provided the clients produced from her website at <quadgirl.com>. On April 15, 2017, a Palapa storefront opens, all signage and artwork was provided by Respondent to promote the QuadGirl brand. During this time ComplainantMary’s sister acted as the webmaster, maintaining the website, and had access to all the usernames and passwords to maintain the website. Business continued under this scenario for about one year. On May 20, 2017, Respondent’s Trip Advisor listing for QuadGirl was approved and received its first review.
On March 25, 2018, Respondent was told that she was suspended without pay, without formal notice or reason. Respondent worked for ComplainantMary, there was no formal entity. That was a deliberate breach of their friendly agreement. Shortly after the so-called suspension, Respondent started to detect unauthorized changes to the credentials on her website and was soon locked out as the password was changed, the hosting company was changed and in short ComplainantMary and her sister willfully and malicious robbed Respondent of her intellectual property, they changed the phone numbers and email address and started to use Respondent’s website as splash page for their page at “www.quaddawgs.com”, which is their primary page where they consistently use the QuadGirl name and pirated artwork.
Sometime in April 2018, shortly after Respondent’s suspension and after the theft of her property, ComplainantMary willfully posted a malicious and false accusation on the “www.quaddrawgs.com” website, defaming Respondent. In her post, ComplainantMary falsely refers to herself as the owner of Quadgirl. At that time ComplainantMary had no formal business entity, there was no trademark, no corporation and no website other than “www.quaddrawgs.com” which she owned, and then the “www.quadgirl.com” website was being pointed to “www.quaddrawgs.com” website.
On April 20, 2018, a labor settlement with ComplainantMary was reached. That settlement was not with QuadGirl but solely with the individuals ComplainantMary and Duyane. There was no settlement relative to the use of “www.quadgirl.com” or the artwork and logos belonging to Respondent. At that time, having been swindled out of her intellectual property including all email addresses, Respondent started “www.quadgirlmx.com” and started rebuilding her quad business.
On May 18, 2018, after significant effort and numerous submittals verifying Respondent’s ownership of <quadgirl.com>, Respondent’s petition was granted and <quadgirl.com> was returned to her control and remains in her control today.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
The general rule under paragraph 11(a) of the Rules is that the language of the administrative proceeding shall be the language of the Registration Agreement (i.e. English), unless otherwise agreed to by the parties, and subject to the authority of the panel to decide otherwise taking into consideration the circumstances of the case. The Complaint was filed in Spanish and English, and Complainants asked for the proceeding to be conducted in Spanish, although they expressly recognized that this Panel may issue this decision in either language. Respondent’s representative firstly did accept Complainants’ request. However, later on Respondent herself asked for the proceeding to be conducted in English. The communications from the Center to the Parties were in both English and Spanish. This Panel is fluent in both languages and from the evidence in the file it is clear to this Panel that the Parties are able to communicate in both languages. Taking into account the aforesaid, this Panel resolves to have this proceeding conducted in English.4
Respondent’s email communications received by the Center before the due date for the Response do not comply with all the requirements applicable to a proper response as set forth in the Rules, paragraph 5(b). However, it is clear that Respondent is not assisted by legal counsel. Thus in this case, this Panel has decided to take into account said email communications.5
As noted above, the Center received unsolicited supplemental filings from both Parties. The Rules do not provide for supplemental filings. Paragraph 10 of the Rules enjoins the panel to conduct the proceeding “with due expedition” and empowers the panel to “determine the admissibility, relevance, materiality and weight of the evidence”. In this case, this Panel has decided not to take into account such supplemental filings since the arguments and materials contained therein could have been filed along with the Complaint and by the due date for the Response. In any event, if this Panel had taken into consideration such supplemental filings, that would not have changed the outcome of this proceeding.
The burden for Complainants, under paragraph 4(a) of the Policy, is to show: (i) that each of the disputed domain names is identical or confusingly similar to a trademark or service mark in which Complainants have rights; (ii) that Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) that each of the disputed domain name has been registered and is being used in bad faith.6
In examining the record of the present case, this Panel wonders whether the Parties could have put forward better and clearer arguments and more evidence. As set forth in other UDRP cases, this Panel reiterates that it is the Parties’ responsibility to present their case with appropriate arguments and evidence.7
A. Identical or Confusingly Similar
It is clear that ComplainantMary has rights over the QUADGIRL trademark, which was registered in June 2018. For purposes of paragraph 4(a)(i) of the Policy, it is irrelevant whether such rights accrued before or after the registration of the disputed domain names.
Since the addition of a generic Top-Level Domain (“gTLD”) suffix after a domain name is technically required (such as “.com”, “.net” and “.info”), it is well established that such element may be disregarded where assessing whether a domain name is identical or confusingly similar to a trademark. Each disputed domain name wholly incorporates such trademark without any variation, except for the letters “mx” added to one of them. Based on the aforesaid, it is clear that the disputed domain names <quadgirl.com>, <quadgirl.info> and <quadgirl.net> are identical to such trademark, while the disputed domain name <quadgirlmx.com> is confusingly similar to such trademark since the addition of the letters “mx” does not prevent a finding of confusing similarity.
Thus this Panel finds that Complainants have satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Complainants argue that none of the circumstances listed in paragraph 4(c) of the Policy is present in the case at hand. However, such listing does not exclude any other circumstances that may evidence Respondent’s rights or legitimate interests on the disputed domain names.8
An email of February 5, 2017, in essence reads as follows: “Dear friends and clients, I would l[i]ke to let you know that I have decided to leave my Management position at Quadman ATV Rentals […] However I will be acting a a booking agent for the various rental companies here in Los Barriles [...] Thank you for your great business relationship during my time at Quadman […] Please contact me for any of your future rental needs […] Soon you will see Quadgirl ATV Rentals and Adventure Tours. Saludos Kelly quadgirllb@[…] www.quadgirl.net”. This email demonstrates that at that time Respondent started to promote a “Quadgirl” business, with an express reference to the disputed domain name <quadgirl.net>.
An email of February 17, 2017, makes reference to the disputed domain names <quadgirl.com>, <quadgirl.info> and <quadgirl.net> as follows: “Hi Kelly, Attached is the receipt for your website hosting. This will be an annual fee and is set to automatically renew (February 2018). Your website is now up at quadgirl.com, and the other two domain names you own (quadgirl.info and quadgirl.net) also forward to quadgirl.com […] Warm regards, Chyanna (Mary’s sister) […]”. According to Respondent, such email was sent by ComplainantMary’s sister to Respondent and to ComplainantMary (in this regard, this Panel notes that Complainants’ email provided with the Complaint is the one shown in said email). Such email demonstrates that at that time such disputed domain names and the corresponding website hosting belonged to Respondent.
ComplainantMary leased a real property on March 1, 2017, and afterwards a rental business called “Quadgirl” was established at such location. Complainants produced an email attributed to Respondent (sent from an email account “jodi@[...]), dated April 26, 2017, which in essence reads as follows: “Dear valued customer, As a long standing customer, I wanted to personally reach out to you and share an exciting new venture I have been presented! Some friends with experience in the rental industry, have offered me an opportunity to manage their new ATV/UTV rental business in Los Barriles, QuadGirl ATV/UTV Rentals. After years of serving you, I am very excited to make the move and work with some wonderful people at QuadGirl. As manager, I will continue to provide the same personal attention you have always known and you can expect the same level of customer service from all our staff at QuadGirl […] Sincerely, Kelly Martin Manager […] www.quadgirl.com”. This email demonstrates that Respondent started to work as manager at a third party’s rental business called “QuadGirl ATV/UTV Rentals” located at Los Barriles, without specifying a street address.
Complainants assert that since early January 2017 Respondent started to perform “diverse acts” in the name and representation of ComplainantMary. Such assertion is unsubstantiated. There is no evidence in the file that Respondent had obtained the 3 first-registered disputed domain names on behalf of ComplainantMary (ComplainantCo did not exist at that time). On the other side, Respondent states that approximately on March 1, 2017 she and ComplainantMary reached an agreement, where Respondent would provide the customers, her website, her logo, and expertise and ComplainantMary would provide the rental equipment and pay Respondent a salary, to include the use of Respondent’s intellectual property. However, this Panel has no evidence that support the terms of such an agreement.
The termination of the labor relationship between Respondent, as employee, and ComplainantMary and other individual, as employers, does not address at all any matter relating to the disputed domain names or the commercial name of Complainants’ rental business. Such labor termination, dated April 20, 2018, establishes that Respondent was an employee of ComplainantMary and other individual from April 1, 2017 to April 1, 2018, in an establishment engaged in the rental of motorcycles and razors. This Panel notes that no commercial name is given to such establishment in said labor termination. This Panel is aware of several UDRP cases involving employees’ misappropriation of their employers’ domain names, which does not seem to be the case here.
Based on the arguments and evidence produced by both Parties, it may be validly inferred that Respondent started her own business under the name “quadgirl” before joining ComplainantMary in the rental business located at the real property leased by the latter. It seems there was an understanding to use the term “quadgirl” for such business. However, there is no evidence that gives light to the terms and conditions, or mere understanding, under which Respondent started to work for ComplainantMary, or for the use of the name “quadgirl” for said business and for the use of the 3 disputed domain names first registered by Respondent.
The email of February 17, 2017, supra, makes clear that the 3 disputed domain names referred to therein belonged to Respondent. There is no evidence in the file that shows that later on Respondent had assigned any of the disputed domain names to any of Complainants.
In fact, there is no Complainants’ assertion in the sense that the disputed domain names belonged to them; they claim the disputed domain names based on the fact that ComplainantMary owns the rental business called “Quadgirl” and on the trademark registrations obtained by ComplainantMary on June 11, 2018, and with an application date of March 20, 2018, but not on any arrangement or understanding that the disputed domain names actually belonged to Complainants.
The Complaint states that it was intended to have all the disputed domain names assigned to ComplainantCo (which was formed in January 2018). In any event, Complaintants produced no explanation or evidence on who intended to have the disputed domain names assigned to ComplainantCo and on why or what grounds the disputed domain names were intended to be assigned to it. In this Panel’s view, such Complainants’ allegation confirms that the disputed domain names never belonged to Complainants.
As discussed above, the available record in the present case shows that Complainants have failed to prove Respondent’s lack of rights or legitimate interests in the disputed domain names and thus this Panel finds that Complainants failed under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Given the conclusion reached under the preceding heading, this Panel would generally consider unnecessary to discuss whether Complainants might have succeeded under paragraph 4(a)(iii) of the Policy.
In the case at hand, this Panel wishes to point out that the registration of all disputed domain names predates the QUADGIRL trademark registrations obtained on June 11, 2018, whose applications were all filed on March 20, 2018.
Further, there is no allegation or evidence that ComplainantMary had acquired unregistered trademark rights over the term “quadgirl” before the disputed domain names were registered.9
As such, with the evidence of the case file, in principle it could not be concluded that Respondent registered any of the disputed domain names in bad faith since it was impossible she was aware of a term ComplainantMary had not even used as trademark at that time and there is no evidence of Respondent targeting Complainants at the time of the registration of the disputed domain names.
As set forth above, Complainants’ allegation that Respondent began to act in the name of ComplainantMary since early January 2017, is unsubstantiated.
Complainants’ ambiguous allegations that Respondent has been doing “diverse acts of different nature” to discredit ComplainantMary’s negotiation, generating bad reputation before ComplainantMary’s clients and generating confusion over final customers are not sufficient evidence to support the registration in bad faith. The evidence filed by Complainants, a screenshot of the website associated to <quadgirl.com>, shows that Respondent is promoting her business under the disputed domain name <quadgirl.com>.10
This Panel notes that the Complaint was filed with the Center on June 26, 2018, that is, just a couple of weeks after such trademark registrations were granted, while their applications were filed on March 20, 2018, very close to the date on which Respondent asserts she was suspended from work. ComplainantCo was incorporated in early January 2018, while the fourth disputed domain name was registered late in February 2018. Respondent’s trademark application for QUADGIRL and design was filed on April 11, 2018 (governmental fees for said application were paid on March 7, 2018). All that, along with other elements in the record already discussed above, might lead this Panel to consider whether there is a deeper business dispute underlying the controversy subject matter of this proceeding, which business dispute would be beyond the scope of the Policy.11
Based on all the above, this Panel considers that there are no elements in the record that would clearly lead to a finding of bad faith registration and use of the disputed domain names.
7. Decision
For the foregoing reasons, the Complaint is denied.
Gerardo Saavedra
Sole Panelist
Date: October 10, 2018.
1 Summary made from both the Spanish and English versions of the Complaint.
2 It seems that Complainants refer to an email of June 17, 2017, attached as Annex 8 to the Complaint, which was apparently reforwarded on that date from an email account of Respondent and which only makes reference to <quadgirl.com> and not to the other disputed domain names.
3 This Panel visited IMPI’s website on September 12, 2018, and verified the existence of a trademark application, No. 2038402, which was filed by Respondent on April 11, 2018, and corresponds to the trademark QUADGIRL and design. The stated date of first use of such trademark is January 15, 2017. Such application does not contain any statement about Respondent having had a motorcycle rental business since that date. See section 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
4 Similar situations in Proactiva Medio Ambiente, S.A. v. Proactiva, WIPO Case No. D2012-0182; and Marriott International, Inc. y Marriott Worldwide Corporation c. Miguel Sanchez Barco, WIPO Case No. D2018-0983.
5 Similar situations in NB Trademarks, Inc. v. Domain Privacy LTD and Abadaba S.A., WIPO Case No. D2008-1984; and Banco Bilbao Vizcaya Argentaria, S.A. v. Cesar Arias, WIPO Case No. D2012-1230.
6 See Koninklijke Philips Electronics N.V. v. Relson Limited, WIPO Case No. DWS2001-0003: “Each of the three stated elements are made up of a number of facts, each of which has to be proven in order for the Complainant to succeed [...] Facts are proven through evidence [...] Mere ‘assertions’ are nothing more than argument and must in each case be based on facts proved through evidence”.
7 See Jones Apparel Group, Inc. v. jonesapparelgroup.com, WIPO Case No. D2001-0719: “it is not this Panel’s role to perfect a poor pleading”. See The Skin Store, Inc. v. eSkinStore.com, WIPO Case No. D2004-0661: “The Panel suspects [...] that further evidence could have been produced, but it is not the job of the Panel to hunt it out”.
8 The relevant part of said paragraph 4(c) clearly reads “Any of the following circumstances, in particular but without limitation […]”.
9 See section 3.8 of the WIPO Overview 3.0. Further, this Panel verified ComplainantMary’s trademark registrations at the IMPI’s website on September 12, 2018, and noticed that the corresponding applications for all QUADGIRL trademark registrations contain, in the box for stated date of first use, the statement that such trademark has not been used. See section 4.8 of the WIPO Overview 3.0.
10 See Enrique Bernat F., SA v. Marrodan, WIPO Case No. D2000-0966: “The burden of proof lies with the Complainant in all cases to establish actual bad faith by the Respondent. There is no obligation whatsoever on the Respondent to prove good faith, and in any event it is equally important to note that the absence of good faith does not constitute bad faith”.
11 See Hesco Bastion Limited v. Hercules Engineering Solutions Consortium (HESCO) Barriers FZE, WIPO Case No. D2004-0940: “it is not the task of a Panel to solve all infringement cases. The administrative proceeding is restricted to clear willful infringements. Other IP right violations, if any, must be solved by the national courts”. See Weber-Stephen Products Co. v. Armitage Hardware, WIPO Case No. D2000-0187: “If Complainant desires to obtain relief based upon some allegations that Respondent overstepped or overstated the bounds of its arrangement with Complainant, or that no such arrangement exists, that argument is better addressed to a court... On the record presented herein, this Panel must draw the conclusion that Respondent’s use of its domain name was in connection with the bona fide offering of goods and services of Complainant”. See Telaxis Communications Corp. v. William E. Minkle, WIPO Case No. D2000-0005: “This dispute involves the competing rights and legitimate interests of two parties in the domain names... Given the nature of this dispute it is properly solved by mediation or arbitration before the Center or by litigation in a forum of competent jurisdiction”.