ABN LEADR Domain Name Dispute Administrative Panel Decision (single panellist) Regarding the domain name: <eastcoastparkcabins.com.

Transcription

1 ABN LEADR Domain Name Dispute Administrative Panel Decision (single panellist) Regarding the domain name: <eastcoastparkcabins.com.au> Matter: audrp 10/07 Complainant: Respondent: Wendgold Pty Ltd (t/a Eastcoast Homes & Park Cabins) Ozbiz Holdings Pty Ltd 1. The Parties 1.1 The Complainant is Wendgold Pty Ltd, t/a Eastcoast Home & Park Cabins ( Wendgold ). The complainant is not legally represented. Cheryl Gabriel has handled this matter on behalf of the Complainant. 1.2 The Respondent is Ozbiz Holdings Pty Ltd ( Ozbiz ). The respondent is also not legally represented. Jim Munro has handled this matter on behalf of the Respondent. 2. Subject Matter of Complaint 2.1 Domain Name in Dispute: eastcoastparkcabins.com.au. 3. Basis of Determination 3.1 This dispute has been brought for determination by a single panellist under the provisions of Schedule A of the.au Dispute Resolution Policy ( audrp ). 3.2 Section 4 covers Mandatory Administrative Proceedings. 3.3 Section 4(a) deals with Applicable Disputes and states: You are required to submit to a mandatory administrative proceeding in the event that a third party (a Complainant ) asserts to the applicable provider, in compliance with the Rules of Procedure that: i) Your domain name is identical or confusingly similar to a name, trademark or service mark in which the Complainant has rights; and ii) iii) You have no rights or legitimate interests in respect of the domain name; and Your domain name has been registered or subsequently used in bad faith. Level 1, Bridge Street, Sydney NSW 2000 T: F: leadr@leadr.com.au

2 In an administrative proceeding, the Complainant bears the onus of proof. 4. Procedural History 4.1 The complaint was submitted for a decision in accordance with the (audrp) Policy and Rules, which was approved by auda in 2001 and commenced operation on 1 August 2002, and LEADR's Supplementary Rules. LEADR is the Provider. 4.2 The complete application was received from the Complainant (Wendgold), by LEADR, on 18/03/ On 22/03/2010, LEADR sent the Respondent (Ozbiz) by post and , a dispute notification letter and a copy of the complaint. 4.4 A copy of the complaint and the dispute notification letter sent to the Respondent were also posted to the registrar Enetica on 22/03/ The Registrar was also sent an on 22/03/2010 requesting that they lock the domain name in dispute. 4.6 LEADR advised auda of the complaint on 22/03/2010, via On 22/03/2010, LEADR sent a notification letter to the Complainant (Wendgold), by , with a copy of the notification letter sent to the Respondent. 4.8 The due date for responding to the complaint was confirmed as 15/04/ On 23/03/2010, the Registrar confirmed, via , that the domain name in dispute had been locked On 16/04/2010, the Respondent (Ozbiz) submitted a response to the domain name complaint On 19/04/2010 the provider approached the panellist. The panellist confirmed his availability, informed LEADR that he had no conflict issues with the parties, and accepted the matter on 19/04/2010. Page 2

3 4.12 The Panellist was informed on 19/04/2010 that the package was being sent for Adjudication, via On 22/04/10 the Panellist received the package of submissions and related materials (including correspondence from the parties) LEADR was informed that determination process would commence immediately, and that the determination would be published electronically, on or before 06/05/ The Complainant s Case - Factual Background and Arguments The disputed domain name is identical or confusingly similar to a name, trade mark or service mark in which the Complainant has rights 5.1 Wendgold operates a business trading as: Eastcoast Homes & Park Cabins. It has a website designed around this trading name and is the registered owner of the domains: <eastcoasthomes.com.au> and <eastcoastparkcabins.com>. 5.2 Both URLs point to the same Eastcoast Homes & Park Cabins website. Arguments 5.3 The disputed domain name is a derivative of the Complainant s trading name. 5.4 The Respondent knew this to be the case as it previously provided IT and web hosting services to the Complainant and registered both of the above domains on the Complainant s behalf. The Respondent has no rights or legitimate interests in respect of the domain name The Complainant asserts that: 5.5 The disputed domain name is not an exact match, abbreviation or acronym of the Respondent s name or trademarks, nor is it otherwise closely and substantially connected to the Respondent, as required by Schedule C (sections: 2a. and 2b.) of the auda Domain Name Eligibility and Allocation Policy Rules for Open 2LDS, Policy No: The disputed domain name does not satisfy the requirements of the close and substantial connection rule as the Respondent does not offer a product or service that carries the disputed name, per section 10.5 (a) and (b), of the Guidelines for Accredited Registrars on the Interpretation of Policy Rules for Open 2LDS ; Policy No: Page 3

4 Argument 5.7 It follows from the foregoing that Ozbiz has no rights or legitimate interests in the disputed domain name. Deceptive and Misleading Conduct and Bad Faith The Complainant asserts that: 5.8 On 18 th May 2009, the Complainant advised the Respondent of its intention to sever their business relationship and to move on to another provider for future computer and web hosting services. T 5.9 On the following day, 19 th May 2009, the Respondent registered the disputed domain name Subsequently, on an unspecified date, the Respondent offered the disputed domain name for sale on its own website: Shopsafe Australia by Ozbizweb The URL: < is directed at <Eastcoastvillagehomes.com.au>, a direct competitor to the Complainant A current Whois search on <eastcoastparkcabins.com.au> shows Jim Munro (Respondent) as the registrant of the domain. Arguments 5.13 The Respondent has deliberately registered, and subsequently operated, the disputed domain to negatively affect the Complainant s business Re-directing web traffic to a direct competitor s website using the disputed domain name constitutes bad faith The Respondent s refusal to take remedial action after notification, or to agree to sell the domain names to the Complainant, are further evidence of bad faith. Remedy Sought 5.16 The Complainant requests that the Respondent be required to either cancel their registration of the disputed domain, or transfer it to the Complainant at the normal rate from Ozbiz. 6. The Respondent s Case - Factual Background and Arguments The Respondent s response was due on 15 th April The Respondent sent an to LEADR on 16 th April 2010, which did not specifically address many of the issues raised in the Complainant s submission. The following points have been derived from correspondence provided in this matter: Page 4

5 6.1 The Respondent does not deny registering the disputed domain name. 6.2 The Complainant had previously rejected the Respondent s suggestion that they register the domain for themselves. 6.3 The Complainant was several months overdue in paying their annual hosting account with the Respondent. The Complainant wanted to pay for just a couple of months, whereas the Respondent s terms had always been payment for a full year. 6.4 The Complainant s account remained unpaid when they advised their intention to transfer their business to another service provider. 6.5 The Complainant was slow to effect the necessary transfer to its new host, which required further utilisation of the Respondent s services, despite the continuing non-payment of their account. 6.6 The Respondent has corresponded promptly and respectfully with the Complainant throughout this matter. 6.7 The Respondent confirmed that: We bought the domain to operate a profitable enterprise there was no malice, not in the slightest. Principles to be applied / Bases for Respondent to retain the disputed domain 7.1 The Respondent asserts that it was entitled to register the domain for its own use. 7.2 The Respondent is not concerned to retain the domain name for its own use as: there are hundreds of similar combinations still available for us to use. 7.3 The Respondent states: If you find in our favour (and I expect that you will) we undertake to give the domain to the complainant if they donate $500 to a taxdeductible registered charity. 8. Decision, with brief reasons 8.1 The Complainant has prepared and presented its case with appropriate supporting materials. 8.2 The Respondent has made an informal submission in response, defending its position. 8.3 On the facts presented, this appears to be a minor commercial dispute that has escalated into the domain name space, rather than a normal domain name dispute. Nevertheless, all of the necessary elements are present to allow the matters in dispute to be responsibly resolved under the audrp. 8.4 The essential issue is whether the Complainant has proved that the Respondent has failed all three tests contained in section 4(a) of Schedule A of the audrp: Page 5

6 Question 1: Per 4(a) (i) - is the domain name identical or confusingly similar to a name, trademark or service mark in which the Complainant has rights? 8.5 I find that the domain name: <eastcoastparkcabins.com.au> is identical or confusingly similar to Eastcoast Homes & Park Cabins, being the name, trademark or service mark in which the Complainant has rights. Question 2: Per 4(a) (ii) has the Complainant established that the Respondent has no rights or legitimate interests in respect of the domain name? 8.6 I find that the Complainant established that the Respondent lacks rights or legitimate interests in respect of the disputed domain name because: i) The disputed domain name is not an exact match, abbreviation or acronym of the Respondent s name or trademarks, nor is it otherwise closely and substantially connected to the Respondent, as required by Schedule C (sections: 2a. and 2b.) of the auda Domain Name Eligibility and Allocation Policy Rules for Open 2LDS, Policy No: ii) The disputed domain name does not satisfy the requirements of the close and substantial connection rule as the Respondent does not offer a product or service that carries the disputed name, per section 10.5 (a) and (b), of the Guidelines for Accredited Registrars on the Interpretation of Policy Rules for Open 2LDS ; Policy No: Question 3: Per 4(a) (iii) has the Respondent registered or subsequently used its domain name in bad faith? 8.8 I find that, on the facts, the Respondent registered the disputed domain name for the primary purpose of getting back at the Complainant and that this constitutes registration in bad faith. 8.9 I find that, as a result of re-directing traffic from the disputed domain to one of the Complainant s direct competitors, that the Respondent also subsequently used the disputed domain name in bad faith, as defined by paragraph 4(b)(iii) of the audrp which states, with reference to 4(a)(iii) of the Policy, evidence of the registration and use of a domain in bad faith as: you have registered the domain name primarily for the purpose of disrupting the business or activities of another person. 9. Remedies Requested 9.1 In accordance with 4(i) of the Policy, the Complainant requests a decision that either cancels or transfers the domain to the Complainant. Page 6

7 9.2 The Respondent has expressly indicated that if they succeed in this matter they are willing to transfer the disputed domain to the Complainant, provided the latter makes a $500 donation to any registered charity. 9.3 I find, for the reasons given above, that the Complainant has succeeded on all three required arguments and accordingly, in compliance with auda policies, I order the immediate transfer of the disputed domain name from the Respondent to the Complainant, without cost to the Complainant. Signed as a Determination Jon Kenfield Panellist 6 th May 2010 Page 7