Reliance Communications, Inc. v. Laksh Internet Solutions Pvt. LTD.
Claim Number: FA0811001234571
Complainant is Reliance
Communications, Inc. (“Complainant”), represented by Rachel Hofstatter, of Steptoe & Johnson LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <relianceglobalcall.com>, registered with Domaincannon.com LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 18, 2008; the National Arbitration Forum received a hard copy of the Complaint on November 19, 2008.
On November 26, 2008, Domaincannon.com LLC confirmed by e-mail to the National Arbitration Forum that the <relianceglobalcall.com> domain name is registered with Domaincannon.com LLC and that Respondent is the current registrant of the name. Domaincannon.com LLC has verified that Respondent is bound by the Domaincannon.com LLC registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On December 8, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 29, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@relianceglobalcall.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 2, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <relianceglobalcall.com> domain name is identical to Complainant’s RELIANCE mark.
2. Respondent does not have any rights or legitimate interests in the <relianceglobalcall.com> domain name.
3. Respondent registered and used the <relianceglobalcall.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Reliance Communications, Inc.,
is an affiliate of the Anil Dhirubhai Ambani Group, which in turn is the
subsidiary of Reliance Communications Limited.
Reliance Communications Limited is one of
Respondent registered the disputed <relianceglobalcall.com> domain name on May 26, 2008. The disputed domain name resolves to a website that promotes third-parties that directly compete with Complainant in the international calling services industry. In an e-mail to Complainant, Respondent offered to sell the disputed domain name to Complainant for US $23,500.
Respondent has been the respondent in previous UDRP proceedings in which the disputed domain names were transferred from Respondent to the respective complainants in those cases. See, e.g., Ashley Furniture Indus., Inc. v. Laksh Internet Solutions Pvt Ltd, FA 1226035 (Nat. Arb. Forum Nov. 12, 2008); see also Bank of Am. Corp. and FIA Card Serv., Nat. Ass’n v. Laksh Internet Solutions Pvt Ltd., FA 1224032 (Nat. Arb. Forum Nov. 5, 2008).
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The Panel finds that
Complainant’s evidence of registration of the RELIANCE mark with the USPTO
confers rights in the mark upon Complainant for the purposes of Policy ¶ 4(a)(i).
Respondent’s disputed <relianceglobalcall.com> domain name differs from Complainant’s RELIANCE mark in the following ways: (1) the generic top-level domain “.com” has been added; and (2) the phrase “global call” has been added. The Panel begins its analysis by noting that a gTLD is an immaterial addition. See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar). Moreover, the Panel notes that the phrase “global call” is the name for one of Complainant’s main operations. The addition of such a related term serves to only heighten the resulting confusing similarity between a disputed domain name and a mark. See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain name. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). However, the Panel in its discretion chooses to examine the record to determine whether Respondent has any rights or legitimate interests pursuant to the factors outlined in Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
There is no evidence in the record that allows for the conclusion that Respondent is or ever was commonly known by the disputed domain name. Complainant expressly denies any relationship with Respondent. Moreover, the WHOIS information lists the registrant of record as “Laksh Internet Solutions Pvt. LTD.” Without additional evidence in the record, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent is using the disputed domain name to resolve to a
website that displays commercial links to Complainant’s direct competitors,
which the Panel presumes profits Respondent via the receipt of referral
fees. The Panel finds that this is not a
bona fide offering of goods or
services under Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See
Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007)
(holding that the operation of a pay-per-click website at a confusingly similar
domain name was not a bona fide offering
of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or
fair use under Policy ¶ 4(c)(iii)); see
also Vance Int’l, Inc. v. Abend, FA
970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a
pay-per-click website at a confusingly similar domain name does not represent a
bona fide offering of goods or
services or a legitimate noncommercial or fair use, regardless of whether or
not the links resolve to competing or unrelated websites or if the respondent
is itself commercially profiting from the click-through fees).
Complainant alleges that Respondent offered to sell the
disputed domain name to Complainant for US $23,500. The Panel finds that this constitutes an
amount well in-excess of Respondent’s registration costs, and therefore finds
that such an offer evidences Respondent’s lack of rights and legitimate
interests in the disputed domain name under Policy ¶ 4(a)(ii). See George Weston Bakeries Inc. v.
McBroom, FA 933276 (Nat. Arb.
Forum Apr. 25, 2007) (holding that where a respondent makes a
“disproportionate” offer to sell its domain name registration to the
complainant for more than its out-of-pocket registration costs, there is
additional evidence that the respondent lacks rights and legitimate interests
in the disputed domain name); see
also Reese v. Morgan, FA 917029
(Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to
sell a contested domain name for more than its out-of-pocket costs provided
additional evidence that Respondent had no rights or legitimate interests in
the contested domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s offer to sell the disputed
domain name to Complainant for an amount well in-excess of Respondent’s
registration costs indicates that Respondent primarily intended to sell the
disputed domain name upon registration. The Panel finds that Respondent’s indicated consideration
of the disputed domain name’s value as “high” bolsters this finding. The Panel therefore finds that Respondent has
engaged in bad faith registration and use under Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (concluding that
the respondent registered and was using the <gwbakeries.mobi> domain name
in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far
more than its estimated out-of-pocket costs it incurred in initially
registering the disputed domain name); see
also Campmor, Inc. v.
GearPro.com, FA 197972 (Nat. Arb. Forum Nov. 5, 2003) (“Respondent registered the disputed domain
name and offered to sell it to Complainant for $10,600. This
demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(i).”).
Respondent has been the respondent in previous UDRP proceedings in which the disputed domain names were transferred from Respondent to the respective complainants in those cases. See, e.g., Ashley Furniture Indus., Inc. v. Laksh Internet Solutions Pvt Ltd, FA 1226035 (Nat. Arb. Forum Nov. 12, 2008); see also Bank of Am. Corp. and FIA Card Serv., Nat. Ass’n v. Laksh Internet Solutions Pvt Ltd., FA 1224032 (Nat. Arb. Forum Nov. 5, 2008). The Panel therefore finds that Respondent has engaged in a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Armstrong Holdings, Inc. v. JAZ Assocs., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names that infringe upon others’ famous and registered trademarks); see also Australian Stock Exch. v. Cmty. Internet (Australia) Pty Ltd, D2000-1384 (WIPO Nov. 30, 2000) (finding bad faith under Policy ¶ 4(b)(ii) where the respondent registered multiple infringing domain names containing the trademarks or service marks of other widely known Australian businesses).
The Panel finds that Respondent has engaged in bad faith
registration and use under Policy ¶ 4(b)(iii) by
disrupting Complainant’s business through the provision of directly competitive
third-party advertisements on the resolving website. See EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO
Complainant alleges, and the Panel so finds, that Respondent
engaged in bad faith registration and use under Policy ¶ 4(b)(iv) by creating a
likelihood of confusion as to Complainant’s affiliation or endorsement of
Respondent’s website and disputed domain name for commercial gain. See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum
June 7, 2006) (holding that the registration and use of a domain name
confusingly similar to a complainant’s mark to direct Internet traffic to a
commercial “links page” in order to profit from click-through fees or other
revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5,
2007) (holding that the respondent was taking advantage of the confusing
similarity between the <lilpunk.com> domain name and the complainant’s
LIL PUNK mark by using the contested domain name to maintain a website with
various links to third-party websites unrelated to Complainant, and that such
use for the respondent’s own commercial gain demonstrated bad faith
registration and use pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <relianceglobalcall.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: January 16, 2009
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