FIBO Consulting, LTD v. MohammadReza FakhrMoghaddam
Claim Number: FA1708001744548
Complainant is FIBO Consulting LTD (“Complainant”), represented by Vladimir Marusiy, Cyprus. Respondent is MohammadReza FakhrMoghaddam (“Respondent”), Iran.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fibogroup.org>, registered with Tucows Domains Inc.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 15, 2017; the Forum received payment on August 15, 2017.
On Aug 15, 2017, Tucows Domains Inc. confirmed by e-mail to the Forum that the <fibogroup.org> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 18, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 7, 2017 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@fibogroup.org. Also on August 18, 2017, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 20, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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
Complainant asserts trademark rights in FIBOGROUP and submits that the disputed domain name is identical to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant is a Cypriot company;
2. Complainant is the owner of certain trademark registrations, discussed shortly; and
3. the disputed domain name was registered on January 14, 2013
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."
Notwithstanding the absence of a Response, 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.
In this case the Complaint suffers fatally from a lack of supporting evidence required to make out (3) above. Since Complainant’s success depends on proof of all three elements, it is unnecessary for the Panel to consider (1) or (2) but the decision is better understood by the limited discussion of element (1) which now follows.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry - a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
Having regard to what is said in relation to bad faith under (3) below, it is only necessary to consider the first issue – the question of rights.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)).
Complainant provides an untranslated copy of Cypriot Trademark Reg. No. 82946. The document is in Greek. It is not clear from the untranslated document whether or not the registration is in the name of Complainant. However, the trademark is FIBOGROUP and it was registered from July 7, 2014. Putting aside other deficiencies in this evidence, it is this date which is of importance.
Complainant also provides a letter from the European Union Intellectual Property Office (“EUIPO”) indicating that it is the owner of EUIPO Reg. No. 1303697. The Panel has made its own reference to the EUIPO website at https://euipo.europa.eu/eSearch/#details/trademarks/W01303697 which shows that Complainant is the registered owner of a composite trademark composed of a stylised “F” device shown in red, followed by the word FIBOGROUP. Once more, the important information is that the application for that registration was made on July 28, 2016. That is the earliest date from which Complainant can assert rights based on that registration.
The Panel notes that there is no claim to so-called “common law” rights acquired through use of the trademark and no evidence of use accompanied the Complaint.
It follows that even if the Panel accepts and takes into account the evidence of the Cypriot registration as proof of rights belonging to Complainant, those rights accordingly date no earlier than July 2014.
No findings required.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the 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 the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the 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 Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website 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 website or location or of a product or service on the site or location.’
The Panel finds that on the evidence accompanying the Complaint none of those four scenarios is applicable. Complainant’s argument that paragraph 4(b)(i) holds is untenable. The Complainant includes an unsworn transcript of what is said to be a telephone conversation between the parties, initiated by Complainant, which, if sworn, might have shown only that Respondent was prepared to consider selling the domain name for USD1000. It does not amount to evidence that Respondent registered the domain name primarily for the purpose of selling it to Complainant. Any such inference is further negated by what follows now.
Since none of paragraphs 4(b)(i) to (iv) is apt the evidence must, as separate matters, show registration in bad faith and use in bad faith.
There is no evidence of registration in bad faith. The creation date of the disputed domain name predates by more than a year even the most generous date of establishment of Complainant’s trademark rights (see (1) above).
With that finding the Complaint fails. However, for the sake of further certainty the Panel has addressed the assertion of use in bad faith. Complainant’s assertion is that the disputed domain name redirects internet users to a website resolving from <windsorbrokers.com>, a site providing services competitive with those provided by Complainant under the trademark. That claim is unsubstantiated by evidence. The Panel made its own enquiry and found, at the time of the Decision, no redirection to that site or to any other location.
Panel finds that Complainant has not satisfied the third element of the Policy.
Having failed to establish one of the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <fibogroup.org> domain name REMAIN WITH Respondent.
Debrett G. Lyons, Panelist
Dated: September 15, 2017
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