KLA-Tencor Corporation v. Admin Contact / PrivateName Services Inc.
Claim Number: FA1711001760774
Complainant is KLA-Tencor Corporation (“Complainant”), represented by Ryan A. McGonigle of Hodgson Russ LLP, New York, USA. Respondent is Admin Contact / PrivateName Services Inc. (“Respondent”), represented by W.F. Dammers of Hart van Brabantlaan 12, Netherlands.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ade.com>, registered with PSI-USA, Inc. dba Domain Robot (hereafter “PSI-USA”).
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.
Ho Hyun Nahm, Esq. (Chair), Mr. Bart Van Besien and The Honorable Neil Anthony Brown QC as Panelists.
Complainant submitted a Complaint to the Forum electronically on November 30, 2017; the Forum received payment on November 30, 2017.
On December 4, 2017, PSI-USA confirmed by e-mail to the Forum that the <ade.com> domain name is registered with PSI-USA and that Respondent is the current registrant of the name. PSI-USA has verified that Respondent is bound by the PSI-USA 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 December 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 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@ade.com. Also on December 7, 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.
A timely Response was received and determined to be complete on December 22, 2017.
Complainant’s Additional Submission was timely received on December 28, 2017.
On January 9, 2018, pursuant to Respondent's request to have the dispute decided by a three-member Panel, the Forum appointed Ho Hyun Nahm, Esq. (Chair), Mr. Bart Van Besien and The Honorable Neil Anthony Brown QC as Panelists.
Respondent’s Additional Submission was received on January 17, 2018, which was not timely. However, the Administrative Panel (the "Panel") decides to accept it.
On January 19, 2018, pursuant to paragraph 12 of the Rules, the Panel issued a Procedural Order requesting Complainant to provide more evidence in relation to the facts surrounding the change in ownership of the domain name at the end of 2015 or the beginning of 2016 (in particular a declaration by the person called Amit Wasson) by setting a deadline within seven (7) calendar days following its receipt of the Panel's Procedural Order; and requesting Respondent to provide declarations by Niels Heijligers and Bo Pennings (Wux) with regard to the facts asserted in the Response as well as a declaration by the payment provider or the bank of Respondent that the amount of 20,000 USD has indeed been transferred to the seller of the domain name by setting a deadline within seven (7) calendar days following its receipt of Complainant's Supplement as requested above.
On January 25, 2018, Complainant’s Additional Submission in response to the Panel’s Order was timely received. On the same date, Respondent’s Additional Submission in response to the Panel’s Order was also timely received.
Having reviewed the communications records, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
(i) Complainant is a leading manufacturer and provider of process control and yield management solutions that partners with customers around the globe to develop state-of-the-art inspection and metrology technologies. Complainant registered the ADE mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,869,307, registered Dec. 27, 1994). See Compl. Ex. 1. Respondent’s <ade.com> domain name is identical to Complainant’s mark as it adds the generic top-level domain (“gTLD”) “.com” to the fully incorporated mark.
(ii) Respondent has no rights or legitimate interests in the <ade.com> domain name. Respondent is not commonly known by the disputed domain name, as Respondent uses a privacy service to conceal its identity, namely “Admin Contact / Private Name Services inc.” See Amend. Compl. Annex 1. Complainant also has never authorized Respondent to use the mark in any domain name. Further, Respondent does not use the domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent currently fails to make an active use of the at-issue domain name. See Compl. Ex. 6-7 (two screenshots of the domain name without substantive content). Additionally, Respondent lists the domain name for sale on the resolving webpage. See Compl. Ex. 6. Finally, Complainant used to own the domain name until Respondent hijacked the domain name sometime on or around February 2016. See Compl. Ex. 4-5 (Registration receipt and historical WHOIS records).
(iii) Respondent registered and uses the <ade.com> domain name in bad faith, as Respondent initially offered the domain name for sale. See Compl. Ex. 6. Further, Complainant used to own the domain name until Respondent hijacked the domain name by theft sometime in 2016. See Compl. Ex. 4-5.
B. Respondent
(i) While the disputed domain name may be identical to Complainant’s ADE mark, Complainant does not provide any evidence or argument as to why the disputed domain name is confusingly similar. The disputed domain name consists of a generic three letter acronym, ADE, which can be claimed by numerous entities, and Complainant does not assert why it should be able to exclusively monopolize the market of that name. See Resp. Annex 1 (European Union entities which could claim rights in the domain name). Further, Complainant operates its business in the United States, whereas Respondent is located in a different geographical area, the Netherlands, where it plans to operate its travel service business. With Complainant’s only registration being in the United States, Complainant’s rights are restricted to that geographical area.
(ii) Respondent does have rights and legitimate interests in the <ade.com> domain name. Complainant merely makes assertions as to why Respondent has no rights or legitimate interests and does not provide evidence as to the matter. Notwithstanding Complainant’s failure, Respondent has made demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services as shown by Respondent’s extensive business plan. See Resp. Annex 2 & 3 (Respondent’s business plan to offer travel services with accompanying logo). Respondent chose the ADE name for its business because “ad” is short for “advertising” and the “e” is short for the word “effect,” making it perfect to operate a business pertaining to the effect that advertising has on vendors of camping. Further, the ADE acronym is common or generic, and Complainant does not have a monopoly to use this mark on the Internet. Additionally, even if Respondent had registered the domain name for the purpose of selling it, registering generic domain names for sale is a bona fide offering of goods or services in and of itself. Finally, Respondent first registered the domain name without using a privacy service, and only began employing that service because of all the inquiries to purchase the domain name after Respondent decided against selling it. See Resp. Annex 5 (initial WHOIS registration information).
(iii) Respondent did not register and use the domain name in bad faith, and in fact registered the <ade.com> domain name in good faith without intent to harm Complainant or its mark. Respondent registered the domain name by buying the domain name for $20,000.00 from the former registrant “Amit Wasson,” an employee of Complainant, in January 2016. See Resp. Annex 5-7 (WHOIS information, LinkedIn webpage for Amit Wasson, and email thread between Respondent and Amit Wasson). This makes it highly unlikely that Respondent purchased the domain name to later sell it back to Complainant. Although even if Respondent did offer to sell the domain name, that does not establish that Respondent registered the domain name with the intent to sell it. Further, Respondent registered the domain name because of its length, rather than because it correspondents with Complainant’s trademark, and was not even aware of Complainant’s trademark when initiating buying the domain name from the former registrant. Additionally, the ADE mark has numerous meanings, which Complainant does not have a monopoly to use on the Internet. See Resp. Annex 8 (list of meanings for the ADE acronym). Finally, Respondent has made demonstrable preparations to use the domain name; however, at the moment, the webpage on the domain name is still being developed, and mere ownership of the domain name does not qualify as using the domain name in bad faith.
(iv) Respondent alleges that Complainant engages in reverse domain name hijacking.
C. Additional Submissions
Complainant
(i) Complainant’s Additional Submission of December 28, 2017
- Complainant submits that Respondent’s Annex 5 (WHOIS historical record for the Domain from <www.reg.ru> website is neither accurate nor complete;
- As can be seen from Supplemental Annex 1 to this Additional Submission and Exhibit 5 to the Declaration of Kevin McAndrews (“McAndrews Decl.”), the historical records for the <ade.com> domain show historical changes in 2007, 2011, and 2016. Supplemental Annex 1 hereto shows that the database for the disputed domain name was updated on: (i) March 30, 2013; and (ii) October 31, 2013. Supplemental Annex 1 next shows an update transferring the disputed domain name to Respondent (a/k/a “A. Heijligers”) on January 29, 2016.
- Respondent uses its Annex 5 to show that the “owner” of the disputed domain name was an Amit Wasson with an e-mail address of wasson@tech-center.com (the “Tech-Center E-Mail).
- Respondent next uses its Annex 7 to allege that Wasson transferred the disputed domain name to “Niels Heijligers” for $20,000 USD under yet another e-mail address, amitwasson@lycos.com (the “Lycos E-Mail”).
- Respondent’s defense argument against Complainant’s argument on using a privacy shield to hide its identity evinces that Respondent is –at the very least- a sophisticated individual familiar with the operation of domains.
- Given the above and assuming, arguendo, that Respondent bought the disputed domain name from someone with the Tech-Center E-mail, why would he transfer purchase funds to someone with the Lycos E-Mail? Moreover, given Respondent’s level of sophistication, why did Mr. Heijligers not review the history for the disputed domain name and why does Respondent’s historical record omit all reference to Complainant? Would that not have raised a “red flag”? Dilks v. Privacy Administrator/Anonymize, Inc., FA1506001623023 (Forum July 10, 2015) stands for the premise -amongst other things- that Respondent cannot obtain “good title to from a thief through some chain of laundering transactions.”
- If Respondent is indeed a victim, he is a victim who has not provided an independent and sworn declaration documenting the respective transactions. Respondent remains in the shadows and this failure to provide real evidence of an interest in the disputed domain name or that the disputed domain name was registered in “good faith,” only further proves Complainant’s argument.
(ii) Complainant’s Additional Submission of January 25, 2018
Complainant submits a declaration by the person called Amit Wasson stating to the effect that he has never transferred the disputed domain name to anyone; he has never offered or agreed to transfer the disputed domain name to anyone; he does not know nor has he ever owned or used either of the Fraudulent E-mail Accounts; in his capacity, he is not authorized to transfer and/or sell, nor was ever authorized to transfer or sell, any of Complainant’s domains including the disputed domain name; he has never owned the disputed domain name, rather was the administrator for the disputed domain name with his capacity as Program Manager-Information Security of Complainant; and as such, his name was part of the public record for the disputed domain name before it was hijacked, giving the hijacker(s) access to his name for creating a fraudulent record.
Respondent
(i) Respondent’s Additional Submission of January 17, 2018
- Complainant asserts in its Additional Submission that Respondent’s Annex 5 would be inaccurate or incomplete, because the website REG.RU is entirely in the Russian language. Apart from the fact that a Russian website does not prove that the information on that website would be inaccurate or incomplete, the website also has an English version that can be reached through https://www.reg.com or https://www.reg.ru/en/index.
Furthermore, REG.RU is an ICANN-Accredited Registrar following https://www.icann.org/registrar-reports/accredited-list.html, and thus is a reliable party. Therefore, Annex 5 of Respondent has to be considered as accurate.
- In fact, the WHOIS history submitted by Complainant as Supplemental Annex 1 is inaccurate. To prove this, Respondent submitted the complete WHOIS history (102 pages) of the Domain Name as Supplemental Annex 1. In Supplemental Annex 1 can be read that on 31 October 2013 – the WHOIS Lookup date Complainant uses – the Domain Name was indeed registered with the email addresses domainadmins@kla-tencor.com and
However, as of 26 July 2015, the email addresses the disputed domain name was registered with changed to wasson@tech-center.com, as follows from Supplemental Annex 1. The period 2013-2016 is missing in Supplemental Annex 1 of Complainant. Therefore, the information Complainant submitted is inaccurate or at least incomplete. Furthermore, the assertion of Complainant that the email address wasson@tech-center.com is never used by Amit Wasson and the assertion that the Tech-Center E-Mail does not appear in the WHOIS history should be considered as false.
- Complainant implies in its Additional Submission that Respondent would have bought the disputed domain name from someone other than Amit Wasson, because the email address of Amit Wasson’s Escrow.com account did not match the email address wasson@tech-center.com.
This is irrelevant, because this means and proves nothing. It is perfectly possible that Amit Wasson has an Escrow.com account with another email address amitwasson@lycos.com. Moreover, all the communication with regard to the sale of the disputed domain name was always between Respondent and wasson@tech-center.com (see Response Annex 7). Therefore, it is clear that Respondent bought the disputed domain name from Complainant through its employee and former registrant Amit Wasson.
- In the Additional Submission, Complainant refers to B.V. Camping-Frankrijk.nl v. A. Heijligers, DNL2016-0058 (WIPO Jan. 10, 2017), the prior domain dispute in which Respondent was involved. Complainant uses this prior case to assert that Respondent would be involved with domain auctions and would not have a legitimate interest in the disputed domain name. In fact, quite to the contrary, the domain name that was subject to B.V. Camping-Frankrijk.nl v. A. Heijligers, DNL2016-0058 (WIPO Jan. 10, 2017) <campingfrankrijk.nl> is also a part of the “ADE (Ad Effect)” business plan, as can be read on page 4 of the business plan (see Response Annex 2). In the case B.V. Camping-Frankrijk.nl v. A. Heijligers, DNL2016-0058 (WIPO Jan. 10, 2017) the Panelist decided that Respondent had legitimate interests in the domain name. As argued in the Response, the same applies for the disputed domain name <ade.com>. Moreover, because it is acquired as part of the same legitimate project as <campingfrankrijk.nl>.
- In its Additional Submission, Complainant asserts that when buying the disputed domain name the circumstances should have raised a “red flag” by Respondent. However, in fact, the circumstances were not suspicious after all. At the time of buying the disputed domain name, the disputed domain name holder was Amit Wasson (with whom Respondent communicated), the email address of the disputed domain name registrant was (for months) wasson@tech-center.com (through which Respondent communicated with the disputed domain name holder) and this person had access to the disputed domain name token. Why should that raise a “red flag”?
- In conclusion, all assertions Complainant made in its Additional Submission are irrelevant or inaccurate. Therefore, Respondent respectfully requests once more that the Panel denies the remedy requested by Complainant.
(ii) Respondent’s Additional Submission of January 25, 2018
Respondent submits declarations by Niels Heiligers ("Statement A. Heiligers ADE.com.pdf") and Bo Pennings ("Statement mr. Pennings.pdf") with regard to the facts asserted in the Response and a screen dump of the bank account of Respondent that the amount of 20,000 USD has indeed been transferred to the seller of the domain name (Transaction 18-1-2016 escrow.com.pdf). It should be noted that Respondent requested the Bank to provide a declaration, but that the Bank requests at least 4 weeks to provide such a declaration. If necessary, Respondent is willing to provide such a declaration within a reasonable time frame, taking into account the Bank's request.
(i) Complainant has established its trademark rights in the ADE mark for the purposes of Policy ¶ 4(a)(i);
(ii) The disputed domain name <ade.com> is identical to Complainant’s mark;
(iii) Respondent’s business plan (Annex 2 & 3: Respondent’s business plan to offer travel services with accompanying logo) constitutes ‘demonstrable preparations’ before notice of the dispute (paragraph 4.c.i. of the policy), to use the domain name for a bona fide offering of goods and services. Respondent has thus established on the evidence that it has rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(i);
(iv) Complainant has not established on the evidence that Respondent
registered and used the disputed domain name in bad faith. In particular, the declaration in the name Amit Wasson stating that Amit Wasson has never transferred the disputed domain name to anyone does not automatically prove that Respondent registered the domain name in bad faith, unless Complainant proves Respondent was the hijacker of the disputed domain name; there is no evidence that would allow that inference to be drawn;
(v) On the evidence in general, the Panel finds that under Paragraph 4(a) of the Policy, the burden of proof is on Complainant and the standard of proof is the balance of probabilities. After considering all of the evidence, some of which is vague and inconclusive, the Panel is unable to find that the evidence establishes the probable bad faith of Respondent, especially as Respondent purportedly bought the domain name from the registrant at the time of the sale for USD 20,000; and
(vi) Complainant has not engaged in reverse domain name hijacking.
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."
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.
Complainant claims to have registered the ADE mark with the USPTO and submitted evidence of such registration (e.g. Reg. No. 1,869,307, registered Dec. 27, 1994). See Compl. Ex. 1. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has established rights in the ADE mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <ade.com> domain name is identical to Complainant’s mark as it adds the gTLD “.com” to the fully incorporated mark. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel notes that there are some panels that have considered the position to be somewhat more nuanced and that this may not be so in all cases, although even then, given the low threshold approach to assessment of confusing similarity, it has been recognised that in most cases where a domain name incorporates the entirety of a trademark, the domain name will for the purposes of the Policy be confusingly similar to the mark (see for example, the detailed discussion of this topic in Research in Motion Limited v. One Star Global LLC WIPO Case No. D2009-0227). Therefore, the Panel agrees with the position of Complainant and finds that the <ade.com> domain name is identical to the ADE mark under Policy ¶4(a)(i).
While Respondent contends that the <ade.com> domain name is comprised of a common and generic term/acronym and as such cannot be found to be identical or confusingly similar to Complainant’s mark, the Panel finds that such a determination is not necessary under Policy ¶ 4(a)(i) as this portion of the Policy considers only whether Complainant has rights in the mark and whether the disputed domain name is identical or confusingly similar to Complainant’s mark. See Precious Puppies of Florida, Inc. v. kc, FA 1028247 (Forum Aug. 10, 2007) (examining Respondent’s generic terms arguments only under Policy ¶ 4(a)(ii) and Policy ¶ 4(a)(iii) and not under Policy ¶ 4(a)(i)); see also Vitello v. Castello, FA 159460 (Forum July 1, 2003) (finding that Respondent’s disputed domain name was identical to complainant’s mark under Policy ¶ 4(a)(i), but later determining the issue of whether the disputed domain name was comprised of generic terms under Policy ¶¶ 4(a)(ii) and 4(a)(iii)).
The Panel holds that Complainant has not established a prima facie case in support of its arguments that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii). See Terminal Supply, Inc. v. HI-LINE ELECTRIC, FA 746752 (Forum Aug. 24, 2006) (holding that Complainant did not satisfactorily meet its burden and as a result found that Respondent had rights and legitimate interests in the domain name under UDRP ¶ 4(a)(ii)); see also Workshop Way, Inc. v. Harnage, FA 739879 (Forum Aug. 9, 2006) (finding that Respondent overcame Complainant’s burden by showing it was making a bona fide offering of goods or services at the disputed domain name).
Respondent argues that it chose the ADE name for its business because “ad” is short for “advertising” and the letter “e” is short for the word “effect,” making it perfect to operate a business pertaining to the effect that advertising has on vendors of camping.
Respondent also argues that it has made demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services as shown by Respondent’s business plan. A respondent may provide evidence of its demonstrable preparations to use a domain name in connection with a bona fide offering of goods or services to show it has rights and legitimate interests in that domain name. See Sony Pictures Television Inc. v Thomas, Jeff, FA 1625643 (Forum Aug. 6, 2015) (holding that “Respondent has provided evidence of his plans to use the disputed domain name and, despite Complainant’s arguments to the contrary, Respondent can take his time so long as there is no indication of bad faith.”).
Respondent submitted its business plan to offer travel services with an accompanying “ADE” logo (Annex 2 & 3) in the Response. Respondent also submitted two written declarations confirming that the business plan has been drafted before the start of the domain name procedure and that this was a genuine business plan, through its Additional Submissions of January 25, 2018 in response to the Panel’s Order.
The Panel is of the view that the “business plan” as submitted by Respondent should, in the absence of any evidence to the contrary, be deemed as a genuine business plan and thus as a ‘demonstrable preparation’ to use the domain name before notice of the dispute (paragraph 4.c.i. of the policy). As the Panel agrees that Respondent has provided sufficient evidence to support its argument, the Panel finds that it has rights and legitimate interests in the domain name per Policy ¶ 4(c)(i).
The Panel finds that Complainant failed to meet the burden of proof of bad faith registration and use under Policy ¶ 4(a)(iii). See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Forum Mar. 9, 2005) (finding that Complainant failed to establish that Respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that Respondent acted in bad faith).
Respondent avers that it did not register and use the disputed domain name in bad faith, and in fact, registered the <ade.com> domain name in good faith without intent to harm Complainant or its mark. Respondent claims that it purchased the disputed domain name for $20,000.00 from the former registrant “Amit Wasson,” an employee of Complainant, in January 2016. Further, Respondent contends that even if it did list the domain name for sale, that does not establish that it registered the disputed domain name with the requisite intent to sell it. Registering a domain name without the intent to sell it to a complainant or its competitors can refute a finding of bad faith under Policy ¶ 4(b)(i). See JCM Germany GmbH v. McClatchey Jr., D2004-0538 (WIPO Sept. 17, 2004) (holding that Respondent did not violate Policy ¶ 4(b)(i) by attempting to sell the disputed domain name for profit because Respondent did not register the domain name with the intent to sell it to Complainant or one of its competitors).
Respondent provides a copy of the email chain in which it allegedly negotiated for the purchase of the domain name, which appears to show that Respondent purchased the domain name from a person called Amit Wasson for $20,000.00. See Resp. Annex 7. Respondent also provides a screenshot of Amit Wasson’s LinkedIn social media page, which, Respondent alleges, shows that Amit was an employee of Complainant.
On the other hand, Complainant submits a declaration by the person called Amit Wasson stating to the effect that he has never transferred the disputed domain name to anyone; he has never offered or agreed to transfer the disputed domain name to anyone; he does not know nor has he ever owned or used either of the Fraudulent E-mail Accounts; in his capacity, he is not authorized to transfer and/or sell nor was he ever authorized to transfer or sell any of Complainant’s domains including the disputed domain name; he has never owned the disputed domain name; he rather was the administrator for the disputed domain name in his capacity as Program Manager-Information Security of Complainant; and as such, his name was part of the public record for the disputed domain name before it was hijacked, giving the hijacker(s) access to his name for creating a fraudulent record.
Respondent submits declarations by Niels Heiligers ("Statement A. Heiligers ADE.com.pdf") and Bo Pennings ("Statement mr. Pennings.pdf") with regard to the facts asserted in the Response and a screen dump of the bank account of Respondent that the amount of 20,000 USD has indeed been transferred to the seller of the domain name (Transaction 18-1-2016 escrow.com.pdf). It should be noted that Respondent allegedly requested its bank to provide a declaration, but that the bank requests at least 4 weeks to provide such a declaration. If necessary, Respondent is willing to provide such a declaration within reasonable time frame, taking into account the bank's request.
According to the declaration by the person called Amit Wasson, it is admitted that the genuine Amit Wasson has never transferred the disputed domain name to anyone. While it appears that Respondent acquired the disputed domain name in good faith by the fact that it paid $20,000 USD and that it ordered and received a business plan involving the disputed domain name prior to the notification of the current UDRP domain name dispute, as discussed above and as proved in the Annexes submitted in Respondent’s Additional Submission of January 25, 2018 in response to the Panel’s Order, Complainant did not provide more information or evidence on the circumstances of the change in ownership other than the declaration by the person called Amit Wasson. The Panel is of the view that the existence of the declaration by the person called Amit Wasson stating that Amit Wasson has never transferred the disputed domain name to anyone does not automatically prove the bad faith of Respondent, unless Complainant proves that Respondent was the hijacker of the disputed domain name or had active knowledge of the domain name being hijacked and there is no evidence from which such an inference can be drawn.
As the burden of proof is on Complainant to prove on the balance of probabilities that the domain name was registered and used in bad faith, the Panel finds it hard to accept that the evidence establishes the bad faith of Respondent. The evidence that Respondent paid USD 20,000 for the disputed domain name and that it was paid to the person who purported to be the registrant of the domain name at the time of the sale, tends to suggest there is no clear evidence of bad faith of Respondent. Although there is a claim of serious fraud, there remains too much vagueness and a lack of clear evidence for the Panel to accept that Respondent registered or used the domain name in bad faith.
Therefore, the Panel concludes that Complainant failed to establish the requirement under Policy ¶ 4(a)(iii).
Reverse Domain Name Hijacking
Respondent submits that Complainant has engaged in reverse domain name hijacking.
It is open on the evidence that the intention of Complainant was not to harass Respondent but to pursue what it, Complainant, understandably saw as its rights to the domain name. Complainant has also succeeded in establishing the first of the three elements under the Policy
The Panel therefore finds that Complainant has not engaged in reverse domain name hijacking. See Gallup, Inc. v. PC+s.p.r.l., FA 190461 (Forum Dec. 2, 2003) (finding no reverse domain name hijacking where complainant prevailed on the “identical/confusingly similar” prong of the Policy).
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <ade.com> domain name REMAIN WITH Respondent.
Ho Hyun Nahm, Esq. (Chair),
Mr. Bart Van Besien and
The Honorable Neil Anthony Brown QC as Panelists.
Dated: February 12, 2018
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