The Complainant is Juicy Details B.V. of Rotterdam, The Netherlands, represented by Merkwerk Utrecht B.V., The Netherlands.
The Respondent is Another.com of London, United Kingdom of Great Britain and Northern Ireland.
The disputed Domain Name <juicydetails.com> is registered with Tucows Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 20, 2010. On May 20, 2010, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the Domain Name. On May 20, 2010, Tucows Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 28, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 17, 2010. On June 14, 2010, the Center received an email communication from the Respondent and acknowledged receipt of same on the same day. On June 18, 2010, having not received any formal response from the Respondent, the Center notified the Respondent's default. On June 23, 2010, the Respondent filed a Response. The Center acknowledged receipt of the Response on June 24, 2010 and informed the parties that the Response would be forwarded to the Panel which shall have the sole discretion whether to consider it.
The Center appointed W. Scott Blackmer as the sole panelist in this matter on June 25, 2010. The Panel finds that it was properly constituted. The 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.
The Complainant is a Dutch company established in 2002 that franchises and supplies “juice bars” selling health drinks made of fruit juices. The Complainant operates a website in both Dutch and English using the domain name <juicydetails.nl>, which was registered on March 5, 2002. According to the website, the Complainant currently operates juice bars in the Netherlands and is seeking franchisees “in several European countries.”
The Complainant holds the following registered trademarks:
|
MARK |
JURISDICTION |
REGISTRATION NUMBER |
REGISTRATION DATE |
|
JUICY DETAILS |
Benelux |
705486 |
March 1, 2002 (application and preliminary registration) |
|
JUICY DETAILS |
Community Trade Mark (European Union) |
6777049 |
January 20, 2009 |
|
JUICY DETAILS |
International Registration (Australia, Germany, Russia, Spain, Switzerland, United States) |
919808 |
March 28, 2007 |
|
JUICY DETAILS DAILY FRESH KICKS (figurative) |
Community Trade Mark (EU) |
6777981 |
January 20, 2009 |
The Response and the Respondent's website at “www.another.com” do not indicate whether the Respondent is a legal entity or a trade name, although it is identified as “part of the UK2 Group”. UK2 Group is an ICANN accredited domain name registrar located in the United Kingdom. It is characterized on its website at “www.uk2group.com” as “a global group of web hosting brands” as well as a registrar. The Respondent's website at “www.another.com” advertises domain name registration (in several generic top-level domains and in “.uk” domains) and web hosting services. As with the websites operated by the UK2 Group, the Respondent's website is in the English language and quotes prices in British pounds.
The Respondent registered the Domain Name on May 1, 2002. From screen shots, the Internet Archives, and correspondence between the parties, it appears that the Domain Name has never been used for anything other than a landing page with pay-per-click advertising links. The Domain Name does not currently resolve to an active website.
A representative of the Complainant sent to the Respondent a cease-and-desist letter by email in March 2007, after learning of the Domain Name. The Respondent replied that the Domain Name was associated only with a “holding page” on which Google automatically served advertising links, as was the practice with other undeveloped domain names owned by the Respondent, and displayed no content likely to cause confusion with the Complainant. The Respondent said that its domain names “are generally in use for email and other services via Another.com”, adding that the Respondent also sold domain names for prices starting from GBP 4000 and asking if the Complainant was interested in purchasing the Domain Name.
In February 2010, the Complainant's representative communicated again with the Respondent demanding the transfer of the Domain Name. The Respondent did not reply, and this proceeding followed.
The Complainant asserts that the Domain Name is identical to its registered JUICY DETAILS mark and that the Respondent has no rights or legitimate interests in the Domain Name.
The Complainant infers bad faith in the registration of the Domain Name shortly after the Complainant applied for trademark registration and a related domain name, as well as in the use of the Domain Name for a pay-per-click advertising website and the Respondent's subsequent offer to sell the Domain Name to the Complainant for an amount in excess of normal out-of-pocket costs.
The Respondent argues that it acquired the Domain Name for legitimate business purposes and without knowledge of the Complainant or its mark.
Paragraph 4(a) of the Policy provides that in order to divest a Respondent of a disputed domain name, a Complainant must demonstrate each of the following:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
Under paragraph 15(a) of the Rules:
“A Panel shall 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 deadline for the Response was June 17, 2010. The Center received an email from the Respondent on June 14, 2010 asking for “details” of the Complaint. The Center pointed out in reply that all necessary information (including the Complaint and its annexes) was attached to the Notification of Complaint that the Center emailed to the Respondent's registered contact address on May 28, 2010. The Respondent ultimately submitted a formal Response on June 23, 2010, six days after it was due, with a cover email stating that the reason for the delay was that “the original complaint details were not provided until June 14, 2010.” In the body of the Response, the Respondent said that it received the Notification of Complaint on June 3, 2010.
The record includes a copy of the May 28, 2010 email from the Center to the Respondent at the Administrative Contact email address listed in the Domain Name registration, attaching the Notification of Complaint and the Complaint and annexes. The Respondent did not supply evidence supporting its statements that it received the Notification of Complaint only on June 3, 2010, and the Complaint and annexes on June 14, 2010. The Center's email was addressed (and delivered, according to a Microsoft Exchange status message) to the email address “hostmaster@uk2.net”, which is the address listed for the Administrative Contact on the Domain Name registration, as reflected in the registrar's WhoIs database. UK2.net is shown as the registration service provider for the Domain Name, and the Respondent's website at “www.another.com” indicates that the Respondent is “part of the UK2 Group”.
If there was a delay in transmitting the Complaint and annexes from the registration service provider to the Respondent, which the Respondent has not established, this is not a delay for which the Complainant or the Center is responsible, and it does not appear to result from circumstances beyond the Respondent's control. The Respondent chose to give the affiliated registration service provider's email address as the contact address in registering the Domain Name.
The Policy and Rules are designed to achieve a speedy and inexpensive resolution of domain name disputes. The Rules, paragraph 10(c), direct the Panel to “ensure that the administrative proceeding takes place with due expedition,” although the Panel is also empowered to extend any period of time fixed by the Rules “in exceptional cases.”
In the circumstances of this proceeding, the Panel finds such an extension appropriate, not because the Respondent has demonstrated exceptional hardship (it has not) but because the delay was brief and there is no indication of significant prejudice to the Complainant. The Complainant sent a cease-and-desist letter to the Respondent five years after the Domain Name was registered and then waited another three years before initiating this proceeding. After years of tolerating the Respondent's ownership of the parked Domain Name, the Complainant could not credibly in this Panel's view object to a six-day delay for the Response, and the Complainant has not done so.
Accordingly, the Panel accepts the late-filed Response as part of the record in this proceeding.
The Domain Name is identical to the Complainant's registered JUICY DETAILS mark, disregarding the “www” prefix and “.com” suffix that are necessary elements of the URL address and not distinctive for trademark or Policy purposes.
The Panel finds, therefore, that the first element of the Complaint is established.
The Policy, paragraph 4(c), provides a non-exhaustive list of circumstances in which the Respondent could demonstrate rights or legitimate interests in the Domain Names, including the following:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The Respondent states that it acquired the Domain Name to offer it for sale in connection with a vanity email service. It is not necessary for the Panel to decide whether this purpose represents a legitimate interest, however, given the Panel's conclusions below on the element of bad faith.
The Policy, paragraph 4(b), provides a non-exclusive list of circumstances indicating bad faith, including these:
“(i) circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product or service on your web site or location.”
The Policy requires the Complainant to establish bad faith in both the “registration” and “use” of the Domain Name. The Complainant infers “opportunistic bad faith” on the part of the Respondent in registering the Domain Name and allowing it to be used for a pay-per-click advertising landing page:
“respondent must have had actual knowledge of the trademarks given the fact that the domain is registered on May 1, 2002 (Annex 1) shortly after the Benelux trademark application on March 1, 2002 (Annex 10) and the registration of the domain “www.juicydetails.nl” on March 5, 2002 (Annex 14).”
According to the Complaint,
“Respondent was aware of the commercial activities of complainant or should have been aware of it in view of the long period of time that complainant had already registered and used the brand name JUICE [sic] DETAILS.”
The Panel finds these assertions mystifying. From the record in this proceeding, it appears that the Complainant, a Dutch company, was only established in 2002 and operated only in the Netherlands. It applied for a Benelux trademark registration in March 2002 and did not obtain a Community Trade Mark until January 2009. The Complainant registered a domain name based on its JUICY DETAILS mark in the “.nl” country domain in March 2002, but the Complainant does not indicate when it launched a commercial website associated with that domain name. The Internet Archive's Wayback Machine displays no archived copies of a website associated with the Complainant's domain name until 2003, when the page simply displayed a message in Dutch to the effect that a website would appear “shortly”. There is no evidence in the record that the Complainant operated or advertised in the United Kingdom, where the Respondent is located, in 2002. Thus, it is not clear how the Respondent would have been aware of the Complainant's mark in May 2002, when it registered the Domain Name in the United Kingdom, unless it examined the records of Benelux trademark applications. The Panel does not read the Policy as requiring such an investigation.
The Respondent denies prior knowledge of the Complainant or its mark, and this is plausible in the circumstances. Moreover, the mark consists of two English dictionary words, commonly used as a phrase to denote gossip or titillating information. The Respondent states that it purchased the Domain Name in furtherance of one of its domain-related businesses, “to offer a vanity email service built around words that would be perceived by customers as an amusing identifier”. Since the Respondent is English and offers a variety of domain name services, this proposed use of the Domain Name is credible. On the available record, it is a more likely explanation for the Respondent's motivation than the improbable theory that the Respondent was aware of the Complainant's new mark in May 2002 and sought to exploit it. Leaving the Domain Name parked at a pay-per-click advertising page is not a bad-faith use unless it can reasonably be inferred, as it cannot be on this record, that the Respondent was aware of the Complainant's mark and its value in attracting Internet users for commercial gain.
Moreover, the Complainant's argument that the Respondent displayed bad faith in offering to sell the Domain Name to the Complainant for a price in excess of out-of-pocket costs is unpersuasive. The Respondent cannot be said to have acquired the Domain Name for that purpose, when the evidence indicates that the Respondent was probably unaware of the Complainant at the time it registered the Domain Name and did not offer to sell the Domain Name until it was approached by the Complainant five years later.
The Panel concludes that the third element of the Complaint, bad faith, has not been established.
For all the foregoing reasons, the Complaint is denied.
W. Scott Blackmer
Sole Panelist
Dated: July 15, 2010