WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Mavenvista Technologies Pvt. Ltd. v. IT Comms, Ariba, Inc.

Case No. D2017-1130

1. The Parties

The Complainant is Mavenvista Technologies Pvt. Ltd. of Ahmedabad, India, internally represented.

The Respondent is IT Comms, Ariba, Inc. of Sunnyvale, California, United States of America.

2. The Domain Name and Registrar

The disputed domain name <futureofprocurement.com> is registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 9, 2017. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 11, 2017, the Registrar 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 16, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 6, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 7, 2017.

The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on July 13, 2017. 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.

4. Factual Background

The Complainant provides business online support services concerned with procurement, buying, selling and marketing, particularly online, including the provision of a searchable online evaluation database for buyers and sellers.

In this sphere the Complainant holds the following registered trademark:

THE FUTURE OF PROCUREMENT, Government of India Trade Marks Registry, registration date August 23, 2010, registration number 2012790, in class 35, for “providing online support for processes involved for buying and selling of goods and services providing online platform to support processes pertaining to various activities for procurement and marketing operating online market places for sellers and buyers of goods and services providing feedback and ratings of sellers goods and services providing a searchable online platform featuring the goods and services of online vendors providing a searchable online evaluation database for buyers and sellers”.

The Respondent offers a variety of business services broadly related to procurement, from buying through to payment, and the provision of software for the purpose.

The disputed domain name, according to the WhoIs, was registered on April 5, 2011 in the name of IT Comms (registrant name) and Ariba Inc (registrant organisation). The disputed domain name resolves to a page of the website “www.ariba.com” which, among other things, displays a document “Vision 2020: The Future of Procurement”, with an invitation to download the document.

5. Parties’ Contentions

A. Complainant

The Complainant asserts rights in the trademark THE FUTURE OF PROCUREMENT, as detailed in section 4 above, and has produced a copy of the document of registration issued by the Government of India, Trade Marks Registry, showing the date of registration August 23, 2010. The Complainant says that it has statutory rights in its trademark and also common law rights as the first in the world to use it. The Complainant says it has been using its trademark since September 15, 2006 but at the time of registration inadvertently claimed use since June 1, 2010. The Complainant says an application to amend this detail of the trademark registration is pending and has produced a copy of the documentation. As evidence of the earlier date of usage of THE FUTURE OF PROCUREMENT the Complainant has produced copies of two documents under its earlier company name Ebiz Chem Pvt. Ltd. One is an email to a client dated September 15, 2006, the other is a screen capture of its website “www.vend-x.com” retrieved through the Wayback machine (“www.archive.org”) on May 10, 2006, both referring to “VENDX The Future of Procurement”.

The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark. There is no difference between the trademark and the disputed domain name except for the omission of the word “the” from the disputed domain name, which is an irrelevant and minor difference.

The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not connected with the Complainant in any way. The Complainant has not granted the Respondent any permission to use the Complainant’s trademark or to incorporate it into any domain name. The Complainant’s rights in its trademark predate the registration of the disputed domain name by about 5 years. The Respondent, being in a similar line of business, must have known this.

The Complainant says the Respondent’s use of the disputed domain name cannot be bona fide because it appears to divert online consumers misleadingly. The Respondent is not commonly known by the disputed domain name but as Ariba, Inc. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name without intent to divert Internet users for commercial gain.

The Complainant further contends that the disputed domain name was registered and is being used in bad faith. The disputed domain name was registered on April 5, 2011 and the Complainant’s trademark had been in use since September 15, 2006.

The Complainant contends that the disputed domain name was registered primarily for the purpose of disrupting the business of the Complainant, who is a competitor of the Respondent. Furthermore the Respondent has intentionally attempted to attract Internet users to the Respondent’s online location for commercial gain by creating a likelihood of confusion with the Complainant’s trademark.

The Complainant has cited a number of previous decisions under the Policy that it considers to be supportive of its case.

The Complainant requests the transfer of the disputed domain name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable dispute-resolution provider, in compliance with the Rules, that:

“(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

(iii) your domain name has been registered and is being used in bad faith”.

The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute.

A. Identical or Confusingly Similar

The Panel is satisfied by the copy of the registration certificate produced in evidence that the Complainant has rights in the trademark THE FUTURE OF PROCUREMENT as required for the purposes of paragraph 4(a)(i) of the Policy.

Disregarding the generic Top-Level Domain (gTLD) designation “.com”, the disputed domain name <futureofprocurement.com> is found to differ from the Complainant’s trademark only by the omission of the word “the”, which in the circumstances of this case, the Panel finds to be an inconsequential difference; and by the omission of punctuation spaces, which cannot be accommodated in a domain name. Accordingly the Panel finds the disputed domain name to be confusingly similar to the Complainant’s trademark and therefore finds for the Complainant under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has asserted prima facie that the Respondent has no rights or legitimate interests in respect of the disputed domain name, is not a licensee of the Complainant and has not been authorised to use the Complainant’s trademarks.

Paragraph 4(c) of the Policy provides for the Respondent to contest the Complainant’s prima facie case under paragraph 4(a)(ii) of the Policy and to establish rights or legitimate interests in a disputed domain name by demonstrating, without limitation:

“(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 has not replied. According to the WhoIs information, the disputed domain name was registered by the Respondent on April 5, 2011, being 7 months after the Complainant’s trademark was granted registration on August 23, 2010. It is not necessary to probe the Complainant’s claim of common law rights in its trademark dating back to September 15, 2006. The Complainant’s evidence, uncontested, shows the disputed domain name to have resolved to the Respondent’s website “www.ariba.com”, which refers to business services similar to the Complainant’s and displays prominently the document “Vision 2020: The Future of Procurement”, which is available for download. The Panel is satisfied that the use of the disputed domain name, irrespective of its redirection by the Respondent, is not a bona fide use within the meaning of paragraph 4(c)(i) of the Policy, because business intended to be channelled through the disputed domain name would rely upon the latter’s emulation of the Complainant’s trademark.

There is no evidence that the Respondent, evidently known as Ariba, Inc., has ever been commonly known by the disputed domain name as an individual or business. The website to which the disputed domain name resolves is clearly commercial in nature.

Accordingly the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name and finds for the Complainant under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Complainant must prove under paragraph 4(a)(iii) of the Policy that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:

“(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

(ii) you have 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 you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; 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 website or location or of a product or service on your website or location”.

The provisions of paragraph 4(b) of the Policy are without limitation and bad faith may be found alternatively by the Panel.

The website to which the disputed domain name ultimately resolves, according to the evidence, shows that the Respondent’s business overlaps broadly with the Complainant’s business in the field of procurement services. The Respondent evidently has its own website for the purpose of its business located at “www.ariba.com”. Although the point is not decisive, the Panel notes that a screen capture of one of the Respondent’s website pages gives the telephone number for “Sales Enquiries” prefaced with an Indian (+91) country code, India being the domicile of the Complainant. Internet visitors to the disputed domain name have been redirected automatically and without option to the Respondent’s website “www.ariba.com”. On the evidence, and on the balance of probabilities, the Respondent is found to be relying upon the attractions of the phrase “future of procurement” incorporated into the disputed domain name in order to attract Internet visitors, whereas that phrase is effectively indistinguishable from the Complainant’s previously registered trademark. There can be no realistic doubt that the Respondent is in business for commercial gain and is a direct competitor of the Complainant.

The Panel finds the disputed domain name to have been used in bad faith with intent to create a likelihood of confusion with the Complainant’s trademark for commercial gain in the terms of paragraph 4(b)(iv) of the Policy. The Panel further finds, on balance, that the disputed domain name was registered for the bad faith purpose for which it has been used. Accordingly, on the evidence and on the balance of probabilities, the Panel is satisfied that the Complainant has proven the registration and use of the disputed domain name in bad faith in the terms of paragraph 4(a)(iii) of the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <futureofprocurement.com> be transferred to the Complainant.

Dr. Clive N.A. Trotman
Sole Panelist
Date: July 19, 2017