WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Travel Designer India Private Limited v. Michael King

Case No. D2021-3862

1. The Parties

The Complainant is Travel Designer India Private Limited, India, represented by PANDA Law, India.

The Respondent is Michael King, Canada, represented by Andrews Robichaud P.C., Canada.

2. The Domain Name and Registrar

The disputed domain name <rez.live> is registered with Go France Domains, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 18, 2021. On November 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 19, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 23, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 26, 2021.

The Center verified that the Complaint together with the amended 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 December 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 23, 2021, and was extended to December 27, 2021. The Respondent submitted a Response on December 24, 2021. On January 8, 2022, the Complainant’s original representative intimated to the Center that it had delayed its response to the Center’s request for panel candidates due to the resurgence of COVID-19 in India. On January 20, 2022, the Complainant’s original representative intimated to the Center that it was withdrawing from acting on the basis of an apparent conflict of interest. On January 29, 2022, the Complainant’s current representative intimated to the Center that it had been appointed and that it “reserved the right” to make a supplemental filing in the administrative proceeding. On March 15, 2022, the Complainant’s representative filed a document with the Center seeking permission to make a supplemental filing. On March 16, 2022, the Respondent’s representative filed a document with the Center opposing the Complainant’s request to make a supplemental filing. These latter two documents will be discussed below. On March 16, 2022, the Complainant’s representative sent an email to the Center taking issue with the Respondent’s opposition to its request to make a supplemental filing.

The Center appointed Andrew D. S. Lothian, Michele A.R. Bernasconi and Daniel R. Bereskin, C.M., Q.C. as panelists in this matter on March 14, 2022. The Panel finds that it was properly constituted. Each member of 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 is a private company incorporated under the laws of India, with its registered office in Ahmedabad, India. According to the Complainant, it is one of the leading travel organizations in the world, operating as a global wholesaler of hotels, sightseeing, and transfer worldwide.

The Complainant is the registrant of the domain name <rezlive.com>, which it registered on July 3, 2007 and which is used for an online travel solutions website at “www.rezlive.com”. Said website lists various industry awards which the Complainant has received from 2011 to 2020, noting that there is at least one award listed for every year and in most cases multiple awards in each year. The Complainant maintains various other online service offerings in addition to said website. The Complainant says that it launched the website at “www.rezlive.com” in beta in 2007, after which it opened an office in Dubai in 2011, followed by offices in Kuwait, Bangladesh, Jordan, and Pakistan in 2012, Saudi Arabia and Mauritius in 2013, Romania, Algeria, and Thailand in 2015, and Malaysia and Indonesia in 2018.

The Complainant is the owner of a device mark featuring the text “rezlive.com®” beneath which are the words “award winning global reservation system”. The elements “rez” and “.com” are colored orange, “live” and “®” are colored blue, apart from the dot on the letter “I” which is colored orange, and the wording beneath is colored grey or black. Said mark has been registered as a trademark in a variety of territories, the earliest of which appears to be Indian Registered Trademark No. 3192128, registered with effect from February 22, 2016 in Class 9. Although not cited by the Complainant, the Panel notes for completeness that it has identified that the Complainant possesses earlier registered trademark rights in India, for example, Indian Registered Trademark No. 1626544 for a device mark featuring a stylized representation of the words “rezlive RezLive.com” where “rez” is in orange and “live” is in blue, underneath which is the text “RezLive.com” in black, registered on November 30, 2007 in Class 16.¹ The existence of such earlier rights is not regarded by the Panel as being material to the outcome of the administrative proceeding.

The disputed domain name was registered on October 28, 2015 and at present the URL “www.rez.live” does not resolve to any website, although the subdomain “prod.rez.live” does resolve to a website of a functional nature headed “Production Control” that lists local area network Internet protocol addresses for various other subdomains, also of the disputed domain name. These subdomains are stated to be associated with Internet resources which appear to be of a professional audiovisual nature, including “audio”, “GFX”, and “VTR”. Other broadcast-related resources are also provided, including talkback control and green room links.

The Respondent is an individual with an address in Ontario, Canada. The Respondent is the director and operating mind behind REZ Network Inc., a Canadian corporation incorporated on July 1, 2015, which specializes in providing live and pre-recorded broadcasting services. Although the disputed domain name is held in the Respondent’s personal name, the Respondent asserts that its registration and use is inextricably linked to said corporation. The Respondent’s said corporation is the owner of Canadian Trademark Registration No. TMA1044532 for the word mark REZ, filed on July 29, 2015 and registered on July 25, 2019, in respect of computer hardware, broadcasting equipment and online entertainment services including live streaming and pre-recorded streaming of animation and cinematography.

5. Parties’ Contentions

A. Complainant

In summary, the Complainant contends as follows:

Identical or confusingly similar

The disputed domain name is more likely to be understood as a reference to the Complainant’s business under its registered trademark. The Complainant’s mark is overwhelmingly associated with its business and is recognized accordingly. The disputed domain name incorporates in full the words “rezlive” which is an essential part of the Complainant’s trademark.

Rights or legitimate interests

The Respondent has restrained the Complainant from exercising its legitimate right of registering a domain name incorporating its trademark. This amounts to domain name squatting and the Respondent cannot be said to be making a legitimate noncommercial or fair use of the disputed domain name. The Complainant is the sole owner of the mark REZLIVE.COM. The Complainant has not licensed or otherwise permitted the Respondent to use said trademark or any essential part of it, nor to apply for a domain name incorporating it. The Respondent has registered the disputed domain name in order to resell it and has no intention of making use of it for any purpose. There is no plausible explanation for the use of the disputed domain name other than the Respondent’s intent to make unlawful gains by riding upon the Complainant’s goodwill.

There is a general proposition established in a previous case under the Policy that the Respondent has no rights or legitimate interests in a domain name which is inactive after purchase.

Registered and used in bad faith

The Respondent is well aware of the substantial worldwide reputation and goodwill associated with the Complainant’s trademark. The disputed domain name hosts no website. The Respondent may try to sell the disputed domain name to the Complainant or another party at an exorbitant price, or may publish objectionable material on the associated website. The Complainant’s trademark is consistently protected by adjudicating forums against misuse.

B. Respondent

In summary, the Respondent contends as follows:

Identical or confusingly similar

The Respondent neither disputes nor confirms the Complainant’s alleged trademark rights and had no knowledge of the Complainant until the administrative proceeding was initiated. The Complainant does not assert that it possesses any Canadian trademark rights in the Complaint, and a search of the related database discloses no pending applications or registrations in the Complainant’s name.

Rights or legitimate interests

The Respondent has significant registered trademark rights and legitimate business interests in respect of the disputed domain name. REZ Network Inc. is the owner of the Canadian trademark described in the factual background section. Said mark confers exclusive rights upon the Respondent’s company to use the REZ mark throughout all of Canada, which right should be sufficient to decide the Complaint in the Respondent’s favor. In the disputed domain name, the use of the element “live” refers to the live broadcasting services offered by the Respondent through its company, adopted with no knowledge of the Complainant’s existence. Use of the Top-Level Domain “.live” in the context of live broadcasting services represents a legitimately obtained and used trademark covering goods and services connected to this meaning.

The Respondent’s company provides live and pre-recorded broadcasting services. Most of the Respondent’s customers are obtained through in-person meeting or word of mouth, so the Respondent has no strong need to create or maintain a general information website. The Respondent provides access to its services through the subdomain “prod.rez.live”, through which customers access the Respondent’s broadcasting software, which can be accessed publicly (screenshots provided). Several other subdomains of the disputed domain name are also used in connection with such services (eight examples provided). Example production notes for a recent broadcast dating from October 2021 are also produced, showing that the systems for the Director, Producer, and conferencing server all make use of the disputed domain name. A screenshot of the talkback controller is also produced, which references subdomains of the disputed domain name.

The Respondent’s business is fundamentally tied to the disputed domain name and if transfer were ordered this would represent a significant economic disruption to the Respondent’s legitimate business interests.

The Respondent has demonstrated a clear chain of events prior to the notice of the dispute establishing the incorporation of a business; the application for a trademark; the subsequent purchase of the disputed domain name; and the use of the disputed domain name in a manner consistent with the filed trademark application (and subsequent registration). The Respondent’s company is known as REZ Network Inc. and uses and has registered the trademark REZ as an identifier of source for the business. It is, accordingly, commonly known by the disputed domain name. The Respondent’s use of the disputed domain name represents fair use in conjunction with the Respondent’s broadcasting services which do not overlap with the travel services of the Complainant in any manner, including channels of trade and geographic origin of the respective parties’ customers. Nor is the Respondent using the disputed domain name in a manner which would misleadingly divert consumers or to tarnish any alleged trademark rights of the Complainant.

Registered and used in bad faith

The Respondent had no knowledge of the Complainant when the disputed domain name was registered. The Parties are on opposite sides of the world in completely different industries, namely travel and broadcasting. There is no overlap in customers or likely customers and no reasonable grounds that the Respondent should have been aware of the Complainant’s operations in any manner when the disputed domain name was registered.

The Complainant’s allegations of bad faith are baseless and matters of speculation made solely because the disputed domain name does not have an active website on it. However, the disputed domain name is being used to provide the Respondent’s services and there is no requirement for the Respondent to place any public notification that the disputed domain name is in use. The Respondent filed for its trademark shortly after incorporation and well before the Respondent registered the disputed domain name. A clear inference of good faith intent can be derived from this timeline and nothing in it suggests that the Respondent acted in bad faith.

At no time did the Complainant ever reach out to the Respondent to ask about the use of the disputed domain name. The Respondent has received multiple offers to sell the disputed domain name which it declines due to the importance of the disputed domain name to its business operations. Ultimately, the Respondent has begun to ignore such offers. Evidence that a respondent has declined offers to sell a domain name have been held sufficient to demonstrate that it did not register such domain name with the intent of transferring it to the Complainant or a competitor thereof for profit.

6. Discussion and Findings

To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:

(i) the disputed 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 disputed domain name; and

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

A. Preliminary Matter – Complainant’s request for supplemental filing and Respondent’s objection thereto.

As noted in the procedural history above, the Complainant made a request for permission to file a supplemental filing on March 15, 2022 by way of a document which it filed with the Center, having previously stated that it “reserved the right” to make a supplemental filing on January 29, 2022. The Complainant’s request was opposed by the Respondent in a document which it filed on March 16, 2022. Arguably, each of these documents are themselves supplemental filings rather than mere requests for permission to submit supplemental filings. They are both of a reasonably substantial nature, based upon their length of several pages each.

The Rules do not expressly allow for the submission of unsolicited filings. Paragraph 12 of the Rules notes that it is for the panel to request, in its sole discretion, any further statements or documents from the parties it may deem necessary to decide the case. Paragraph 10(c) of the Rules inter alia requires the Panel to ensure that the administrative proceeding takes place with due expedition.

Section 4.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states inter alia “Unsolicited supplemental filings are generally discouraged, unless specifically requested by the panel…. [P]anels have repeatedly affirmed that the party submitting or requesting to submit an unsolicited supplemental filing should clearly show its relevance to the case and why it was unable to provide the information contained therein in its complaint or response. Depending on the content of any admitted supplemental filing, the panel may issue further instructions to the parties, including a rebuttal/reply opportunity to the non-initiating party.”

The Panel determined that it would consider the Complainant’s request to file a supplemental filing and the Respondent’s reply thereto in order to reach a determination as to whether further filings should be allowed in the administrative proceeding. Taking the Complainant’s request first, in summary this states that the following information was revealed to the Complainant in the Response, namely that the Respondent is a resident of Canada, a director of a Canadian company, the owner of a registered trademark, was providing broadcasting services via subdomains of the disputed domain name, was broadcasting Zoom meetings on the disputed domain name for clients, and has received multiple offers to sell the disputed domain name (which it has declined). In light of said revelations, the Complainant wished to make a supplemental filing relating to certain “findings” which it had made, namely in summary, (1) that the Respondent had made no primary use of the disputed domain name since its creation, (2) that the Respondent’s subdomain “prod.rez.live” is in use but that there is no primary website in operation on the disputed domain name, (3) that the Respondent showed no use of the said subdomain prior to October 2021, (4) that the Respondent provided no specification of when it began to use said subdomain, (5) that the Respondent has purchased 130 domain names of which 43 are for “rez” with different generic Top-Level Domains, (6) that none of said “rez” domain names has an active website associated with them, and (7) that the “Wayback Machine” shows that the disputed domain name was parked by the Registrar on August 28, 2019 with a link to enquire about purchasing it.

The Respondent’s opposition to the Complainant’s said request focused on the Complainant’s delay in making it, the allegation that no relevant issues were raised in it which would fundamentally alter the submissions already on the record, and that the request contained incorrect assumptions presented as facts, such as an assumption that the Respondent’s company is a “one man company” when it has allegedly had, at times, up to six employees.

In response to the Respondent’s said opposition, the Complainant issued a further email dated March 16, 2022 in which it indicated that it denied all of the Respondent’s submissions, asserted that there had been no delay (arguing that a request could only have been made once the Panel was appointed), that the Respondent would not be prejudiced by any further delay, that adjudication in the absence of the complete facts would prejudice the Complainant, and that the Complainant agreed to the Respondent being granted time to respond to the Complainant’s supplemental filing.

The Panel rejects the Complainant’s request to make a supplemental filing on the following basis: The request document’s listed “findings” are either matters which, even if proved to the Panel’s satisfaction, would not be of any significance to the merits (items 1, 2, 3, and 4), or are matters which should have been investigated once the Respondent’s identity was revealed and before the amended Complaint was filed (items 5, 6, and 7). In any event, the Panel doubts that the matters disclosed in items 5, 6, and 7 would have affected the merits even if they had been included at the appropriate stage in the proceeding. The Panel does not consider that the Complainant is substantially prejudiced by its decision not to consider a detailed submission on these additional matters.

Turning to the question of the Complainant’s delay in this matter, a detailed timeline prepared by the Panel of the communications made to the Center on the Complainant’s behalf shows that the initial part of the delay, between the filing of the Response and the appointment of the Complainant’s new representative, covers the period from December 24, 2021 to January 29, 2022. The reasons given by the Complainant’s original representative for that delay is, first, the increase in COVID cases which caused said representative to become short-staffed, and, secondly, the discovery of the alleged conflict of interest which caused said original representative’s withdrawal. On January 29, 2022, the Complainant’s newly appointed representative intimated that it “reserves the right” to make a supplemental filing on the appointment of the Panel. This suggests to the Panel that the Complainant had such a filing in contemplation as early as late January 2022. Nevertheless, the Complainant chose to wait until the Panel’s appointment on March 14, 2022 in order to file the request currently under consideration, when it could instead have made its supplemental filing immediately, which would have triggered a reply from the Respondent. Both of those documents would then have been awaiting the Panel’s consideration upon its appointment. Notably, the Complainant’s request does not contain any reasonable explanation for the additional delay, other than to state that it could not have asked the Panel’s permission until it had been appointed.

The Panel considers that the delay surrounding the increase in COVID where the Complainant is based is excusable and constitutes exceptional circumstances, as does the discovery of the original representative’s alleged conflict of interest. However, the Complainant’s newly appointed representative would have been aware of these delays and the fact that, in terms of the Rules, the Panel is directed to proceed with due expedition upon its appointment, such that any further delays that might be caused by the Complainant should be minimized or avoided as far as possible. In these circumstances, the Panel notes that the Complainant’s delay of just under a month and a half in making a supplemental filing for the Panel’s consideration is a factor in its decision to refuse permission. Nevertheless, the Panel’s primary consideration in this procedural aspect is the fact that, as noted above, the Panel does not consider that the matters described in the Complainant’s request would have any material effect upon its deliberations in the circumstances of this particular case.

Accordingly, the Panel declines the Complainant’s request to make a supplemental filing and will proceed to a Decision on the existing record.

B. Identical or Confusingly Similar

The first element inquiry under the Policy is conducted in two steps. First, the Complainant must demonstrate that it has UDRP-relevant rights in a trademark, whether registered or unregistered. Secondly, the disputed domain name is compared to any such trademark, typically in a straightforward side-by-side manner intended to identify whether the latter is recognizable in the former, usually disregarding the Top-Level Domain (“TLD”) (in this case “.live”) as being required for technical reasons only. However, where the applicable TLD and the second-level portion of the domain name in combination contain the relevant trademark, panels may consider the domain name in its entirety for purposes of assessing confusing similarity (see section 1.11.3 of the WIPO Overview 3.0).

In the present case, the Panel notes that the mark put forward by the Complainant is figurative in nature and contains both design and word elements. Design elements are typically disregarded for the purpose of assessing identity or confusing similarity under the Policy. However, where the design elements comprise the dominant portion of the relevant mark, such that they effectively overtake the textual elements in prominence, the trademark registration may be held to be insufficient by itself to support standing under the Policy (see section 1.10 of the WIPO Overview 3.0). In the present case, however, the design merely constitutes a stylized representation of the words contained within it, and the Panel is satisfied that the word elements are capable of being separated from the design element.

Accordingly, the Panel is left with the words “rezlive.com award winning global reservation system” for comparison with the disputed domain name. The Panel notes that the “rezlive.com” element of the Complainant’s mark appears to be its primary focus, given that it comes first, while the words “award winning global reservation system” come second and are descriptive in nature. The first portion of the mark is evidently intended to reflect the Complainant’s domain name <rezlive.com>. The disputed domain name, when considered inclusive of its TLD, reproduces the Second-Level Domain of that particular domain name (and first, dominant portion of the relevant mark) exactly, merely inserting a dot between the “rez” and “live” elements. However, it could not be said that the applicable TLD and the second-level portion of the domain name in combination contain the relevant trademark as a whole, as they only match the initial (albeit arguably dominant) portion. Nor could it be said that the mark as a whole is recognizable in the disputed domain name. Nevertheless, it is arguable that a dominant feature of the relevant mark is so recognizable, a feature which might point in the direction of a finding of confusing similarity (see section 1.7 of the WIPO Overview 3.0).

In any event, the Panel does not require to reach a conclusion on this element given that the Panel’s determination of the third element under the Policy is dispositive of the Complaint.

C. Rights or Legitimate Interests

The requirements of paragraph 4(a) of the Policy are conjunctive. A consequence of this is that failure on the part of a complainant to demonstrate one element of the Policy will result in failure of the complaint in its entirety. As noted above, the Panel’s determination on the third element analysis is dispositive of the Complaint. Accordingly, it is unnecessary for the Panel to address the issue of the Respondent’s rights or legitimate interests in the disputed domain name.

D. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides four, non-exclusive, circumstances that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:

“(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 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 your web site or location or of a product or service on your website or location.”

It is an essential requirement of the third element of the Policy that both registration in bad faith and use in bad faith must be proved by the Complainant on the balance of probabilities. In respect of registration in bad faith, the Complainant in effect must show that the Respondent somehow had the Complainant’s rights in mind when it registered the disputed domain name and that it proceeded with bad faith intent to target such rights.

In the present case, the Panel finds that the Complainant has failed to prove that the disputed domain name was registered in the knowledge of its rights and moreover with intent to target it. It is important to note that the key feature of the Complainant’s trademark, “rez”, may act as a form of abbreviation that can mean different things and is not exclusively referable to the Complainant. The Complainant is in the global hotel wholesale business, such that “rez” may reference booking reservations. In that sense, it has something of a descriptive quality. To others, “rez” may reference the French phrase “rez-de-chaussée”, meaning the ground or first floor of a building.

In the case of the Respondent, it is not entirely clear why it chose to name its business “REZ Network Inc.” although it may simply have selected this as a convenient, pronounceable combination of three letters or otherwise to reference a “resource”, as in the various broadcasting resources that the Respondent appears to deploy from the disputed domain name. In any event, it could not be said on the balance of probabilities that the Respondent’s selection of this component of its business name, of its trademark, and of the disputed domain name arises because the Respondent was probably aware of and was seeking to target the Complainant. In terms of the Respondent’s likely knowledge of the Complainant, it should be noted that the Complainant’s trademark does not extend to Canada and that the Complainant’s main focus appears to be the Middle East and Asia. The Complainant’s business is a B2B wholesaler of travel services. While its website may be prominent within its own field, and it has been trading since 2007 and winning awards within its industry since 2011, the Parties are in different lines of business. Accordingly, the Panel is not satisfied that the Complainant has demonstrated that it is more probable than not that the Complainant or its rights would have come to the attention of the Respondent before it registered the disputed domain name.

The Response shows a timeline consistent with the Respondent’s case that, unaware of the Complainant or its mark, the Respondent selected a name for its broadcasting business, incorporated a company, applied for and was granted a trademark registration for the word mark REZ in connection with the business and began to trade under that name. The disputed domain name, being in the TLD “.live”, appears to have been selected by the Respondent for use in connection with its live broadcasting services. An example of these services in action has been supplied with the Response, namely detailed production notes for a client production in October 2021 showing the full schedule of the event, including various resources. These feature the disputed domain name being used for talkback, together with other live production features. At least 12 people are named as being involved on the production team, including the Respondent itself. Notably, among the production notes, is a reference to what appears to be a third party broadcasting resource which has also adopted a domain name with the TLD “.live”, suggesting that the choice of this particular TLD may not be atypical in the Respondent’s industry. In short, the evidence before the Panel as to the nature of the Respondent’s operations is too substantial to be dismissed as merely pretextual or a smokescreen for cybersquatting activities. Furthermore, the Panel has not identified any link between the Parties’ respective lines of business whereby it could be reasonably suggested the Respondent might be seeking to obtain an unfair commercial advantage from any alleged association with the Complainant or its trademark.

Reviewing the Complainant’s submissions on this topic, there is nothing before the Panel to indicate that the Respondent was or ought to have been “well aware” of a substantial worldwide reputation and goodwill associated with the Complainant’s trademark, as the Complainant puts it, when the Respondent registered the disputed domain name. There is no particular significance in the fact that the disputed domain name is not configured to host a corporate website. It is clear to the Panel that the disputed domain name has been put to use in a way that does not appear to be pretextual in connection with the Respondent’s broadcasting business, and that the nature of its use is to provide access to broadcast resources by way of subdomains that are easier to remember than the Internet protocol addresses that are configured to underpin them. Contrary to the Complainant’s claims, there is no evidence that the Respondent may be seeking to sell the disputed domain name to the Complainant or another party at an exorbitant price or any price. There is also no evidence that the Respondent has published, or is planning to publish, objectionable material on the associated website.

For completeness, the Panel will briefly address the issues raised in the Complainant’s request for a supplemental filing in order to expand on its view that these matters are immaterial as to its finding here. First, the lack of a primary use of the disputed domain name, for example in a corporate website, is not of any significance in the circumstances of the present case. The disputed domain name appears to be in use for a legitimate purpose in connection with a genuine, trading business which does not target the Complainant’s rights and, indeed, the Respondent’s corporation possesses its own registered rights, relevant to its line of business, in its own jurisdiction. The absence of any pretext is evident in the fact that, in 2015, the Respondent first registered a company name matching the disputed domain name, then applied for a corresponding trademark in connection with the services it planned to provide, then registered the disputed domain name itself, then has provided the services concerned. It should also be noted that the evidence of use of the disputed domain name in the Response predates the filing of the Complaint by one month, and there is no evidence that the Respondent concocted that evidence in anticipation of the present proceeding. On the contrary, the Respondent states that at no time did the Complainant ever reach out to the Respondent regarding the disputed domain name.

Thirdly, the size of the Respondent’s business is immaterial, provided that the business is genuine, seeks to take no unfair advantage of the Complainant’s rights in its trademark, and is not a mere pretext for cybersquatting. Fourthly, the 130 domain names which the Respondent may be holding are not of significance unless these were to demonstrate that the Respondent is engaged in a pattern of conduct corresponding to paragraph 4(b)(ii) of the Policy. The Complainant has made no such allegation. Holding a large number of domain names does not, of itself, demonstrate bad faith under the Policy. Fifthly, the fact that the Complainant has noted that 43 of the Respondent’s domain names are for “rez” with different TLDs is not suggestive of bad faith in the circumstances of this case. It is reasonable to infer that the Respondent has sought to protect the investment which it has made in its own company name and trademark within the domain name space. It does not suggest that the Respondent is a cybersquatter or show that it has targeted the Complainant.

Sixthly, the fact that none of the Respondent’s other domain names have associated websites raises no particular suspicions in the minds of the Panel. There is no obligation on the Respondent to have any corporate website for its business. The fact that it does not simply means that the Panel expected the Respondent to demonstrate by other means that its business is genuine and not pretextual, and it has done that in the present case. It should also be borne in mind that the Respondent uses subdomains for its broadcast resources which may be engaged intermittently on a project by project basis, and may not be visible to the casual observer. In any event, the domain names concerned may merely be defensive registrations designed to be a blocking portfolio around the Respondent’s brand and trademark. Finally, the fact that the “Wayback Machine” showed a standard registrar’s parking page associated with the disputed domain name in 2019 is not material in this particular case. There is no evidence that the Respondent created this page or intentionally offered the disputed domain name for sale in a way which was intended to target the Complainant. The existence of this page, when factored into the other circumstances of the case, simply suggests that for a time the disputed domain name was dormant until there was a role for it in the Respondent’s business. Furthermore, the lack of use of the disputed domain name until recently would not merit a finding of bad faith in this particular case under the doctrine of “passive holding” (see the discussion and criteria therefor set out in section 3.3 of the WIPO Overview 3.0).

In all of the above circumstances, the Panel finds that the Complainant has failed to prove that the disputed domain name has been registered and is being used in bad faith. The Complaint therefore fails.

7. Decision

For the foregoing reasons, the Complaint is denied.

Andrew D. S. Lothian
Presiding Panelist

Michele A.R. Bernasconi
Panelist

Daniel R. Bereskin, C.M., Q.C.
Panelist
Date: March 28, 2022