юридическая фирма 'Интернет и Право'
Основные ссылки











Яндекс цитирования

Рассылка 'BugTraq: Закон есть закон'



Rambler's Top100



Источник информации:
официальный сайт ВОИС

Для удобства навигации:
Перейти в начало каталога
Дела по доменам общего пользования
Дела по национальным доменам

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

CDI Corporation & Ors v Deepak Rasiklal Rajani & Ors

Case No. D2000-0898

 

1. The Parties

The Complainants are CDI Corporation, a corporation organised under the laws of the State of Pennsylvania and having a principal place of business at 1717 Arch Street, 35th Floor, Philadelphia, Pennsylvania 19103-2768 and Jobline Norden AB, a Swedish corporation having a principal place of business at PO Box 27315, Tegeluddsvagen 64, SE-102 54 Stockholm, Sweden. The Complainants belatedly requested that a third related entity be joined namely Jobline International, AB, the parent company of Jobline Norden AB.

The Respondent is Deepak Rasiklal Rajani and an entity apparently controlled by Mr Rajani and known under the business name "DearNet Online" of Torstrasse 141, Berlin 10119, Germany.

The Respondent requested that the entity "JobLine e.k." be joined as an additional Respondent, that entity being established in Germany as a "Eingetragene Kaufman" said to mean "registered single person legal entity" which is said to be owned by the Respondent, Mr D Rajani.

 

2. The domain names and Registrar

The domain names at issue include:

<job-line.net> and <job-line.org>. The Registrar with which the domain names are registered is Network Solutions, Inc. ("NSI"), of 505 Huntmar Park Drive, Herndon, Virginia, 20170, USA.

The domain names at issue further include <jobline.com> and <job-line.com> registered through Joker.com of Dusseldorf, Germany; the Registrar is CORE Internet Council of Registrars of 29 route de Pre-Bois, CH-1215 Geneva, Switzerland ("CORE").

 

3. Procedural History

A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on July 28, 2000, and the signed original together with four copies was received on July 31., 2000. An Acknowledgment of Receipt was sent by the WIPO Center to the Complainant on August 2, 2000.

On August 9, 2000, a Request for Registrar Verification was transmitted to the respective Registrars requesting them to: (1) confirm that the respective domain names at in issue were registered with the Registrars; (2) confirm that the person identified as the Respondent is the current registrant of the domain names; (3) provide the full contact details (i.e., postal address(es), telephone number(s), facsimile number(s), e-mail address(es)) available in the Registrar’s Whois database for the registrant of the disputed domain names, the technical contact, the administrative contact and the billing contact; (4) confirm that the Uniform Domain Name Dispute Resolution Policy (the "Policy") is in effect; (5) indicate the current status of the domain name.

On August 15 and 23, 2000, NSI and CORE respectively confirmed current registration of the domain names with active status and that the current Registrant was Deepak Rajani in the case of the domain names <jobline.com> and <job-line.com> and that "DearNet Online" is the listed Registrant in respect of the domain names <job-line.net> and <job-line.org>. The Registrar also forwarded the requested Whois details, and confirmed that the Policy is in effect.

The WIPO Center determined that the Complaint satisfies the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999 (the "Policy"), the Uniform Rules, and the Supplemental Rules. The required fees for a single member Panel were paid and in the required amount by the Complainant.

No formal deficiencies having been recorded, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent on August 28, 2000 (with copies to the Complainant, NSI and ICANN), setting a deadline of September 15, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail addresses indicated in the Complaint and specified in NSI’s confirmation. In addition, the Complaint was sent by courier to the postal address given.

On September 16, 2000, WIPO received a Response with a designation of a three-member Panel together with the prescribed fees.

On October 7, 2000, the WIPO Center notified the parties that a three-member Panel was appointed namely, John Terry (presiding Panelist), Sir Ian Barker and David Perkins and set the projected decision date as October 30, 2000.

Representatives of the Complainants filed on October 2, 2000 a reply to the response and the Panel made a preliminary determination dated October 31, 2000 to admit the reply in the exceptional circumstances of the case and on the basis that 7 days were allowed for the Respondents to lodge remarks strictly in reply only and not exceeding 2,000 words, conditions which were ignored by the Respondent by filing with WIPO by email a rebuttal document on November 6, 2000 which exceeded the allowed length and extended beyond matters strictly in reply.

By email on November 9, 2000 representatives of the Complainants filed yet further material in further reply and the Panel was obliged to defer the projected decision date.

 

4. Factual Background

The Complainants have long established trade mark interests and registrations for JOB LINE in USA and Sweden. The present domain names according to the Complainant’s evidence Annexure E were created as follows:

<jobline.com> 25 October 1997

<job-line.com> 3 December 1999

<job-line.net> 9 July 1999

<job-line.org> 9 July 1999

The Complainant summarises its factual background that the Respondents have registered over 50 domain names, four of which are presently in dispute and the last three of which were registered by the Respondents after an approach by the Complainants to negotiate an arrangement or purchase the Domain Name <jobline.com>. The Complainants contend that the Respondents have never used nor intend to use the disputed domain names for any bona fide business purposes. The Complainants contend that the Respondents are not using any of the domain names and have simply used "domain parking" services by "Pair Networks" to house all their registered domain names including those in the present dispute.

The Respondents contend that the domain names in dispute are of a generic character and he first registered the Domain Name "jobline.com" when he found it available for adoption and asserted that he had some business plan with an unnamed investor to develop an Internet based service involving the provision of job opportunity listings and the like. It is common ground that a meeting took place with a representative of the Respondents in which the Respondents declined a substantial offer for transfer of the Domain Name and indicated that another party had offered a much higher price and had no intention of selling at anything like the price offered, namely $60,000.

 

5. Parties’ Contentions

Complainant

The Complainants contend that it has rights and interests in the trade mark JOB LINE and that the domain names in dispute are identical or confusingly similar and contend that the Respondents have no rights or legitimate interests in respect of the domain names and further registration and use of the domain names was in bad faith. In particular, the Complainants contend that the inference should be drawn that the circumstances including the refusal of the $60,000 offer should lead to the inference that bad faith registration and use should be deemed to arise by virtue of paragraph 4(b)(i) of the Policy.

The key factual contentions and time-lines put forward by the Complainants are set out for convenience in the Reply to the Response in paragraph 2.1 as follows:

"2.1 The following timeline is presented to clarify and focus the important dates concerning this Complaint. The items indicated with "(N)" are newly discovered, documented facts. The items indicated with "*" are alleged dates as provide in the Response but unsubstantially by any documentary evidence.

July 27, 1983 Complainant CDI files for JOB LINE word mark in the United States alleging use dating back to June 1983. (Repl. Annex RA1.)

October 9, 1984 Complainant CDI’s JOB LINE mark Registered, U>S. Reg. No. 1,299,842. (Repl. Annex RA1.)

October 23, 1996 Complainant Jobline files the earliest of the JOBLINE word marks (Sweden). (Compl. Annex B1.)

January 30, 1997(N) Complainant Jobline registers the earliest jobline domain name – for jobline.se. (Repl. Annex RB1-RB2.)

October 25, 1997 Respondents register Disputed Domain Name jobline.com. (Compl. Annex E1.)

* 1997-1998 Respondents "develop" web site directory. (Resp. §10.)

January 26, 1999 Respondents file word mark for JOBLINE in Germany. (Resp. Annex AA-005.)

May 25, 1999 Complainants initiate dialogue with Respondents regarding interest in the jobline.com domain name. (Resp. Annex AB009.)

* June 1, 1999 Respondent Rajani applies for registration of company name Jobline.e.K. (Resp. §13, p.11, ¶1.)

July 7, 1999 Complainants and Respondents meet regarding purchase of or possible joint venture using the jobline.com domain name. (Compl. ¶¶12.9-12.10.) Jobline e.K. registration officially recorded. (Compl. Annex N1.)

July 9, 1999 Respondents register Disputed domain names job-line.org and job-line.net. (Compl. Annex E3-E4.)

September 9, 1999 Respondents file design mark for JobLine in Germany. (Compl. Annex 01.)

* Fall 1999 Respondents begin to develop and differentiate web pages at the AtoZ.com and jobline.com domains. (Resp. §15, p.13, ¶6.

December 3, 1999 Respondents’ official registration date of Disputed Domain Name job-line.com. (Compl. Annex E2.)

The Respondents have contested the accuracy of some of the detail in the above statement and in turn the Respondents challenged some aspects of the rebuttal as misleading and wrong. As will become apparent from the reasons for decision, the Panel does not need to determine precisely all facts for the purpose of resolving this matter.

Respondents

The Respondents claim to have legitimate rights and interests and claim to have made preparations for use of the Domain Name <jobline.com> before notice of the dispute and contend that their activities of registration and any use were not in bad faith but part of a business plan to develop an Internet based business potentially based on many domain names which the Respondents contend were of a generic character. The Respondents contend they had no knowledge of the Complainants or their trade marks or the use of their marks prior to being approached in connection with the possible transfer of the Domain Name <jobline.com>, (the only one of the present four domain names which had been registered at that time by the Respondents). The Respondents appear to contend that the subsequent registration of the further domain names was a legitimate step.

 

6. Discussion and Findings

In the interest of general convenience, the Panel finds it appropriate to admit the joining of Jobline International, AB as a co-Complainant and admits the recognition of Job-line e.k. as a co-Respondent.

WIPO Supplemental Rule 10 requires the parties to confine themselves in their substantive contentions to 5,000 words for the Complaint and a Response. In this case, the Respondent has filed materials many times in excess this limit. In the future, the Panel recommends that WIPO enforces the rule strictly by refusing to accept a blatantly excessive response and to provide that the Respondent with a short time to reformulate its response within the limit. If necessary, the Panel recommends that WIPO rules be amended expressly to provide for such a process. In this case, the Panel finds that the Respondents, within the scope of their opportunity for further rebuttal, have abused the process by including materials not strictly in reply and greatly exceeding the allowed length of documentation. The Panel finds that that material, like the original Response, suffers from their verbosity, repetition, irrelevances and is of such an incoherent character as to render the task of the Panel difficult. Notwithstanding the difficulties, the Panel members have perused all the materials to arrive at a decision on the merits.

The ICANN rules do not envisage a hearing or cross examination of witnesses and for the reasons stated below, the Panel finds it unable to determine that the domain name <jobline.com> was registered by the First Respondent under circumstances which established bad faith within paragraph 4(a)(iii) of the Policy. Although the First Complainant had long registered and used in United State of America the trade mark "JOBLINE" in relation to services pertaining to employment opportunities and placements, ie from 1983, the certified Response of the Respondent is that he did not know of any such use or registration, did not through trade mark searches seek to find out what might be the position in USA and at the time of registering the domain name "JOBLINE.COM" on October 25, 1997, knew nothing of the Complainant. Although the Respondent has not given clear and concise evidence of the exact circumstances and business plans associated with his registration of <jobline.com> as a domain name, nevertheless the Panel is obliged to hold that his statement is sufficient to prevent the Panel upholding a prima facie case made out by the Complainant in the Complaint that registration by the Respondent was initially achieved in bad faith.

The evidence contains disputes in detail but there is common ground that an approach on behalf of one of the Complainants was made to the Respondent to establish a business relationship and/or for the domain name <jobline.com> to be transferred but the Respondent rejected such approaches. There is no positive evidence that the Respondent acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant or to a competitor of the Complainant for consideration in excess of the expenses. The Respondent has expressly denied any such intention and notwithstanding that the Respondent may have registered a portfolio of domain names of a generic character, the Panel holds that the exemplary requirement to prove bad faith in accordance with 4(b)(i) of the Policy is not made out and neither can the Panel be satisfied that on the documentary process allowed under the ICANN rules that any other of the clauses of paragraph 4(b) of the Policy are established. Neither can the Panel determine that otherwise bad faith registration under 4(a)(ii) of the Policy is established.

Having so found, it is unnecessary for the Panel to consider whether the Respondent has discharged its onus of establishing that it has rights or legitimate interests in respect of the domain name <jobline.com> in terms of the exemplary clauses of paragraph 4(c) of the Policy or otherwise in a general sense.

The Panel wishes to emphasise that in making the findings set out above it does not address the question as to whether any activities in relation to use of a domain name or corresponding trade mark by the Respondent has, or may in the future, constitute an infringement of any trade mark rights of any one of the Complainants or otherwise be actionable in a Court of competent jurisdiction. It is beyond the scope of the ICANN Policy to consider such matters.

The other three domain names at issue are however a different matter, namely <job-line.com>, <job-line.net> and <job-line.org>.

The Panel is satisfied that quite clearly the presence or absence of a hyphen, space or other punctuation between the prefix "job" and the suffix "line" is immaterial in that the respective forms are either in substance identical or at least confusingly or deceptively similar.

On May 25, 1999, the Complainants initiated an approach to the Respondents regarding their position with regard to the trade mark JOBLINE and interests in the domain name <jobline.com>. It was only on July 9, 1999 that the Respondents registered the presently disputed domain names <job-line.org> and <job-line.net> and on December 3, 1999, registered the further domain name <job-line.com>. These activities were plainly after the Complainant put its position and its trade mark interest squarely before the Respondents and the Panel draws the inference that this activity by the Respondents was registration in bad faith and the subsequent holding of such domain name registrations constitute use in bad faith as well as established in the leading decision concerning the domain name <telstra.org>, decision D2000-003 of WIPO. The facts also establish that no right or

legitimate interest in these hyphenated domain names is established by the Respondents and accordingly, the Panel holds that the Complainants have made out the three elements required to succeed in this proceedings under 4(a) of the Policy.

More particularly, the Panel finds that the exemplary and non-exhaustive provisions which are deemed to demonstrate bad faith registration and use are established in terms of paragraphs 4(b)(ii) and 4(b)(iii) of the Policy, namely that the activity of the Respondent is to prevent the Complainants from reflecting their trade mark in a corresponding domain name and that in the circumstances the filing of three domain name registrations constitutes a pattern of such conduct. Furthermore, in terms of clause (iii), the Panel holds that the inference must be drawn that the Respondents have acted primarily for the purpose of disrupting the business of a competitor, namely the Respondents.

The Response contains a forcible, but somewhat incoherent and verbose submissions that the activities of the Complainants constitutes reverse domain name hijacking, an activity not defined in the Policy or Rules. The Panel finds no such hijacking in respect of any of the domain names in view of prior trade mark prior filings and use at least in USA and Sweden. In this case, the Panel finds that the Complainants provided a proper prima facie case, but in view of the Response, the Panel could not find in respect of one of the domain names <jobline.com> that the onus on the Complainant was discharged.

 

7. Decision

For the reasons stated above, the Panel decides that the domain name <jobline.com> has not been established as having been registered in bad faith by one of the Respondents and dismisses the Complaint.

For the reasons stated above, the Panel decides that domain names <job-line.com>, <job-line.net> and job-line.org> are identical or confusingly similar to a trade mark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of these domain names and that the Respondents’ domain names have been registered and are being used in bad faith. Accordingly, pursuant to paragraph 4(i) of the Policy, these domain names should be transferred as requested by the Complainants namely to Jobline International, AB.

 

 


 

 

John Terry
Presiding Panelist

Dated: 17 November 2000

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2000/d2000-0898.html

 

Добавить эту страницу в закладки:

 


 

Произвольная ссылка:

Разработка сайта
ArtStyle Group

Уважаемый посетитель!

Вы, кажется, используете блокировщик рекламы.

Пожалуйста, отключите его для корректной работы сайта.