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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Internationale Inlingua Sprachschulen v. Stuart Calder
Case No. D2006-0938
1. The Parties
The Complainant is Internationale Inlingua Sprachshulen, Bern, Switzerland, represented by the German law firm Lorenz-Seidler-Gossel.
The Respondent is Stuart Calder of Burnside, Rutherglen, the United Kingdom
of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name is <inlinguaproject.info>.
The disputed domain name <inlinguaproject.info> is registered with Direct
Information Pvt Ltd d/b/a PublicDomainRegistry.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 24, 2006.
On July 25, 2006, the Center transmitted by email to Easy Internet Solutions Ltd. a Request of Registrar Verification in connection with the domain name(s) at issue. On August 4, 2006, Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 August 4, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 24, 2006. The Respondent did not submit a formal response. Accordingly, the Center notified the Respondent’s default on September 4, 2006.
After the time limit to file a response had expired, on August 29, 2006, the Respondent sent an email to the Center (see paragraph 5B). Upon receipt of the Respondent’s communication, the Center, on August 29, 2006, informed the parties of the option to suspend the proceedings to explore a settlement between the parties. However, the parties did not communicate to the Center their desire to settle the case and thus the proceeding was continued.
The Center appointed Nathalie Dreyfus as the Sole
Panelist in this matter on September 5, 2006. 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 in these administrative proceedings is the company ‘International Inlingua Spraschulen’, based in Switzerland. It has been engaged under the company name ‘Inlingua’ in the field of language services since 1968.
The Complainant offers its services via Internet in nearly 300 centres and 30 countries around the world. The Complainant alleges to be the world leading company in the sphere of language activity.
The trademark on which the Complaint is based is ‘INLINGUA’.
According to documentary evidence and contentions submitted by the Complainant, the Complainant is the owner of the following UK Trademarks extensively used for inter alia language training and translation services:
- UK trademark n°947224 ‘inlingua”, registered on July 22, 1969.
- UK trademark n°126918 ‘inlingua”, registered on October 20, 1989.
- UK trademark n°126919 ‘inlingua”, registered on November 24, 1989.
- UK trademark n°1376449 ‘inlingua APP”, registered on September 28, 1969.
- UK trademark n°127026 ‘inlingua-data”, registered on April 27, 1990.
- UK trademark n°127027 ‘inlingua-data”, registered on June 22, 1990.
Complainant is also the owner of the following International Trademark registrations:
- IR-trademark 361953 ‘inlingua’, registered on October 2, 1969
- IR-trademark ‘inlingua’, registered on October 11, 1995
Furthermore, Complainant is the owner of the following national trademarks:
- US-trademark 923232 ‘inlingua’, registered on November 2, 1971.
- US-trademark 1 099 859 ‘inlingua’, registered on August 15, 1978.
- German trademark 989683 ‘inlingua’, registered on August 28, 1979.
- Swiss trademark 405132 ‘inlingua’, registered on September 9, 1993.
Respondent is an individual with an address in the
United Kingdom. The disputed domain name was registered on January 16, 2006.
5. Parties’ Contentions
The Complaint submits that the domain name <inlinguaproject.info> is confusingly similar to the INLINGUA trademarks in which the Complainant has rights.
The contested domain name consists of the Complainant’s trademarks with the mere adjunction of the descriptive word “project” and the gTLD “.info”.
The addition of the extra word does not change the fact that the domain name is confusingly similar to the Complainant’s trademark.
Since the dominant part of the domain name in dispute and the Complainant’s trademarks are identical, the contested domain name is identical to the Complainant’s trademarks.
Respondent does not have a legitimate interest in respect of the domain name, since the Complainant has not licensed the Respondent to use its trademarks or to register or use the disputed domain name.
The Respondent has not developed an active website using the domain name.
The disputed domain name is used to advertise various services (such as free phone numbers, domain name registration, web hosting). This is to attract Internet to the website by creating a likelihood of confusion characterizing bad faith.
The Respondent did not submit a Response to the Complainant’s contentions within the specified time-limit and has been notified on his default on September 4, 2006.
However on August 29, 2006, the Respondent submitted a non-formal response by email, by which he wrote:
“I am confused by the email I have received.
I cancelled the account on receipt of the letter and removed the files that
were there. In cancelling the account I was under the impression that everything
would be cancelled, I did take advice from the support department on how to
cancel the account, but unfortunately with it being cancelled I can no longer
get into the support notes. I apologise if this has been an error on my behalf,
but it is a genuine error. On my cancelling the account I believed everything
would be cancelled after all what good would the name be with a cancelled account.
I would also like to point out that at the time I was working for inlingua and
the site was a place where the students could view their project work and was
not for any malice.”
6. Discussion and Findings
The first issue is whether the Panel has to consider the Respondent’s communication of August 29, 2006.
In the event of a late response, the Panel’s default course of action, pursuant to paragraph 14(a) of the Rules, is to proceed to the decision based only on the Complaint. The Panel may however, in its discretion, consider the response if “exceptional circumstances” exist.
Previous decisions where late responses have been accepted include J.P.
Morgan & Co., Incorporated and Morgan Guaranty Trust Company of New York
v. Resource Marketing, WIPO Case No. D2000-0035.
In this case Respondent’s contentions were filed before commencement of
the decision-making process by the Panel.
As the Panel finds that the Respondent’s contentions were submitted to the Center before the Panel’s commencement of the decision making process, and this has not delayed the decision, the Panel will consider the communication.
The Panel notes that the submitted communication does not comply with the requirements set out in paragraph 5(b) of the Rules. In accordance with paragraph 14(b) of the Rules the Panel may draw such inferences from the Respondent’s failure to comply with the Rules as she considers appropriate.
A. Identical or Confusingly Similar
The Complainant has shown that it has trademark rights in the term INLINGUA.
According to previous panel decisions under the UDRP the generic top level domain denominator (gLTD) is irrelevant when determining whether a disputed domain name is confusingly similar to a protected trademark. Hence, the addition of the gLTD “.info” to the contested domain name can be disregarded.
Furthermore, the mere addition of a generic word to a registered trademark
has consistently been deemed insufficient to avoid confusing similarity under
previous UDRP panel decisions. (Dr. Grandel GmbH v. Drg Randel Inc., WIPO
Case No. D2005-0829).
The contested domain name <inlinguaproject.info> comprises the trademark ‘INLINGUA’ and the generic term ‘project’. Hence, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Panel therefore finds that paragraph 4(a)(i) of the Policy has been satisfied.
B. Rights or Legitimate Interests
The Panel has considered the allegation made by the Complainant that the Respondent lacks any rights or legitimate interests in the contested domain name. The Panel finds that the Complainant has made a prima facie showing of the Respondent’s lack of rights.
The Respondent asserts that it intended to create a website where students could view their projects work. However, the Respondent has not submitted proof of any use or preparation to use the domain name.
The Respondent has claimed that he is a former employee of the Complainant.
However, the Respondent nor the Complainant has not submitted proof of this
and the Panel finds, in the circumstances of this case, the argument unconvincing.
Be that as it may, the Panel refers to Savino Del Bene Inc v. Graziano Innoncenti
Gennari, WIPO Case No. D2000-1133,
where the panel said:
“However, what the Respondent claims he intends to do is irrelevant, since he has taken no demonstrable steps towards his goal.
There is no evidence that Respondent is making or preparing a legitimate noncommercial or fair use of the Domain Name as defined by paragraph 4. (c) (iii) of the Policy. Moreover, this Panel finds that, as a rule, former employees do not have a legitimate right or interest in registering in their own name their former employer’s trademark as a domain name.
Therefore, this Panel finds that Respondent has not demonstrated his rights or legitimate interest in the disputed Domain Name.”
From these facts, the Panel concludes that the Respondent does not have any rights or legitimate interests in the contested domain names, which the Respondent has not rebutted.
The Panel therefore finds that paragraph 4(a)(ii) of the Policy has been satisfied.
C. Registered and Used in Bad Faith
The Panel is satisfied that the Respondent most likely had knowledge of the Complainant’s trademark and its business activities. The Complainant has registered trademarks in the United Kingdom and has conducted its business there for many years.
The Respondent is making no use of the contested domain name. In accordance
with previous decisions, the absence of use of the domain name may indicate
bad faith of the Respondent (See e.g. Prada S.A. v. Roderick G. Arnold,
WIPO Case No. D2002-0928
and Sanofi-Aventis v. Carmen Capone, WIPO Case
Indeed, panels have repeatedly held that the mere holding of a domain name
may constitute a “use” in the sense of paragraph 4 (a) (iii) of
the Policy. The concept of a domain name “being used in bad faith”
is not limited to positive action; rather, inaction is within the concept (Telstra
Corporation Limited v. Nuclear Marshmallows, WIPO
Case No. D2000-0003).
The Panel notes that the Respondent did not answer the letter of demand of
the Complainant and that he has not submitted a formal Response, which the Panel
finds, also suggests bad faith on the part of the Respondent (Sanofi-Aventis
v. Carmen Capone, WIPO Case No. D2006-0112).
As stated earlier, in the absence of proof, the Panel does not find Respondent’s
allegations on bona fide use, submitted in its email communication of
August 29, 2006, convincing.
The Panel finds that in the specific circumstances of this case the Respondent’s actions indicate bad faith, and that, on the balance of probabilities, the disputed domain name has been registered and is being used in bad faith.
The Panel therefore finds that paragraph 4(a)(iii) of the Policy has been satisfied.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <inlinguaproject.info> be transferred to the Complainant.
Dated: September 29, 2006