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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Red or Dead Limited v. Kid Pty Ltd (aka Kid Enterprises Pty Ltd)
Case No. D2000-0280
1. The Parties
Complainant is Red or Dead Limited, a corporation incorporated under the laws of England under Company No. 3208653, whose registered office is at Pentland Centre, Lakeside, Squires Lane, London N3 2QL, U.K.
The Respondent is Kid Pty Ltd (aka Kid Enterprises Pty Ltd), a corporation incorporated under the laws of Australia under Company No. 084861638 with a postal address at P.O. Box 307 Prahran, Melbourne, VIC 3181, Australia
2. The Domain Name and Registrar
The domain name in issue is "redordead.com"; the Registrar with which the disputed domain name is registered is Network Solutions, Inc., 505 Huntmar Park Drive, Herndon, VA 20170. U.S.A.
3. Procedural History
The Complaint was filed on April 13, 2000. The Center acknowledged receipt of the Complaint on April 21, 2000. A request for Registrar verification was forwarded to Network Solutions, Inc. April 21, 2000. On April 25, 2000, Network Solutions, Inc. confirmed by e-mail that Kid Pty Ltd, P.O. Box 307 Prahran, Melbourne, VIC 3181, Australia is the current registrant of the domain name in issue. A supplemental communication from the Complainant was received by the Center by e-mail on May 4, 2000.
On May 8, 2000, the Center forwarded Notification of Complaint and Commencement of Administrative Proceeding to Kid Pty Ltd by e-mail and Post/Courier. The Center advised the Respondent that a response was due within twenty (20) calendar days from the day of receipt of the notification. The Respondent was advised that the last day for sending the Response to the Complainant and the Center is May 27, 2000. The Center forwarded a Notice on June 2, 2000, by e-mail to the Parties advising that not having received a Response by the due date of May 27, 2000, the Center expects shortly to inform the Parties of its appointment of a Panel and that the panel is to render its decision within 14 days from the date of its appointment. On June 15, 2000, the Center forwarded a Notification of Appointment of Administrative Panel to the Parties and advised that the Administrative Panel is required to forward its decision to the Center by June 29, 2000.
4. Factual Background
a. The Trademarks
The Complaint is based on the ownership of registered Trademarks for RED OR DEAD registered in Australia, U.S.A. and U.K. in relation to a list of goods including clothing and footwear. An Australian trademark RED OR DEAD was registered on May 14, 1993. Two United States Trademarks for RED OR DEAD were registered on January 28, 1997, and October 13, 1998, respectively. Two U.K. Trademarks were registered on October 21, 1987, and December 23, 1998, respectively. The Complainant is also the owner of the RED OR DEAD and RED OR DEAD & Design trademarks in over 40 countries worldwide.
b. The Complainant submits that the domain name redordead.com is identical or confusingly similar to the registered trademarks RED OR DEAD and RED OR DEAD & Design. The Complainant further submits that Kid Pty Ltd has no rights or legitimate interest in respect of the domain names and finally, the Complainant states that the domain name has been registered and is used in bad faith.
With respect to the first element of confusing similarity between the domain name and the registered trademarks for RED OR DEAD the Complainant attaches as Annex E several of the Complainant’s registered trademarks for RED OR DEAD. The trademarks are registered in relation to a list of goods including clothing and footwear. The RED OR DEAD trademarks are extensively advertised and used. Sales in Australia through a retail chain called "Myre" amounted to a wholesale value of UK Ј31,198.50 in 1997 and Ј39,660.54 in 1998. Complainant advertised RED OR DEAD clothing and footwear through the media, in television programs and features in fashion books.
With respect to the second element whether the Respondent has no rights or legitimate interest in respect of the disputed domain names, the Complainant`s evidence is that the Respondent is not known by the RED OR DEAD name and is not making commercial or fair use of the disputed domain name. The evidence is that entry of the domain name www.redordead.com takes the visitor to a website which is still under construction and has been under construction since March 1999 ever since the Complainant became aware of it. The Respondent is not associated with, affiliated with or licensed by the Complainant to use the Registered Trademark RED OR DEAD for the wares for which the trademarks are registered.
With respect to the third element as to whether the Respondent has registered and is using the disputed domain name in bad faith the Complainant submits the additional fact that the Respondent advised the Complainant by e-mail that the Respondent has received many inquiries at the site of the domain name redordead.com concerning the location and goods of the Complainant. At page 1 of Annex G is an e-mail from the Respondent asking whether the Complainant was interested in purchasing the domain name. The Respondent stated that he was receiving over 500 e-mails asking Respondent various questions about the location at which Complainant’s goods were available and the choice of goods available.
c. The Response
No response with respect to the Complaint was received by the Center or by the Panel. In this connection, the Panel notes that the Center received a brief and informal e-mail communication from the Respondent implying that the Respondent had received the Center’s notification of the Complaint.
The first element which the Complainant must prove is that the domain name is identical or confusingly similar to the Complainant’s trademarks. The disputed domain name is identical to the Complainant’s registered trademarks except for the descriptive addition ".com". A number of surrounding circumstances relating to the registered trademarks and the disputed domain name will be considered to determine if the registered trademarks and disputed domain name are confusingly similar.
The words RED OR DEAD which are the subject of numerous registrations registered in the name of the Complainant for wares including clothing and footwear are inherently distinctive words as applied to the particular goods for which the marks are registered.
The trade name RED OR DEAD has been in use in relation to clothing and footwear in the United Kingdom since 1983. The trademark RED OR DEAD has been registered in Australia since 1993 in association with clothing, footwear and other goods.
The domain name in dispute redordead.com is comprised of the three words RED OR DEAD. The idea suggested by the disputed domain name and the registered trademarks is that the goods or services offered in association with the domain name are manufactured by or sold by the Complainant or one of the Complainant’s approved distributors. The domain name redordead.com registered by the Respondent is confusingly similar to the Complainant’s registered trademarks RED OR DEAD.
The second element which the Complainant is required to prove is that the Respondent has no rights or legitimate interest in respect of the domain name in dispute. The website identified by the domain name redordead.com has been under construction for over a year. The Respondent advised the Complainant that the website was attracting inquiries about the Complainant’s business and goods and offered to sell the domain name in dispute to the Complainant. The Respondent has failed to disprove the indications provided by Complainant that the Respondent has no right or legitimate interest, and the Panel concludes accordingly.
The third element which the Complainant is required to prove is that the disputed domain name has been registered and is being used in bad faith. The Respondent has offered to sell the domain name in dispute to the Complainant for Ј10,000. The Complainant’s representative made a counteroffer to purchase the domain name for Ј500. The counteroffer was refused by the Respondent. The Respondent registered the domain name in dispute on December 7, 1998 and the website is still under construction. The words RED OR DEAD in respect of clothing are inherently distinctive and substantial sales of clothing in association with the trademark RED OR DEAD have been made by the Complainant in Australia. Having regard to the lack of development of the website by the Respondent, the Respondent advising the Complainant of the number of inquiries concerning the Complainant’s business and goods received at the web site and an offer to sell the domain name for Ј10,000, I conclude that the Respondent registered and is using the disputed domain name in bad faith.
6. Summary of Findings
a. The domain name in dispute is confusingly similar to the Complainant’s registered trademarks for RED OR DEAD registered in respect of various wares including clothing, footwear, headwear.
b. The Respondent has no rights or legitimate interest in respect of the disputed domain name. The words RED OR DEAD are inherently distinctive words in respect of goods or services for which they are registered and the Respondent’s website is attracting inquiries concerning the Complainant’s business and goods even though the Respondent’s website is still under construction.
c. The domain name has been registered and is being used in bad faith by the Respondent. Upon arrival at the website potential customers will find that the site is still under construction. The respondent has received 500 emails inquiring about the location of the Complainant’s business and goods. The Respondent has offered to sell the disputed domain name to the Complainant for Ј10,000. A counteroffer by the Complainant to purchase the disputed domain name for Ј500 was refused by the Respondent. The above circumstances when considered together lead to the inference that the Respondent acquired the disputed domain name for purposes of selling or leasing the disputed domain name to the Complainant who is the owner of the Registered Trademark RED OR DEAD.
In the Complaint, the Complainant requested that in accordance with Paragraph 4(c)(i) of the Uniform Domain Name Dispute Resolution Policy, the Administrative Panel issue a decision that the disputed domain name be transferred to Complainant. The Complainant having proved each of the three elements set out in paragraph 4(a)(i)(ii) and (iii) of the Uniform Domain Name Dispute Resolution Policy is entitled to the decision requested. The Panel requires that the domain name redordead.com be transferred to Red or Dead Limited.
Dated: June 23, 2000