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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
(1) First Choice Holidays PLC (2) Hayes & Jarvis (Travel) Limited v. Tofique Ahmed
Case No. D2001-0944
1. The Parties
(1) First Choice Holidays PLC
(2) Hayes & Jarvis (Travel) Limited
First Choice House
20 Una House
Prince of Wales Road
2. The Domain Name and Registrar
Domain Name: <hayesandjarvis.com>
Registrar: Computer Services Langenback GmbH d/b/a/ joker.com
3. Procedural History
The Complaint was received by WIPO by email on July 24, 2001, and in hardcopy form on August 17, 2001. On July 25, 2001, an Amendment to the Complaint was received by WIPO. WIPO has verified that the Complaint satisfies the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.
The Complaint was properly notified in accordance with the Rules, paragraph 2(a). The Registrar has confirmed that <hayesandjarvis.com> ("the Domain Name") is registered with it and that Tofique Ahmed ("the Respondent") is the current registrant. The Registrar has further confirmed that the Policy is applicable to the Domain Name.
On August 20, 2001, WIPO notified the Respondent of the Complaint in the usual manner and informed the Respondent inter alia that the last day for sending its Response to the Complainant and to WIPO was September 9, 2001. No Response was filed. On September 11, 2001, WIPO issued to the Respondent a Notification of Respondent Default informing the Respondent of the consequences of his default.
The Panel was properly constituted. The undersigned Panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
No further submissions were received by WIPO or the Panel, as a consequence of which the date scheduled for the issuance of the Panel’s Decision is October 8, 2001.
4. Factual Background
The Second Complainant was incorporated in the United Kingdom in 1952. It is a well-known tour operator which trades as Hayes & Jarvis. It is now a wholly owned subsidiary of the First Complainant. For present purposes the two Complainants can be treated as one and, hereinafter, the two Complainants are together referred to as "the Complainant".
On or about March 5, 2000, the Respondent registered/acquired the Domain Name.
The Complainant states that in June 2000, it first noticed the existence of the Domain Name and found it connected to a website at <www.hayesandjarvis.com>, which indicated that the Domain Name was for sale for either Ј20,000 or US$20,000.
In the course of August 2000, the Complainant made three attempts (by email and by post) to contact the Respondent. It drew the Respondent’s attention to its rights in its name and sought clarification as to the reason for registration of the Domain Name.
On August 22, 2000, the Complainant applied to register as a Community Trademark a device mark in Classes 16, 39 and 42, which features prominently the name "Hayes & Jarvis". The application had not at the date of the Complaint matured into a registration.
In late 2000, the Complainant lodged its first Complaint in relation to the Domain Name. The Complaint was deficient in too many respects for WIPO to process it and it was returned to the Complainant for rectification and re-filing.
The Complainant states that, on January 3, 2001, at 11.45 a.m., it received a telephone call from the Respondent, in the course of which the Respondent said he was seeking legal representation for the purpose of dealing with the Complaint, but that if the Respondent wanted to settle the dispute "the easy way", he would be willing to listen to the Complainant’s proposals. The Complainant said that it was prepared to reimburse the Respondent his out-of-pocket expenses in relation to the Domain Name and its transfer, but no more. The Complainant pointed out that it had already spent $1500 on the complaint fee. The Respondent responded by saying that he was prepared to listen to any reasonable proposals. On being asked why he registered the Domain Name, the Responded is stated to have responded "on the advice of a friend".
5. Parties’ Contentions
The Complainant contends that the Domain Name is identical or confusingly similar to its trading name Hayes & Jarvis. It further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name, the Respondent having no connection with the Complainant. It points out that the Domain Name is not connected to an active website. It also points out that the Domain Name is a more appropriate domain name for the Complainant to use for e-commerce than its current domain name <hayes-jarvis.com>. It claims that the registration of the Domain Name, in the hands of the Respondent, is hampering it.
The Complainant contends that the Respondent registered the Domain Name in order to sell it on for profit.
The Respondent has not responded
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that
(i) The 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 interest in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
How does the Respondent’s failure to respond impact on this administrative proceeding? By virtue of Rule 14(b) the Panel is entitled to draw such inferences as it deems appropriate from the failure to respond.
In the circumstances the Panel sees no reason not to accept the Complainant’s un-contradicted evidence as to the following ‘facts’, namely:-
1. the Domain Name originally connected to a web page offering the Domain Name for sale at a price of Ј20,000 or $20,000
2. in the course of a telephone conversation with the Complainant and initiated by the Respondent, the Respondent indicated that he was prepared to sell the Domain Name for a sum in excess of his out-of-pocket expenses
3. in the course of the same telephone conversation he gave as his reason for registering the Domain Name that he did it on the advice of a friend.
4. The Respondent has no connection with the Complainant.
Identical or confusing similarity
The Complainant has traded under the name "Hayes & Jarvis" for nearly 50 years and is well known in the UK under that name. Clearly, the Complainant has built up goodwill under that name and has acquired common law rights in respect of the name. In other words, "Hayes & Jarvis" is a common law trademark of the Complainant.
The Domain Name comprises two elements, namely, first, a name identical to the Complainant’s trademark save for the necessary (in the domain name context) substitution of "and" for "&" and, secondly, the generic dot com suffix.
The Panel finds that the Domain Name is in substance identical to a trademark in respect of which the Complainant has rights.
Rights or legitimate interest of the Respondent
The name "Hayes and (&) Jarvis" is an unusual one. It is peculiarly and exclusively referable to the Complainant. The Respondent has no connection with the Complainant and as is evident from the Domain Name ownership record the Respondent’s name is not "Hayes and (&) Jarvis". There is no evidence that the Domain name has ever been connected to any active website administered by the Respondent. At an early stage it was connected to a site offering it for sale for a large sum of money. The only reason for the Respondent’s registration of the Domain Name is that it was on the advice of a friend.
In the view of the Panel the Complainant has made out a prima facie case under paragraph 4(a)(ii) of the Policy. Paragraph 4(c) of the Policy sets out a non-exhaustive list of circumstances, which if shown to be present shall constitute evidence of the Respondent’s rights and/or legitimate interests in respect of the Domain Name. The Respondent has put nothing before the Panel and the Panel can think of no reason why the Respondent might reasonably be said to have any rights or legitimate interests in respect of the Domain Name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
Paragraph 4(b) of the Policy sets out a non-exhaustive list of circumstances which if found by the Panel to be present shall be evidence of bad faith registration and use of a domain name for the purposes of paragraph 4(a)(iii) of the Policy.
Paragraph 4(b)(i) of the Policy reads as follows:-
"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".
The Domain Name is self-evidently not the kind of domain name that anyone would register on a whim. In the absence of any evidence as to the existence of any other "Hayes and (&) Jarvis", the overwhelming probability is that the Respondent had the Complainant in mind when selecting the name.
The fact that shortly after registration of the Domain Name the Domain Name was connected to a site offering it for sale for a substantial sum of money persuades the Panel that the Domain Name was registered for the purpose of selling it on. In the circumstances, it seems clear that the only entity which might have been prepared to pay a large sum of money for the Domain Name is the Complainant.
The Panel finds that the Domain Name was registered by the Respondent primarily for the purpose of selling it to the Complainant for a sum of money in excess of his out-of-pocket expenses.
Accordingly, the Panel finds that the Domain Name was registered in bad faith and is being used in bad faith within the meaning of paragraph 4(b)(i) of the Policy.
In light of the foregoing findings, namely that the Domain Name is identical to a trademark in which the Complainant has rights and that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered in bad faith and is being used in bad faith, the Complaint succeeds.
Pursuant to paragraphs 4 of the Policy and 15 of the Rules, the Panel directs that the Domain Name <hayesandjarvis.com > be transferred to Hayes & Jarvis (Travel) Limited, the Second Complainant.
Dated: October 2, 2001