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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Utilikilts Company, LLC v. Registrant
Case No. D2002-0712
1. The Parties
1.1 The Complainant is Utilikilts Company, LLC, a limited liability corporation incorporated in the United States with its principal place of business at 1819 15th Avenue West, Seattle, WA, United States of America. The Respondent is "Registrant". Details were originally given in this regard of Registrant email@example.com 2525 5532 Registrant, P.O. Box No. 71826, KCPO YMT, HK. These were subsequently changed to Registrant firstname.lastname@example.org 2525 5532 China but nothing turns on this change.
2. The Domain Name and Registrar
2.1 The domain name at issue is <utilikilt.com> (the "Domain Name").
2.2 The Registrar is OnlineNIC, Inc. D/B/A China-Channel.com ("OnlineNIC"). Confirmation from OnlineNIC was received by the WIPO Arbitration and Mediation Center (the "Center") by email on July 31, 2002, stating that it had not received a copy of the Complaint but confirming that the Respondent was the current Registrant of <utilikilt.com>. (The Center subsequently forwarded a copy of the Complaint to OnlineNIC.)
3. Procedural History
3.1 The Complaint dated July 29, 2002, was received by email by the Center on the same day, with a hard copy being received on August 2, 2002.
3.2 Notice of the proceedings was served on the Respondent in accordance with the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") on August 8, 2002. No Response to the Complaint has been filed. On August 29, 2002, Notification of Respondent Default was sent to the new contact details for the Domain Name provided by OnlineNIC. A Panel was constituted on September 4, 2002, comprising a Sole Panelist, Mr. Nick Gardner (the "Panel"). A statement of acceptance and declaration of impartiality and independence has been filed by the Panel.
3.3 The date scheduled for the Panel to render its decision is September 18, 2002.
3.4 This Panel does not find there are any exceptional circumstances within paragraph 5(e) of the Rules so as to prevent this Panel determining the Complaint, notwithstanding the failure of the Respondent to lodge a Response. Details of these proceedings have been served in accordance with the relevant requirements, namely in compliance with paragraph 2(a) of the Rules.
4. Relief Sought
4.1 The Complainant requests that the Domain Name be transferred to it from the Respondent.
5. Factual Background
5.1 A registered US trade mark was granted for "utilikilts" by the United States Patent and Trade Mark Office on November 6, 2001 (Registration No. 2,504,115 in class 35). The certificate provided shows the proprietor as Steven J. Villegas, a United States citizen having an address in Seattle.
5.2 It appears from the "whois" printout provided by the Complainant, dated July 29, 2002, that the Respondent registered the Domain Name on July 4, 2002.
5.3 The Complainant began these proceedings on July 29, 2002.
6. The Complainant’s Contentions
6.1 These may be summarised as follows:
a) The Domain Name is confusingly similar to the Complainant’s company name, primary product name and trade mark;
b) The Complainant is the owner of the "utilikilts" trade mark registrations in the United States;
c) The Respondent has no rights or legitimate interests in the Domain Name and the Domain Name has been registered, and is being used, in bad faith by the Respondent;
d) The Respondent is intentionally attempting to attract for commercial gain, Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation or endorsement of that web site;
e) The Complainant has suffered commercial and reputational damage as a result of the Respondent’s use of the Domain Name;
f) The Complainant’s registered trade mark "utilikilts" has been tarnished, as customers have been misleadingly guided to a web site with adult content when they use the Domain Name;
g) The Complainant sells men's kilts to a world-wide market. The Complainant describes the utilikilt as its primary product, which it sells on the Internet. In pursuance of its Internet business, the Complainant claims that it has used both the Domain Name and <utilikilts.com>;
h) The Complainant states that it originally registered the Domain Name on June 1, 2001. The Complainant claims that due to a change in email address it was not properly notified of the lapse of the registration of the Domain Name and, as a result, it failed to re-register it;
i) The Complainant claims that the Respondent is now using the Domain Name in connection with a web site to present adult material to Internet users.
7. The Respondent’s Contentions
7.1 The Respondent has not made any submissions to this Panel.
8. Discussion and Findings
8.1 The Panel has reviewed the Complaint and the documents annexed to the Complaint. In the light of this material this Panel’s findings are set out below.
8.2 The Complaint is in the form required by the Rules and contains a declaration that it is to the best of the Complainant’s knowledge true and accurate. It is signed by Mr. William Geurts, who is described in the Complaint as the CFO of the Complainant.
8.3 The Panel notes that the Complaint makes a number of assertions for which no further evidence in support has been provided. These include the claim that the Complainant is currently trading and that its products include an item of clothing called a "utilikilt"; that the Complainant was the previous proprietor of the Domain Name; that complaints have been received from the Complainant’s customers and that the Complainant’s image has been tarnished as a result of the contents of a web site being run by the Respondent by reference to the Domain Name.
8.4 Even in the absence of any Response being made, Complainants still need to establish on the balance of probabilities that the tests set out at paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy (the "Policy") have been satisfied. The obligation remains the same whether Complaints are submitted by lay Complainants (as appears to be the case here) or by legal advisers on their behalf.
8.5 The Domain Name is confusingly similar to a registered US trade mark, namely, "utilikilts". However, no explanation has been given as to the rights the Complainant asserts in this trade mark, for example whether the mark is used under licence from the named proprietor, Mr. Villegas. As to whether the Complainant has any rights in "utilikilts" as an unregistered trade mark, the Panel is prepared to find that the Complainant has established rights in "utilikilts". The Panel does so on the basis of the information provided in the Complaint as to the Complainant’s history and trading activities and taking note of Mr. Geurts’ signed completion of the declaration forming part of the Complaint and the lack of any challenge to these matters from the Respondent, despite it having had an opportunity to do so.
8.6 From the evidence available, it does not appear that the Respondent had any legitimate basis to register the Domain Name.
8.7 The Panel considers that the Respondent’s use of the Domain Name as set out by the Complainant amounts to an attempt to attract for commercial gain Internet users to the web site at the Domain Name by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the content displayed. In this regard the Panel accepts Mr. Geurts’ completion of the Complaint as evidence that (a) the Complainant’s existing registration of the Domain Name lapsed as a result of a mistake; (b) it was registered by the Respondent shortly thereafter; and (c) it was linked to a site containing adult content. It also seems to the Panel that the word "utilikilt" is a made up word which is not likely to have any significance other than in relation to the Complainant’s business. In these circumstances, absent any Response, the Panel infers that the Respondent was attempting to attract such users.
8.8 The Panel therefore concludes that the Complaint should succeed and that the name was registered and is being used in bad faith.
In the light of the above findings, the Panel’s decision is as set out below.
9.1 The Domain Name is confusingly similar to a registered trade mark although the Complainant has not explained its rights in this mark. The Domain Name is however also confusingly similar to the Complainant’s unregistered rights. (See paragraph 4(a)(i) of the Policy).
9.2 The Respondent has no rights or legitimate interests in the Domain Name (see paragraph 4(a)(ii) of the Policy).
9.3 The Domain Name was registered and is being used in bad faith (see paragraph 4(a)(iii) and paragraph 4(b)(iv) of the Policy).
9.4 This Panel directs that the Domain Name be transferred to the Complainant.
Dated: September 18, 2002