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ADMINISTRATIVE PANEL DECISION
Cox & Kings (India) Private Limited v. Praveen Singh
Case No. D2007-0211
1. The Parties
The Complainant is Cox & Kings (India) Private Limited, Mumbai, India, represented by Himanshu W. Kane, India.
The Respondent is Praveen Singh, New Delhi, India.
2. The Domain Name and Registrar
The disputed domain name <dekhoindia.com> 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 February 13, 2007.
On February 16, 2007, the Center transmitted by e mail to Direct Information Pvt Ltd d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the domain name at issue.
On February 17, 2007, Direct Information Pvt Ltd d/b/a PublicDomain Registry.com transmitted by e-mail to the Center its verification response confirming that the Respondent is listed as the registrant and providing contact details.
In response to a notification by the Center dated March 2, 2007, that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on March 6, 2007. The Center verified that the Complaint, together with the amendment to 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 March 8, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 28, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 29, 2007.
The Center appointed Dr. Vinod K. Agarwal, Advocate and Solicitor, Former Law Secretary to the Government of India as the sole panelist in this matter on April 16, 2007. 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
From the Complaint and the various annexure to it, the Panel has found the following facts:
The Complainant is an old and well-established organization dealing in travel related services in different countries including India. It was founded in the year 1758. The Complainant has been providing various facilities to its customers traveling from India to other countries, such as, air and train bookings, hotel bookings, car hire facilities, conducted tours, group package holidays, arranging cruises and tours, holiday planning, sightseeing, currency exchanges, etc.
The Complainant is a registered owner of the trademark DUNIA DEKHO in respect of (a) class 18 goods, that is, “Leather and imitation of leather, animal skins, hides, trunks and raveling bags, etc.; class 16 goods, such as paper, cardboard, bookbinding material, photographs, stationary, artists materials, typewrites, etc;” the Complainant’s mark BHARAT DEKHO is also registered for class 39 services, such as, adventure tourism, airport transport, arranging cruises and tours, holiday planning, sightseeing, etc.
The Respondent did not reply to the Complainant’s contentions. Hence, the Respondent’s activities are not known.
5. Parties’ Contentions
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are applicable to this dispute.
In relation to element (i), the Complainant contends that the Complainant’s aforesaid trademarks contain combination of the words “bharat & dekho” and “duniya & dekho”, which no body has used till date especially with respect to travel and tourism related services. The Respondent has reversed the sequence of words from “bharatdekho” to “dekhoindia”. Meaning of both words i.e. “bharatdekho” and “dekhoindia” is exactly identical. (“dekhoindia” is an Indian word meaning “See India”) The words “dekho india” conveys the same idea and meaning as the words “bharat dekho”.
Thus, the Complainant contends that the domain name <dekhoindia.com> is very much identical or confusingly similar to the name and trademarks of the Complainant.
In relation to element (ii), the Complainant contends that the Respondent (as an individual, business, or other organization) has not been commonly known by the domain name <dekhoindia.com>.
Further, the Complainant and Respondent are in the same business. Therefore, there is every possibility that by use of the said domain name the Respondent may mislead the customers of the Complainant. Thus, the Respondent is not making a legitimate or fair use of the said domain name. The members of the public associate the said marks with the Complainant. The Respondent registered the domain name for the sole purpose of creating confusion and misleading the general public and the customers of the Complainant and for encashing the goodwill and reputation of the Complainant.
Regarding the element (iii), the Complainant contends that the main object of registering the domain name <dekhoindia.com> by the Respondent is to mislead the general public and the customers of the Complainant.
The intention of the Respondent is clearly to divert the customers of the Complainant. The Complainant has stated that the use of a domain name that appropriates a well known trademark to promote competing or infringing products cannot be considered a “bona fide offering of goods and services”. See the decisions of The Chip Merchant, Inc. v. Blue Star Electronics, d/b/a Memory World,
WIPO Case No. D2000-0474 and Yamaha Corporation v. Zhoulei,
WIPO Case No. D2004-0126 and Organization Committee for the World Championship of Alpine Ski in 2009 v. Kenny E. Granum,
WIPO Case No. D2006-0264.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel as to the principles the Panel is to use in rendering its decision. It says that, “A panelist shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
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 interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The present dispute pertains to the domain name <dekhoindia.com>. The Complainant has been using the marks BHARAT DEKHO (Indian word meaning “See India”. In fact, “Bharat” is the constitutionally recognized name of India) and DUNIA DEKHO (an Indian word meaning “See the World”). The meaning of “dekhoindia” is the same as the Complainant’s trademark BHARAT DEKHO, only the sequence of the words has been reversed. These marks are frequently advertised by the Complainant in various newspapers in India.
In The New York Times Company v. New York Internet Services,
WIPO Case No. D2000-1072, it was held that the domain name <newyorktimes.com> and the newspaper “The New York Times” are identical on their face. Similarly, in Estйe Lauder Inc. v. estelauder.com, estelauder.net and Jeff Hanna, WIPO Case No. D2000-0869, the Panel compared the respondent’s domain name <estelauder.com> with the complainant’s trademark ESTEE LAUDER and came to the conclusion that the absence of one “e” was the only difference and concluded that the respondent’s domain name is “confusingly similar to the Complainant’s mark”. Similar conclusions have been arrived at by the Panels in the cases Pharmacia & Upjohn AB v. Dario H. Romero,
Case No. D2000-1273 (“pharmacia” and “pharmaciae”) and Briefing.com Inc v. Cost Net Name Manager,
WIPO Case No. D2001-0970.
Thus, the Panel finds that the domain name is confusingly similar to the registered trademark of the Complainant. Paragraph 4(a)(i) of the Policy is satisfied
B. Rights or Legitimate Interests
According to Paragraph 4(c) of the Policy, the Respondent may demonstrate its rights to or legitimate interest in the domain name by proving any of the following circumstances:
(i) before any notice to the Respondent of the dispute, the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) The Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent has not filed any response in this case. There is no evidence to suggest that the Respondent has become known by the disputed domain name anywhere in the world. Further, the disputed domain name is not used by the Respondent for the bona fide offering of goods or services. Based on the default and the evidence in the Complaint, the Panel finds that the above circumstances do not exist in this case and that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant has relied on the case Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com”,
WIPO Case No. D2000-0847, in which it has been held that, “use which intentionally trades on the fame of another cannot constitute a bona fide offering of goods and services. To conclude otherwise would mean that a Respondent could rely on intentional infringement to demonstrate a legitimate interest, an interpretation which is obviously contrary to the intent of the Policy”.
See also Pavillion Agency Inc., Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd., and Glenn Greenhouse.,
WIPO Case No. D2000-1221.
Further, in view of the fact that the Complainant has not licensed or otherwise permitted the Respondent to use its name or trademark or to apply for or use the domain name incorporating said name, the Panel finds that the Respondent has no rights or legitimate interests in the domain name. Paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration or use of the domain name in bad faith:
(i) Circumstances indicating that the Respondent has registered or 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 documented out-of-pocket costs directly related to the domain name; or
(ii) The Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that it has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on its website or location.
The Complainant contends that since the Respondent is also in the same business as the Complainant, the domain name was registered or acquired primarily for the purpose of misleading or diverting the customers of the Complainant. This and other information submitted by the Complainant leads to the presumption that the domain name in dispute was registered and used by the Respondent in bad faith. Accordingly the Panel finds that the Respondent registered and used the domain name in bad faith. Paragraph 4(a)(iii) of the Policy is satisfied.
In light of the forgoing findings, namely, that the domain name is confusingly similar to a mark in which the Complainant has rights, 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, in accordance with Paragraphs 4(i) of the Policy and Rule 15 of the Rules, the Panel orders that the domain name <dekhoindia.com> be transferred to the Complainant.
Vinod K. Agarwal
Dated: April 30, 2007