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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Elders Limited v. Australia Online

Case No. D2007-1027

 

1. The Parties

The Complainant is Elders Limited, Adelaide, Australia (the “Complainant”), represented by Kelly & Co. Lawyers, Australia.

The Respondent is Australia Online, Ansonia Station, New York, United States of America (the “Respondent”).

2. The Domain Name and Registrar

The disputed domain name, <elders.com> (the “Domain Name”), is registered with Network Solutions, LLC. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 13, 2007. On July 17, 2007, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

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 July 26, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 15, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 16, 2007.

The Center appointed Tony Willoughby as the sole panelist in this matter on August 22, 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

The Complainant is a very well-known Australian corporation. It claims to have been trading under the name, “Elders”, for over 150 years.

The Complainant is the registered proprietor of a number of ELDERS logo trade mark registrations, the earliest of which dates back to 1994. The registrations cover a wide variety of goods and services in the fields of agriculture, real estate and rural affairs.

The Respondent registered the Domain Name on April 12, 1996.

As at April 23, 2007, the Domain Name was connected to a directory site hosted by the Registrar and featuring “sponsored listings” of and/or links to primarily Australian real estate and home loan sites.

As at June 19, 2007, the Domain Name was connected to a site headed with the Domain Name and containing four paragraphs of text seemingly devoted to the elderly. It featured four links, namely to “www.aarp.org”, “www.elderweb.com”, “www.ElderCareLink.com” and “www.elderhostel.org”.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is identical to its ELDERS logo trade mark registrations, details of which are appended to the Complaint. It also claims to have several domain names featuring the “Elders” name, including <elders.com.au>.

The Complainant exhibits the result of a Google search against “Elders”. The first nine entries concern the Complainant, the first eight featuring links to various websites of the Complainant.

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant refers to the facts and matters, which under paragraph 4(c) of the Policy shall constitute rights or legitimate interests in respect of the Domain Name for the purposes of paragraph 4(a)(ii) of the Policy, but contends that none of them are applicable. The Complainant has no connection of any kind with the Respondent and there is nothing to suggest that the Respondent is commonly known by the name “Elders”.

The Complainant contends that the current website to which the Domain Name is connected is not indicative of a bona fide offering of goods or services. The Complainant asserts that on May 23, 2007, the Complainant sent a cease and desist letter to the Respondent at which time the Respondent’s website was the Registrar’s directory site featuring sponsored links largely to competitors of the Complainant. The Respondent did not respond to that letter. The Complainant produces evidence to show that the Respondent’s website underwent a change on May 30, 2007 (i.e. the change to the current website seemingly devoted to the elderly) and contends that the change was a direct result of the Complainant’s cease and desist letter and is not a bona fide site, but simply a device intended to avoid the consequences of a complaint under the Policy.

The Complainant contends that the Respondent registered the Domain Name in bad faith and is using it in bad faith. The Complainant contends that it is reasonable to infer from the existence of the sponsored links on the Respondent’s original website that the Respondent was earning money via those links.

The Complainant contends that from the nature of the sponsored links on the Respondent’s original website that the Respondent knew of the Complainant. Indeed, the Complainant contends that some of the subsidiary links on the site were unauthorized links to the Complainant’s websites.

The Complainant contends that all the sub-paragraphs of paragraph 4(b) of the Policy are applicable.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, 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 in bad faith and is being used in bad faith.

As indicated above, the Respondent has not responded to the Complaint. Where a party defaults, paragraph 14 of the Rules applies. Paragraph 14 reads as follows:

(a) In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the complaint.

(b) If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.

The Complainant is still required to prove its case, but where the Complainant makes a reasonable assertion of fact (albeit not supported by documentary evidence), the Panel will accept that unchallenged assertion as fact.

B. Identical or Confusingly Similar

The Complainant asserts that the Domain Name is identical to a trade mark in which it has rights. The Complainant is likely to have common law rights in respect of its name, but there is no evidence filed to support that proposition and it is not necessary for the Panel to make that finding. What is clear is that the Complainant has trade mark registrations for its logo, which is the name “Elders” in a logo form.

The Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights.

C. Rights or Legitimate Interests

The Complainant has made out a strong prima facie case under this head (see section 5A above). The Panel would have liked to have seen the cease and desist letter, which the Complainant contends prompted the change in the Respondent’s website from a sponsored links directory site featuring links to its competitors to a website purporting to deal with the affairs of the elderly.

However, in the absence of a challenge from the Respondent, the Panel is prepared to accept the Complainant’s contention in this regard. Certainly, the change in website content was dramatic and had to have been prompted by something. Moreover, the style of the current site smacks of having been created in haste and without much concern for its substance.

In essence, the Complainant’s primary contention is that the Respondent registered the Domain Name with full knowledge of the Complainant and with a view to deriving commercial gain from visitors to its site using the sponsored links. The current site is simply a device to try and avoid an adverse finding under the Policy.

The Complainant having made out a prima facie case it is for the Respondent to answer it. The Respondent has elected not to do so. In the circumstances, the Panel finds it difficult to conceive of any way in which the Respondent could reasonably be said to have 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.

D. Registered and Used in Bad Faith

If the Whois record for the Domain Name filed with the Complaint is accurate, the Domain Name appears to have been first created and registered over a decade ago. It is not clear from the Whois record whether the current listed Registrant, the Respondent, was the original registrant of the Domain Name. It being such an obvious domain name for the Complainant, it seems strange to the Panel that nothing has been done about the registration before now. Indeed, the Panel believes that there may well be a history associated with the Domain Name, which is not disclosed in the papers before him. However, it is not for the Panel to speculate on matters which might be wholly irrelevant. The Respondent may only have acquired the Domain Name relatively recently. Had there been a point of substance to make, presumably the Respondent would have filed a Response.

The Complainant’s primary contention as set out in C. above amounts to an allegation that the Respondent registered the Domain Name with the Complainant in mind and with the object of diverting Internet users to the Respondent’s site for commercial gain. The ‘diversion’ stems from the fact that a substantial number of Internet users are likely to visit the Respondent’s site, believing it to be a site of or associated with the Complainant.

In the circumstances, the Panel believes this to be the probable intention of the Respondent and, in the absence of a challenge from the Respondent, finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.

7. Decision

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, <elders.com>, be transferred to the Complainant.

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Tony Willoughby
Sole Panelist

Dated: August 30, 2007