SolaQuaGen Limited v. George Papaeliopoulos
Claim Number: FA1504001616112
Complainant is SolaQuaGen Limited (“Complainant”), represented by Mark Hardiman, Newbury, United Kingdom. Respondent is George Papaeliopoulos (“Respondent”), London, United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <solaquagen.com> and <solaquagen.org>, registered with WEBFUSION LIMITED.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Luz Helena Villamil-Jimenez as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 24, 2015; the Forum received payment on April 24, 2015.
On April 27, 2015, WEBFUSION LIMITED confirmed by e-mail to the Forum that the <solaquagen.com> and <solaquagen.org> domain names are registered with WEBFUSION LIMITED and that Respondent is the current registrant of the names. WEBFUSION LIMITED has verified that Respondent is bound by the WEBFUSION LIMITED registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 30, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 20, 2015 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@solaquagen.com and postmaster@solaquagen.org. Also on April 30, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on May 20, 2015.
On June 2, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Luz Helena Villamil-Jimenez as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
The complaint is grounded on the allegation that the domain names solaquagen.com> and <solaquagen.org> are identical and confusingly similar to the trademarks owned by SolaQuaGen Limited.
Complainant further contends that Respondent does not have rights or legitimate interests in respect of the aforementioned domain names, in as much as Respondent does not manage or operate any business using the word SolaQuaGen.
Lastly, Complainant contends that the domain names in question are being used in bad faith because Respondent registered the Domain Names in his personal account at the Registrar rather than registering them in the name of Complainant.
B. Respondent
Respondent in turn states that Complainant does not legally own the Trade Marks and Logo basis of the Complaint because Complainant has not paid him for the work done in designing the Logo/Trade Mark.
Respondent also contends that he is willing to transfer the domains once he receives payment of certain amounts of money owed to him by Complainant. Moreover, Respondent calls the attention to the fact that when the company was formed it had no bank account, and he reserved the domain names quickly to prevent potential cybersquatting.
Lastly, Respondent mentions that he deems the real reason of the Complaint is to avoid dealing with other pending issues which it would prefer to ignore.
Upon reviewing the documentation of the case, the Panel finds that the domain names <solaquagen.com> and <solaquagen.org> were registered on November 3, 2008. Furthermore, the documentation submitted by Complainant does demonstrate that the company SolaQuaGen Limited was incorporated on November 11, 2008, i.e., 8 days after the registration dates of the domains.
The foregoing information confirms the contention of Respondent as regards the fact that he registered the domain names in his own name to secure protection thereof since the company had no bank account when the domains were registered. The Panel must note that Complainant company had no bank account because in fact the company did not exist by then.
The Panel also finds that according to the trademark certificate submitted by Complainant, the trademark was registered on March 2, 2014 and entered on the Register on June 27, 2014, i.e. five years and 7 months after the date the domain names were registered.
Paragraph 15(a) of the Rules instructs this Panel to "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."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The nominal portion of the trademark SolaQuaGen & Design on which the case is grounded is no doubt confusingly similar to the domain names <solaquagen.com> and <solaquagen.org>. However, in the specific case at hand similarity is not the only circumstance to be taken into account, but also the registration date of the trademark. According to the documentation provided, it is established that the trademark SolaQuaGen & Design was registered by Complainant more than 5 and a half years after the registration dates of the <solaquagen.com> and <solaquagen.org> domain names. That said, it goes without saying that since Complainant does not have trademark rights that predate the registration dates of the domains, Complainant has not proven the first substantial element required to obtain an order that the domain names be transferred.
This being the case, the Panel determines that the Complaint does not satisfy Policy ¶ 4(a)(i), and therefore declines to analyze the other two elements of the Policy. See Hugo Daniel Barbaca Bejinha v. Whois Guard Protected, FA 836538 (Nat. Arb. Forum Dec. 28, 2006) deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i).
It is also pertinent to note that the contentions made by the parties in their submissions do evidence that there is a civil dispute between them that is not to be decided on this scenario but, if they decide to go ahead with their differences, by the civil courts. See Everingham Bros. Bait Co. v. Contigo Visual, FA 440219 (Nat. Arb. Forum Apr. 27, 2005) (“The Panel finds that this matter is outside the scope of the Policy because it involves a business dispute between two parties. The UDRP was implemented to address abusive cybersquatting, not contractual or legitimate business disputes.”)
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <solaquagen.com> and <solaquagen.org> domain names REMAIN WITH Respondent.
Luz Helena Villamil-Jimenez, Panelist
Dated: June 16, 2015
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