Rowse Honey Ltd v. Dabur India Ltd a/k/a
Chetan Burman
Claim
Number: FA0306000162051
Complainant is Rowse Honey Ltd, Wallingford, Oxon,
UNITED KINGDOM (“Complainant”) represented by Stuart A. Bailey.
Respondent is Dabur India Ltd a/k/a Chetan Burman, Sahibabad, INDIA (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <rowsehoney.com>, registered with Register.Com.
The
undersigned certifies that he has acted independently and impartially and to
the best of his knowledge has no known conflict in serving as Panelist in this
proceeding.
John
J. Upchurch as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on June 6, 2003; the Forum received a hard copy of the Complaint
on June 12, 2003.
On
June 10, 2003, Register.Com confirmed by e-mail to the Forum that the domain
name <rowsehoney.com> is registered with Register.Com and that
Respondent is the current registrant of the name. Register.Com has verified
that Respondent is bound by the Register.Com registration agreement and has
thereby agreed to resolve domain-name disputes brought by third parties in
accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the
"Policy").
On
June 19, 2003, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 9, 2003 by which Respondent could file a Response to the Complaint, was
transmitted to Respondent via e-mail, post and fax, to all entities and persons
listed on Respondent's registration as technical, administrative and billing
contacts, and to postmaster@rowsehoney.com by e-mail.
Respondent
submitted an e-mail on June 23, 2003 that was insufficient to qualify as a
formal Response. However, the
communication stated that Respondent did not claim an interest in the disputed
domain name and was willing to transfer it to Complainant.
Having
not received a sufficient Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On
July 16, 2003, pursuant to Complainant's request to have the dispute decided by
a single-member Panel, the Forum appointed John J. Upchurch 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."
Therefore, the Panel may issue its decision based on the documents
submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's
Supplemental Rules and any rules and principles of law that the Panel deems
applicable, without the benefit of any Response from Respondent.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Complainant appears to assert that
Respondent’s <rowsehoney.com> domain name is confusingly similar
to Complainant’s <rowsehoney.co.uk> domain name. Complainant does not
make a clear assertion that Respondent’s <rowsehoney.com> domain
name is identical or confusingly similar to a mark that belongs to
Complainant.
2. Respondent does not have any rights or
legitimate interests in the <rowsehoney.com> domain name.
3. Respondent registered and used the <rowsehoney.com>
domain name in bad faith.
B. Respondent
Respondent
submitted an e-mail that was insufficient to qualify as a Response. However, in the e-mail Respondent
communicated to the Forum that Respondent had no interest in the domain name
and was willing to transfer it to Complainant.
Complainant
is a major honey packer in the United Kingdom (“UK”) and is currently the
leading honey brand in the UK.
Complainant was incorporated under the name "ROWSE HONEY
LIMITED" with the Registrar of Companies for England and Wales on
September 14, 1971.
Also,
Complainant registered the <rowsehoney.co.uk> domain name approximately
five years prior to this proceeding (i.e. 1998). The domain name is used by Complainant to market its products to
Internet users.
Respondent,
Dabur India Ltd, is involved in the honey packing industry. Respondent registered the <rowsehoney.com> domain name on August 6, 1999. Respondent has not developed a website for
the disputed domain name. Respondent has
admitted through correspondence with the Forum that it does not have an interest
in the <rowsehoney.com> domain name and is willing to transfer
it to Complainant.
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."
In view of
Respondent's failure to submit a Response, the Panel shall decide this
administrative proceeding on the basis of Complainant's undisputed
representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and
draw such inferences it considers appropriate pursuant to paragraph 14(b) of
the Rules.
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.
Although
Complainant has not provided strong arguments in support of its allegations
that Respondent’s disputed domain name is identical or confusingly similar to a
mark that belongs to Complainant, the Respondent has indicated in an e-mail
that it has no interest in the <rowsehoney.com>
domain name and is willing
to transfer the domain name to Complainant.
Therefore, the Panel
concludes that Respondent has accepted that Complainant has rights in the ROWSE
HONEY mark and that Respondent’s registered domain name is identical or
confusingly similar to Complainant’s mark.
See Desotec N.V. v. Jacobi
Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that Respondent’s
failure to submit a formal response combined with its agreement at the onset of
the Complaint to transfer the disputed names satisfies all the requirements of
Policy ¶ 4(a)); see also Charles
Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it
appropriate for the Panel to draw adverse inferences from Respondent’s failure
to reply to the Complaint).
Respondent’s <rowsehoney.com>
domain name is identical to Complainant’s ROWSE HONEY mark because the
disputed domain name fully incorporates Complainant’s mark with the exception
that it eliminates the space between “ROWSE” and “HONEY”. Respondent’s elimination of the space in the
ROWSE HONEY mark is insufficient to avoid finding that the disputed domain name
is identical to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16,
2000) (finding that the domain name <wembleystadium.net> is identical to
the WEMBLEY STADIUM mark); see also Tech.
Props., Inc. v. Burris, FA 94424 (Nat. Arb. Forum May 9, 2000) (finding
that the domain name <radioshack.net> is identical to Complainant’s mark,
RADIO SHACK).
The Panel finds
that Policy ¶ 4(a)(i) has been satisfied.
Respondent’s
willingness to transfer the disputed domain name is evidence that it lacks
rights or legitimate interests in the <rowsehoney.com> domain name. See Marcor Int’l v. Langevin, FA 96317 (Nat. Arb. Forum
Jan. 12, 2001) (Respondent’s willingness to transfer the domain name at issue
indicates that it has no rights or legitimate interests in the domain name in
question); see also
Colgate-Palmolive Co. v. Domains For Sale, FA 96248 (Nat. Arb. Forum
Jan. 18, 2001) (Respondent’s willingness to transfer the domain name at issue
to Complainant, as reflected in its Response, is evidence that it has no rights
or legitimate interests in the domain name).
Furthermore, the
WHOIS information for the disputed domain name lists Respondent, Dabur India
Ltd a/k/a Chetan Burman, as the registrant; however, it fails to establish
Respondent as an “individual, business, or other organization” commonly known
by the <rowsehoney.com> domain name. Also, Respondent is not affilitated with Complainant and the
record fails to establish that Respondent is authorized or licensed to register
or use domain names that incorporate the ROWSE HONEY mark. Therefore, Respondent does not have rights
or legitimate interests in the disputed domain name pursuant to Policy ¶
4(c)(ii). See Tercent, Inc.
v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in
Respondent’s WHOIS information implies that Respondent is ‘commonly known by’
the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii)
does not apply); see also Compagnie de Saint Gobain v. Com-Union
Corp., D2000-0020 (WIPO
Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was
not commonly known by the mark and never applied for a license or permission
from Complainant to use the trademarked name).
In addition,
Respondent is passively holding the disputed domain name because it was
registered in 1999 and still has not been developed. Respondent’s passive holding of the disputed domain name is
evidence that Respondent lacks rights or legitimate interests in the disputed
domain name. See Ziegenfelder Co. v. VMH Enters., Inc.,
D2000-0039 (WIPO Mar. 14, 2000) (finding that failure to provide a product or
service or develop the site demonstrates that Respondents have not established
any rights or legitimate interests in the domain name); see also Am. Home Prod. Corp. v. Malgioglio,
D2000-1602 (WIPO Feb. 19, 2001) (finding no rights or legitimate interests in
the domain name <solgarvitamins.com> where Respondent merely passively held
the domain name); see also LFP, Inc. v. B & J Props., FA
109697 (Nat. Arb. Forum May 30, 2002) (recognizing that in certain instances
excusable delays will inevitably arise, but noting that those delays must be
quantifiable and limited; they cannot extend indefinitely).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s
willingness to transfer the <rowsehoney.com> domain name combined
with the fact that Respondent has passively held the domain name is evidence of
bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Marcor Int’l v. Langevin, FA
96317 (Nat. Arb. Forum Jan. 12, 2001) (Respondent’s registration and use of the
domain name at issue coupled with its expressed willingness to transfer the
name amply satisfies the bad faith requirements set forth in the ICANN Policy);
see also Vertical Solutions Mgmt., Inc. v. Webnet-marketing, Inc.,
FA 95095 (Nat. Arb. Forum July 31, 2000) (finding Respondent’s willingness to
transfer and its failure to develop the site are evidence of its bad faith
registration and use).
Furthermore, due
to Respondent’s failure to contest the allegations in the Complaint, the Panel
presumes that Respondent registered the <rowsehoney.com> domain
name with the purpose of disrupting Complainant’s business because both are
engaged in the sale of honey.
Respondent’s disputed domain name, which fully incorporates
Complainant’s mark, may cause confusion for Complainant’s customers. This confusion disrupts Complainant’s
business because Complainant may lose potential business if Internet users
access the undeveloped <rowsehoney.com> domain name and conclude
that Complainant does not host a developed website. See Charles Jourdan
Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate
for the Panel to draw adverse inferences from Respondent’s failure to reply to
the Complaint); see also Gen.
Media Communications, Inc. v. Vine Ent., FA 96554 (Nat. Arb. Forum Mar. 26,
2001) (finding bad faith where a competitor of Complainant registered and used
a domain name confusingly similar to Complainant’s PENTHOUSE mark to host a
pornographic web site); see also Lubbock
Radio Paging v. Venture Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23,
2000) (concluding that domain names were registered and used in bad faith where
Respondent and Complainant were in the same line of business in the same market
area).
The Panel finds
that Policy ¶ 4(a)(iii) has been satisfied.
Having
established all three elements required under the ICANN Policy, the Panel
concludes that relief shall be GRANTED.
Accordingly, it
is Ordered that the <rowsehoney.com> domain name be TRANSFERRED
from Respondent to Complainant.
John J. Upchurch , Panelist
Dated:
July 30, 2003
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