Emaar Properties PJSC v. A Gomez
Claim Number: FA1511001646786
Complainant is Emaar Properties PJSC (“Complainant”), represented by Pallavi Mehta Wahi of K&L Gates LLP, Washington, USA. Respondent is A Gomez (“Respondent”), Philippines.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <emaarjameel.com>, registered with Fabulous.com Pty Ltd.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 12, 2015; the Forum received payment on November 12, 2015.
On November 15, 2015, Fabulous.com Pty Ltd confirmed by e-mail to the Forum that the <emaarjameel.com> domain name is registered with Fabulous.com Pty Ltd and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd has verified that Respondent is bound by the Fabulous.com Pty Ltd 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 November 19, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 9, 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@emaarjameel.com. Also on November 19, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On December 17, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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. 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
Policy ¶ 4(a)(i)
Complainant has rights in the EMAAR mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,797,685, registered on June 1, 2010). Respondent’s <emaarjameel.com> domain name is confusingly similar to the EMAAR mark because it contains the mark, along with the descriptive term “jameel” and the generic top-level domain (“gTLD”) “.com.”
Policy ¶ 4(a)(ii)
Respondent is not commonly known by the <emaarjameel.com> domain name, because the available WHOIS information lists “A Gomez” as Registrant, and because Complainant has not authorized it to use the EMAAR mark. Respondent lacks rights and legitimate interests in the domain because the resolving website is used only to offer the domain for sale.
Policy ¶ 4(a)(iii)
Respondent uses the <emaarjameel.com> domain name in bad faith because it uses the resolving website only to offer the domain for sale. Respondent registered the <emaarjameel.com> domain name in bad faith because it did so with actual or constructive knowledge of Complainant’s rights in the EMAAR mark and because the registration constituted opportunistic bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant Emaar Properties PJSC of Dubai is the owner of numerous domestic and international registrations for the mark EMAAR and variations thereof which constitute the EMAAR family of marks. Complainant has used the EMAAR mark continuously since 1997 in connection with its provision of goods and services related to its global construction and real estate business.
Respondent is A Gomez, of Butuan City, Philippines. Respondent’s registrar’s address is listed as Queensland, Australia. The Panel notes that the <emaarjameel.com> domain name was created on or about February 18, 2014.
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.
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. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant claims rights in the EMAAR mark through its registration with the USPTO (Reg. No. 3,797,685, registered on June 1, 2010). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (concluding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO). The Panel here finds that Complainant has rights in the EMAAR mark under Policy ¶ 4(a)(i).
Complainant alleges that Respondent’s <emaarjameel.com> domain name is confusingly similar to the EMAAR mark because it contains the mark, along with the term “jameel” and the gTLD “.com.” Complainant claims that the term “jameel” is descriptive. Based on the common meaning of the term in Complainant’s language the Panel agrees that “jameel” is descriptive, and finds that Respondent’s <emaarjameel.com> domain name is confusingly similar to Complainant’s EMAAR mark pursuant to Policy ¶ 4(a)(i). See Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant contends that Respondent is not commonly known by the <emaarjameel.com> domain name because the available WHOIS information lists “A Gomez” as Registrant, and because Complainant has not authorized it to use the EMAAR mark. The Panel notes that Respondent has failed to provide any evidence to indicate being commonly known by the domain name. As the Respondent has failed to rebut Complainant’s contentions, the Panel finds that Respondent is not commonly known by the <emaarjameel.com> domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant argues that Respondent lacks rights or legitimate interests in the <emaarjameel.com> domain name because Respondent offers the domain for sale. Complainant has provided a screenshot of the resolving website, displaying the following language:
If you have any Enquiries or wish to Purchase a Particular Domain Name then please email us at the below address and we will pass your email to the appropriate owners (our clients) for reply. You will get the Best $ Price via ourselves ‼ and we use Escrow service to ensure the domain is transferred to you before funds ($) are released to our client sellers. You must include in your enquiry your Company Name & email and US$ offer for the Domain
Click on this link to send email: sales@youcanbuythiswebsite.com
The Panel finds that Respondent lacks rights or legitimate interests in the <emaarjameel.com> domain name under Policy ¶ 4(a)(ii). See Deutsche Lufthansa AG v. Future Media Architects, Inc., FA 1153492 (Nat. Arb. Forum Apr. 17, 2008) (“The Panel finds that an offer to rent or lease the <lh.com> domain name supports findings of a lack of rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As the Respondent has not provided a response to this action, the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant alleges that Respondent uses the <emaarjameel.com> domain name in bad faith because it uses the resolving website only to offer the domain for sale. Complainant has provided a screenshot in which the domain is offered for sale. The Panel finds that Respondent uses the <emaarjameel.com> domain name in bad faith under Policy ¶ 4(b)(i). See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”).
Complainant further claims that Respondent registered the <emaarjameel.com> domain name in bad faith because its registration constituted opportunistic bad faith. Complainant has provided publicized information about a joint business arrangement between itself and “Abdul Latif Jameel,” under the name “Emaar Jameel,” dated February 18, 2014. WHOIS data shows that February 18, 2014 is the same day that the <emaarjameel.com> domain name was registered. The Panel finds that Respondent registered the <emaarjameel.com> domain name in bad faith under Policy ¶ 4(a)(iii). See Sota v. Waldron, D2001-0351 (WIPO June 18, 2001) (finding that the respondent’s registration of the <seveballesterostrophy.com> domain name at the time of the announcement of the Seve Ballesteros Trophy golf tournament “strongly indicates an opportunistic registration”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <emaarjameel.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: December 31, 2015
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