A. Identical or Confusingly Similar
The first element of the Policy requires a complainant first, to establish that it has rights in a mark, and further, that the disputed domain name is identical or confusingly similar to such mark. Contrary to the Respondent's assertions, the filing/priority date, date of registration, and date of claimed first use, are not considered relevant to the first element test. These factors may however bear on a panel's further substantive determination under the second and third elements; see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.1.2. The Panel finds that the Complainant has established rights in the MEIRO trade mark, as reflected in its registrations for the mark listed above. The disputed domain name incorporates the textual elements of the Complainant's trade mark in their entirety and without alteration. The Panel finds that the disputed domain name is identical to the Complainant's trade mark. The Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant case under the second element is based on the notion that the disputed domain name has been registered speculatively, and that due to the identity between the disputed domain name and the Complainant's trade mark, that there is a high risk of implied affiliation between the Complainant's mark and the links published on the website at the disputed domain name.
Conversely, the Respondent argues that the disputed domain name was registered as part of its domain name portfolio comprising a variety of descriptive or geographic domain names, including the disputed domain name which is said to translate to "as beautiful" in Chinese.
As noted in WIPO Overview 3.0, section 2.10.1 "Panels have recognized that merely registering a domain name comprised of a dictionary word or phrase does not by itself automatically confer rights or legitimate interests on the respondent; panels have held that mere arguments that a domain name corresponds to a dictionary term/phrase will not necessarily suffice. In order to find rights or legitimate interests in a domain name based on its dictionary meaning, the domain name should be genuinely used, or at least demonstrably intended for such use, in connection with the relied-upon dictionary meaning and not to trade off third-party trade mark rights."
In the present case, while the disputed domain name may translate to "as beautiful" in Chinese, there is no suggestion that the disputed domain name has been used in such a way that might confer rights or legitimate interests on the Respondent in relation to its descriptive meaning. The sponsored links appearing at the web page to which the disputed domain name resolves do not have any apparent connection to the claimed meaning of the disputed domain name. At the same time, there is nothing to suggest that by using the disputed domain name, the Respondent has sought to create any active association between the disputed domain name and the Complainant's trade mark.
Notwithstanding the above, given that the Complaint has failed under the third element, the Panel has not found it necessary to proceed to a determination under paragraph 4(a)(ii) of the Policy.
C. Registration and Use in Bad Faith
The third element of the Policy requires a complainant to prove registration and use of a disputed domain name in bad faith. Failure to prove one will result in denial of the Complaint.
As noted above, the disputed domain name was registered on 22 June 2002. The registration of the disputed domain name predates any registered trade mark rights of the Complainant by 16 years. It is well established that where a respondent registers a domain name before a complainant's trade mark rights accrue, UDRP panels will not normally find bad faith on the part of the respondent; see WIPO Overview 3.0, section 3.8.1. The Panel finds that there is nothing in the record to suggest that the Respondent could have had the Complainant's trade mark in mind at the time of registering the disputed domain name some 16 years prior to the accrual of the Complainant's rights. The Complainant has not put forward any evidence of commercial activity under the "Meiro" name prior to June 2018, and there is nothing that would otherwise suggest that the Respondent had any awareness of the Complainant in 2002 when the disputed domain name was registered. Indeed, there is nothing to suggest that the Complainant existed at such a time. The Complainant is simply unable to prove that the disputed domain name was registered in bad faith, and therefore the Complaint fails on the third element.
The Panel finds that the Complainant has failed to meet the requirements of paragraph 4(a)(iii) of the Policy.
D. Reverse Domain Name Hijacking
RDNH is defined in the Rules as "using the UDRP in bad faith to attempt to deprive a registered domain-name holder of a domain name". Reasons for finding RDNH include facts which demonstrate that the complainant knew that it could not succeed as to any of the required three elements, such as clear knowledge of a lack of respondent bad faith, or facts which demonstrate that the complainant clearly ought to have known it could not succeed under any fair interpretation of facts reasonably available prior to filing of the complaint, including unreasonably ignoring UDRP precedent, or filing a complaint after an unsuccessful attempt to acquire the disputed domain name without a plausible legal basis; see WIPO Overview 3.0, section 4.16.
Against the factual background as set out above, the Panel considers that it was immediately apparent that the Complainant could not succeed in proving that the Respondent registered the disputed domain name in bad faith. In fact, in its pre-Complaint correspondence addressed to the Respondent, the Complainant's representative made express reference to the WIPO Overview 3.0. Notwithstanding its awareness of well-established UDRP precedent, the Complainant proceeded to bring the Complaint against the Respondent, without any reasonable prospect of success under a plain reading of the Policy. Having done so following failed negotiations to purchase the disputed domain name further affirms the Panel's conclusion that the Complainant was brought in bad faith.
|