Paragraph 4(a) of the Policy requires that the Complainant proves each of the following three elements to obtain an order that the disputed domain name should be transferred or revoked:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel will proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied in these proceedings.
RIGHTS
The issue of identity / confusing similarity was thoroughly discussed in the previous proceedings related to the disputed domain name (CAC case no.102537) which found that the disputed domain name is not confusingly similar to Complainant's Trademark due to generally low distinctiveness of Complainant's Trademark. On the other hand, the Panel in CAC case no. 104149 took a different view finding that the domain name <affordablepaper.company> is confusingly similar to the Complainant’s Trademark.
However, given that (as discussed below) the Panel in this case found that the Complainant failed to establish lack of Respondent’s rights or legitimate interest in the disputed domain name and bad faith of the respondent upon registration and use of the disputed domain name, the Panel did not examine this issue further.
NO RIGHTS OR LEGITIMATE INTERESTS / BAD FAITH OF THE RESPONDENT
The Complainant provides a "cheap essay writing service: original papers for $7 per page" as advertised on Complainant's website under the domain name <affordablepapers.com>. Under the disputed domain name, there appears to be a website offering similar services to those of the Complainant, i.e. writing of academic papers for a fee. The Panel emphasizes that this type of service and the way it is utilized by undoubtedly vast majority of its users (i.e. having someone else write a paper which the student or scientist then submits as his own work) is highly unethical in most academic settings and illegal in many jurisdictions, as there is a clear requirement that each student or scientist should write his own papers.
Therefore, the question arises how should such unethical and illegal nature of the services provided by the Complainant be reflected in these proceedings as in domain name disputes there is no established application of the “contra bonos mores” doctrine used in several jurisdictions to deny enforcement of a claim which is apparently contradicting shared basic moral values of society. Nevertheless, in the opinion of the Panel, this means that the circumstances relating to the (lack of) legitimate interest and bad faith of the Respondent have to be interpreted against the Complainant based on simple logic that someone who acts unethically (and illegally) is hardly in position to require ethical (and legal) conduct of others.
The Panel found that there is a website under this disputed domain name advertising similar (and similarly unethical and illegal) services as those of the Complainant. Therefore, using the same low moral bar the Complainant set by providing its services in the first place the Respondent has the same “legitimate” interest to the disputed domain name and is on the same level of bad faith as the Complainant in relation to its domain name <affordablepapers.com>. Also, the Panel noted that the disputed domain name was registered prior to application for Complainant's Trademark which casts further significant doubt on Complainant's position in this dispute.
Therefore, the Panel concludes that the Complainant failed to show that the Respondent lacks any right or legitimate interest to the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy) and that the disputed domain name has been registered and is being used in bad faith by the Respondent (within the meaning of paragraph 4(a)(iii) of the Policy).
BAD FAITH OF THE COMPLAINANT
Moreover, the Panel also found that the complaint has been brough in bad faith pursuant to paragraph 15 (e) of the Rules for Uniform Domain Name Dispute Resolution Policy. The fact that the Complainant (i) has brought the complaint based on the trademark which is used for unethical and illegal purposes by the Complainant and which was registered later than the disputed domain name and (ii) "conveniently" omitted to mention the previous CAC Case no. 102537 where the claim of the Complainant's legal predecessor based on the same facts and legal arguments was denied, constitutes, in the opinion of the Panel, clear evidence of the abuse of the UDRP proceedings by the Complainant.
|