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5 Comments:
8. Reverse Domain Name Hijacking
Respondent has requested a finding of Reverse Domain Name Hijacking (“RDNH”), which is defined in the Rules as “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name.” The Panel finds that Complainant in this proceeding has committed RDNH.
As noted above, where the Domain Name was registered prior to the establishment of trademark rights, bad faith registration usually will not be found and the Complaint usually will fail. That principle is so well established that it is among the twenty issues covered in the WIPO Decision Overview for which a consensus has been identified. When a Complainant files a UDRP Complaint that fails to heed this consensus, RDNH has been found. Primal Quest, LLC v. Gabriel Salas, WIPO Case No. D2005-1083.
In this proceeding, Complainant is represented by counsel who cited numerous UDRP decisions in support of the Complaint. This shows that, at a minimum, Complainant’s counsel is familiar with the UDRP system and with the methods of researching prior UDRP decisions. From an objective view of the facts, Complainant, employing experienced counsel, had to have known that it did not possess trademark rights prior to Respondent’s registration of the contested Domain Name.
Finally, Complainant’s long delay in bringing this action is another factor supporting a finding of its bad faith. Although laches does not necessarily bar relief in cases of genuine cybersquatting, the fact that Complainant filed this proceeding nearly ten years after the Domain Name was registered, six years after Respondent first became a distributor of Complainant’s videos, and more than two years after Complainant acknowledged to customers that it was aware of Respondent,3 all suggests that Complainant knew it had a very weak claim and nevertheless filed its UDRP Complaint in bad faith.
The Panel accordingly finds that Complainant’s actions constitute an abuse of the UDRP process.
9. Decision
For the foregoing reasons, the Complaint is denied and the Panel declares that the Complaint was brought in bad faith and thus constitutes Reverse Domain Name Hijacking.
1. The Parties
The Complainant is Dreamgirls, Inc., Tampa, Florida, United States of America, represented by Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, Los Angeles, California, United States of America.
The Respondent is Dreamgirls Entertainment, Brea, California, United States of America, represented by Joel G. MacMull, Esq., Vancouver, Canada.
7. Discussion and Findings
Complainant has the burden of proving all three of the following elements under paragraph 4(a) of the Policy:
(i) That the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) That Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) That the Domain Name has been registered and is being used in bad faith.
Failure to prove any one of these factors is fatal to the Complaint.
Bad faith registration cannot be found if the Domain Name was registered before Complainant acquired trademark rights. The consensus view of WIPO panelists, as reported in the WIPO Decision Overview, is that “when a domain name is registered before a trademark right is established, the registration of the domain name was not in bad faith because the registrant could not have contemplated the complainant’s non-existent right.” WIPO Decision Overview at § 3.1.2
Here, there is no dispute about the relevant chronology. Although Complainant states that it produced its first video under the DREAMGIRLS mark in 1994, it does not allege any distribution of that video or any other use in commerce of the DREAMGIRLS mark circa 1994. Rather, as Complainant’s predecessor noted in its trademark registration, and as Complainant’s CFO acknowledged in his declaration, the first use and first use in commerce of the DREAMGIRLS mark was on February 15, 1996. Respondent, however, registered the Domain Name more than four months earlier, in October 1995. In light of these uncontroverted facts, it is clear that Respondent did not register the Domain Name in bad faith with the intent of profiting from any goodwill inherent in Complainant’s trademark or interfering with Complainant’s use of its mark. Primal Quest, LLC v. Gabriel Salas, WIPO Case No. D2005-1083.
Even if Complainant’s activities in 1994 could give rise to trademark rights, the Panel still would conclude that Complainant has failed to prove bad faith registration because Respondent’s President submitted a sworn affidavit asserting that he had no knowledge of Complainant or its trademark at the time he registered the Domain Name. Although not every assertion of lack of knowledge is credible (see, e.g., The Knot v. In Knot We Trust LTD, WIPO Case No. D2006-0340 (respondent’s assertion that it had no knowledge of complainant or its trademark was not credible because respondent used its domain name for a wedding-related website and complainant operated a highly-successful, well-known wedding website)), Respondent’s assertion in this proceeding is credible given that Complainant made only limited use (if any) of the trademark in 1994, that Complainant’s predecessor did not file its trademark application until nearly two years after Respondent registered the Domain Name, and that Complainant has not offered any evidence that Respondent was aware of Complainant’s trademark at the time of it registered the Domain Name.
Because the Panel finds that Complainant did not establish the third element necessary to succeed in its Complaint (bad faith registration and use), the Panel does not need to address the other factors under the Policy.
9. Decision
For the foregoing reasons, the Complaint is denied and the Panel declares that the Complaint was brought in bad faith and thus constitutes Reverse Domain Name Hijacking.
David H. Bernstein
Presiding Panelist
Jonathan Hudis
Panelist
M. Scott Donahey
Panelist
Dated: August 10, 2006
WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dreamgirls, Inc. v. Dreamgirls Entertainment
Case No. D2006-0609
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