Decisión del Panel Administrativo nº D2012-0271 of WIPO Arbitration and Mediation Center, May 10, 2012 (case Masai Clothing Company ApS v. Ashantiplc Ltd.)
| Resolution Date | May 10, 2012 |
| Issuing Organization | WIPO Arbitration and Mediation Center |
| Decision | Complaint denied |
| Dominio | Generic Domains |
Complainant is Masai Clothing Company ApS of Copenhagen, Denmark, represented by Zacco Denmark A/S, Denmark.
Respondent is Ashantiplc Ltd. of Hong Kong, SAR of the People's Republic of China, represented by John Berryhill, Ph.d., Esq., United States of America.
The disputed domain name [masai.com] is registered with Backslap Domains, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 13, 2012. On February 13, 2012, the Center transmitted by email to Backslap Domains, Inc. a request for registrar verification in connection with the disputed domain name. On February 14, 2012, Backslap Domains, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on February 20, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. On the same date, Complainant filed an amended Complaint.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced February 22, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response March 13, 2012. The Response was filed with the Center on March 13, 2012.
On March 19, 2012, Complainant sent an email communication to the Center, requesting the right to respond to the Respondent’s allegations.[1] On March 19, 2012, Respondent submitted its objection to Complainant’s request to make a supplemental filing. On the same date, the Center acknowledged receipt of Complainant’s request and Respondent’s objection, and informed the parties that the Complainant’s email communication as well as the Respondent’s objection would be forwarded to the Panel, once appointed, for its consideration.
The Center appointed Nasser A. Khasawneh, Knud Wallberg and Sir Ian Barker as panelists in this matter on April 30, 2012. The Panel finds that it was properly constituted. Each member of the Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On May 1, 2012, Complainant submitted an additional request to file a supplemental pleading to address the Response.[2] On the same date, Respondent submitted an objection to Complainant’s request. The Center acknowledged receipt of the parties’ communications and noted that the request would be forwarded to the Panel for its sole discretion. The Panel addresses the question of supplemental pleadings below.
Complainant is owner of the trademark MASAI with a number of international registrations including, for example Community Trademark Registration No. 000619981 in Classes 3, 24 and 25 with a registration date of February 22, 1999. Complainant’s Community Trademark includes seniority grant dates from several European countries dating from the early and mid 1990s.
The disputed domain name was originally registered on May 15, 2000. It currently routes to a website posting directory links to sites related to Africa and travel.[3]
According to archives available at “www.archive.org”, the website in 2000 advertised a Chicago-based software services company named “Masai Management.” From 2001 to 2005 the website displayed instead text-generated directory links referring to a number of categories (often travel related). In September 2005, the website displayed an African animal scene banner, then later in 2005, the site displayed numerous links relating to African travel destinations. Near the end of 2005, there are no available archives. In later years, there is an indication that the site was not crawled by the Internet Archive’s Wayback machine, due to the existence of robot.txt files.
Screen captures of the website on September 15, 2008 show a photo of what appears to be African tribes-people, with a search box, an appearance that is consistent until September 2009. Online archives of the website after 2009 are not available to the Panel at this time.
Complainant avers that it has operated a clothing design, production and sales company using its MASAI trademark since the mid-1980s and that its products are sold in Australia, Belgium, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Netherlands, Norway, Portugal, Russia, Spain, Sweden, Switzerland, the United Kingdom and the United States.
In its legal allegations, Complainant contends, first, that the disputed domain name is identical or confusingly similar to the MASAI marks.
Second, with respect to rights or legitimate interests, the Complaint borrows heavily from the language of the Policy paragraph 4(c), without reference to particularized facts. The Complaint’s allegations addressing rights or legitimate interests are brief, therefore set forth verbatim:
“The Respondent has no known rights or legitimate interests in respect of the disputed domain name. There is no evidence of the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services.
“There is no evidence that the Respondent has made any legitimate use of the name ‘MASAI’ as a trademark or service mark, nor is there any evidence that the Respondent is commonly known as ‘MASAI’.
“The Complainant has not authorized or licensed the Respondent’s use of its MASAI trademark.”
Finally, respecting bad faith under the Policy, Complainant contends that the use of the disputed domain name in connection with pay-per-click links to women’s fashion clothes is prima facie evidence of bad faith.
The Complaint appends as Annexes 8 and 9 pages allegedly taken from Respondent’s website. The Complaint appears to suggest that the annexes show Respondent’s web pages as...
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