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Decision UDRP CreditEurope

Decision UDRP CreditEurope

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Published by mschwimmer
UDRP Decision CREDITEUROPE.com abusive filing'
UDRP Decision CREDITEUROPE.com abusive filing'

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Published by: mschwimmer on Aug 06, 2010
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8/6/10 9:43 AMWIPO Domain Name Decision: D2010-0737Page 1 of 5http://www.wipo.int/amc/en/domains/decisions/html/2010/d2010-0737.html
WIPO Arbitration and Mediation Center 
ADMINISTRATIVE PANEL DECISIONCredit Europe Bank N.V. v. Peter YuCase No. D2010-07371. The Parties
The Complainant is Credit Europe Bank N.V. of Amsterdam, The Netherlands, represented by Novagraaf Nederland B.V.,Netherlands.The Respondent is is Peter Yu of Hong Kong, SAR of China represented by John Berryhill, Ph.D. esq., United States of America.
2. The Domain Name and Registrar 
The disputed domain name <crediteurope.com> is registered with Backslap Domains, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 7, 2010. On May 7, 2010, the Center transmitted by email to Backslap Domains, Inc. a request for registrar verification in connection with the disputed domain name. OnMay 7, 2010, Backslap Domains, Inc. transmitted by email to the Center its verification response confirming that:(a) the disputed domain name was registered with it;(b) the Respondent was the registrant of the disputed domain name; and(c) English was the language of the registration agreement.However, the Registrar disclosed updated contact information for the disputed domain name. The Center sent an email communicationto the Complainant on May 12, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting theComplainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on May 17, 2010.The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform DomainName 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”).
 
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In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and theproceedings commenced May 19, 2010. In accordance with the Rules, paragraph 5(a), the due date for any Response was June 8,2010. The Response was filed with the Center June 9, 2010.On June 23, 2010 prior to the appointment of the Panel, the Complainant submitted a proposed Supplemental Filing. On June 30,2010, the Respondent submitted a supplemental filing in response to the Complainant’s proposed supplemental filing.The Center appointed Warwick A. Rothnie, Willem J. H. Leppink and Richard G. Lyon as panelists in this matter on July 5, 2010. ThePanel 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.
4. Factual Background
The Complainant was founded in 1994 in the Netherlands. It provides banking and financial services in a number of countries.According to the Complainant’s website,
1
when the Complainant was founded in 1994 it was part of Fiba Holding AS and traded under the name “Finansbank”. Further, it was not until after the sale of its Finansbank AS Turkey division to the National Bank of Greece in2006 that the Complainant was rebranded to become Credit Europe Bank NV.The Complainant has submitted evidence of a number of registered trademarks that include the words “Credit Europe,” the earliest of which were applied for on 25 and 28 September 2006. One of these is Benelux registration No 808175 for Credit Europe with a deviceof a diamond within a circle separating the word “Credit” from “Europe”, which is registered for a range of goods and services inInternational Classes 9, 16, 35 and 36. Another is Benelux registration No. 808230 for CreditEurope Bank with the same “diamond in acircle” device separating the words “Europe” and “Bank”. The Complainant also has International Registrations flowing from thesetrademarks, although protection has been refused in some of the countries in which it was sought.The whois record indicates that the disputed domain name was registered in November 2001. However, the Respondent states that itfirst obtained the registration on October 15, 2003.The Respondent, or a company associated with him, has a business providing a range of Internet services. It would appear from other UDRP decisions referred to by both the Complainant and the Respondent that the Respondent, or his company, has registered other domain names for use in connection with search portals and the generation of advertising revenues.Prior to the Complaint being filed, the disputed domain name resolved to a website which contained material relating to the financial or credit standing of various European countries. The Complainant contends, and the Respondent does not dispute, that this materialhas simply been extracted from a website operated by the British Broadcasting Corporation.Before the Complaint was filed, representatives of the Complainant sought to negotiate purchase of the disputed domain name fromthe Respondent. In response to the Complainant’s offer of EUR 5,000, the Respondent requested payment in the range of EUR200,000. Further negotiations in which the Complainant offered substantially higher amounts resulted in only a small reduction by theRespondent and no agreement was reached.
5. Discussion and FindingsA. Procedural matters
Before addressing the substantive requirements under the Policy, the Panel deals with two procedural matters.First, the Response was
received 
by the Center in Geneva some five hours after midnight on the due date for its submission. Therelevant record of the email communication indicates that the Response was transmitted on June 8, 2010 in the United States wherethe Respondent’s counsel is located. Accordingly, the Response was timely
transmitted 
for the purpose of paragraph 2(f)(i) of theRules, bearing in mind the time difference between Switzerland (where the Center is located) and the United States (where theRespondent’s counsel is located). In the circumstances, therefore, the Response was filed within time and the Panel accepts theResponse as part of the Record.Apart from documents requested by the Panel pursuant to paragraph 12 of the Rules, neither the Policy nor the Rules expresslyprovide for supplemental filings. Their admissibility is therefore in the discretion of the Panel bearing in mind the requirements under paragraph 10 of the Rules to ensure that the proceeding is conducted with due expedition and both parties are treated equally, witheach party being given a fair opportunity to present its case.
 
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Where unsolicited supplemental filings are admitted, it is usually because the material corrects some error or addresses somethingraised in a Response which could not reasonably have been anticipated or which was not otherwise appropriate to deal with until arespondent’s position on a particular point was clear.In this case, the Complainant’s proposed Supplemental Filing does seek to respond to issues going to the heart of the dispute. Thecentral matter raised in the Response is whether the Complainant commenced using its trademark in 1994 as the Complaint can beread as suggesting or not until 2006 or 2007. The Response contends for the latter date, citing supporting evidence. These werematters which were well within the Complainant’s knowledge before the Complaint was prepared and go to the foundation of its case.
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This would normally be a proper basis for rejecting the proposed supplementary filing, however, the allegations made in the Responseproperly called for explanation by the Complainant. Accordingly, the Panel admits the Complainant’s Supplemental Filing. While it isnot strictly necessary, the Panel also admits the Respondent’s Supplemental Filing in the interests of fairness.
B. Substantive consideration
Under paragraph 4(a) of the Policy, the Complainant has the burden of proof in respect of the following three elements:(i) The 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 domain name; and(iii) The domain name has been registered and is being used in bad faith.Typically, a Panel considers each of the three requirements under paragraph 4(a) of the Policy in turn. Because paragraph 4(a)’srequirements are conjunctive, however, no matter what the findings under the first and second sub-paragraphs, the Complainant mustfail under the requirement to demonstrate that the disputed domain name has been both registered and used in bad faith.The central fact in this case is that the Respondent registered the disputed domain name in October 2003. That is almost three yearsbefore the Complainant applied to register the trademark rights on which it relies. Moreover, the Complainant does not in itsSupplemental Filing contest the Respondent’s allegation that the Complainant did not commence using the name “Credit Europe” as,or as part of, its trading name until 2007. The Supplemental Filing instead proceeds on the basis that the Response has correctlyidentified the date the Complainant commenced using the Credit Europe name and branding. Hence, the Respondent also registeredthe disputed domain name more than three years before the Complainant actually adopted its current corporate and trading name.Paragraph 3.1 of theWIPO Overview of WIPO Panel Views on Selected UDRP Questionsstates (omitting citations):Normally speaking, when a domain name is registered before a trademark right is established, the registration of the domain namewas not in bad faith because the registrant could not have contemplated the complainant’s non-existent right.In certain situations, when the respondent is clearly aware of the complainant, and it is clear that the aim of the registration was totake advantage of the confusion between the domain name and any potential complainant rights, bad faith can be found. This oftenoccurs after a merger between two companies, before the new trademark rights can arise, or when the respondent is aware of thecomplainant’s potential rights, and registers the domain name to take advantage of any rights that may arise from the complainant’senterprises.Having regard to the timing of the registration of the disputed domain name and the Complainant’s adoption of the “Credit Europe”name and branding, there cannot be and is not any suggestion that the Respondent was aware of the Complainant’s trademark rightsor otherwise adopted the disputed domain name to take advantage of the Complainant’s rights.In its Supplemental Filing, the Complainant draws attention to its very substantial operations over a number of years now by referenceto “Credit Europe Bank” and refers to the large number of domain names based on “crediteurope” or “crediteuropebank” which it hasregistered since 2006/2007. It states further that there is a significant volume of traffic going to the website which the disputed domainname resolves to which is presumably misdirected or which the Complainant contends is otherwise causing harm to the Complainant’sbusiness. It contrasts the nature of the Respondent’s business and use of the disputed domain name to the scale and nature of theComplainant’s activities. The Complainant then submits that it is being disproportionately harmed by the Respondent’s retention anduse of the disputed domain name, contending:It should be clear that my client’s interests are more important and carry bigger weight than the interests of the Respondent, andtherefore it is justified if the domain name is transferred to [it].These submissions are predicated on a misunderstanding of the Policy. The Policy is limited in its operation. It requires that thedisputed domain name be
both
registered in bad faith
and 
used in bad faith.While this Panel accepts that the way in which a domain name is used may in appropriate cases lead to an inference that the domain

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