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INDIAN CASES WIPO (2)

INDIAN CASES WIPO (2)

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Published by: LEX-57 the lex engine on Dec 29, 2010
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12/29/2010

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WIPO Arbitration and Mediation Center 
 
ADMINISTRATIVE PANEL DECISIONHouse of Spices (India) Inc. v. DataNet Inc.Case No. D2007-0845
 
1. The Parties
Complainant is House of Spices (India) Inc., Flushing, New York, United States of America, represented by Kalow & Springut LLP, United States of America.Respondent is DataNet Inc., Forest Hills, New York, United States of America,represented by Lewis & Hand, LLP, United States of America. 
2. The Domain Name and Registrar
The disputed domain name <houseofspices.com> is registered with eNom. 
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”)on June 8, 2007. On June 13, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue, and the following dayeNom transmitted by email to the Center its verification response confirming that theRespondent is listed as the registrant and providing the contact details.
 
In response to a notification by the Center that the Complaint was administrativelydeficient, the Complainant filed an amendment to the Complaint on June 22, 2007. TheCenter verified that the Complaint together with the amendment to the Complaintsatisfied the formal requirements of the Uniform Domain Name Dispute ResolutionPolicy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy(the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name DisputeResolution Policy (the “Supplemental Rules”).In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified theRespondent of the Complaint, and the proceedings commenced June 28, 2007. Inaccordance with the Rules, paragraph 5(a), and an extension agreed by the parties, thedue date for Response was extended from July 18, 2007 to August 1, 2007. The Responsewas filed with the Center on July 26, 2007.Complainant requested a single-member Panel. Exercising its right under paragraph 5(b)(iv) of the Rules, Respondent requested a three-member panel. On September 11, 2007,the Center appointed Richard G. Lyon, David E. Sorkin, and Maxim H. Waldbaum as panelists. The Panel finds that it was properly constituted and has jurisdiction over this proceeding. Each member of the Panel has submitted his Statement of Acceptance andDeclaration of Impartiality and Independence, as required by the Center to ensurecompliance with Rule 7.
4. Factual Background
Complainant sells food products and groceries, primarily at wholesale. It owns atrademark registered with the United States Patent and Trademark Office for HOUSE OFSPICES in International Class 42, for retail stores and wholesale distributorshipsfeaturing groceries. Complainant applied for this trademark in February 1996, it was published for opposition in November 1999, and it was issued in February 2000. Anofficer of Complainant has submitted a declaration asserting that Complainant has usedthis mark in United States Commerce since at least 1975, and that its annual sales lastyear exceeded USD 60 million.Respondent is a corporation owned by a single individual, D.K. Singh, a computer  programmer. Both Mr. Singh and Respondent are based in Forest Hills, New York,United States of America, in the same borough of the City of New York in whichComplainant is located. Mr. Singh grew up on a farm in India, from which he or hisfamily or associates grew and sold various spices.Respondent registered the disputed domain name in 1998. Until May 2007 an internetuser who entered the disputed domain name into his or her browser received an error message and no content. Complainant submitted a copy of the House of Spices web pageaccessed May 15, 2007, that included a number of links to grocery and grocery-related products. Respondent acknowledged that this use occurred, but Mr. Singh declares upon
 
 penalty of perjury that following Respondent’s change of servers its new provider addedthe content and hyperlinks without Respondent’s knowledge or consent, and that when helearned of this he immediately took steps to stop it. When the Panel accessed the disputeddomain name in September 2007, it received an “under construction” web page. ThePanel’s review of internet archives at “www.archive.org” confirms that until 2007 thedisputed domain name resolved to an error page. 
5. Parties’ ContentionsA. Complainant
Complainant contends as follows:The disputed domain name is identical to Complainant’s federally-registered trademark,thus satisfying the requirements of paragraph 4(a)(i) of the Policy.Respondent has no rights or legitimate interests in the disputed domain name.Complainant has never authorized use of its mark, Respondent has never been knownindividually or professionally by the disputed domain name, and Respondent’s non-use of the disputed domain name for many years reveals no right or legitimate interest. The2007 click-through pages are not a bona fide use of the disputed domain name.Respondent’s bad faith in registration and use is demonstrated from his registration of thedisputed domain name after Complainant had applied for its trademark and more thantwenty years after Complainant first began using its mark in commerce. Respondent’s useof the disputed domain for links to competing products is further evidence of registrationand use in bad faith.
B. Respondent
Respondent contends as follows:At the time Respondent registered the disputed domain name Complainant had noregistered trademark, and Complainant has not alleged or provided any evidence of common law rights. Without evidence of common law rights all of Complainant’sallegations are entitled to no weight and should not be credited by the Panel. Many other companies employ a combination of the words
house
and
 spice
(including
 House of Spices
) in trademarks for restaurants, grocery stores, purveyors of spices, and many other  businesses. Similarly, use of the phrase ‘House of [goods]’ is “so common as to bemundane.” Accordingly Complainant has no exclusive right to the phrase“houseofspices”.Respondent’s connection with a spice farm in India, which his family still owns, providesrights or legitimate interests in the disputed domain name. While Respondent has not yet

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