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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Lynx Solutions Limited t/a Thandi Coaches v. Whois Guard Protected

Case No. D2007-0827

 

1. The Parties

The Complainant is Lynx Solutions Limited, trading as Thandi Coaches, Smethwick, West Midlands, United Kingdom of Great Britain and Northern Ireland.

The Respondent is Whois Guard Protected, Westchester, California, United States of America.

2. The Domain Names and Registrar

The disputed domain names <thandicoaches.com> <thandiexecutive.com> <thandiexpress.com> <thandilimos.com> <thanditravel.com> are registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on June 6, 2007. On June 12, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain names at issue. On June 13 and 18, 2007, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the ”Policy”), 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 the Respondent of the Complaint, and the proceedings commenced on June 20, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 10, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 19, 2007.

The Center appointed Ross Carson as the sole panelist in this matter on July 30, 2007. The Panel finds that it was properly constituted. 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 August 9, 2007, the Panel issued Procedural Order No. 1 requesting clarification of the originally named Complainant, a Director of Lynx Solutions Limited and substitution of Lynx Solutions Limited t/a Thandi Coaches as the Complainant. Complainant amended the Complaint to name Lynx Solutions Limited t/a Thandi Coaches as the Complainant. In Procedural Order No. 1 the Panel also required Lynx Solutions Limited to provide proof that it was the owner of or licensee of United Kingdom Trademark Number 2389858 for the trademark THANDI. In response to this second requirement Complainant provided a license from Amardeep Thandi, a Director of Complainant, the registered owner of the THANDI trademark to Lynx Solutions Limited to use the THANDI trademark. The Panel extended the date for decision to fourteen days from Complainant’s reply. Complainant’s final reply was received from the Center on August 24, 2007.

 

4. Factual Background

Thandi Coaches is the trading name of Complainant. Thandi Coaches is a transportation and travel company based in the Midlands, United Kingdom of Great Britain and Northern Ireland. Thandi Coaches business operates under four related brands: Thandi Travel, Thandi Coaches (hire of executive coaches), Thandi Limos (hire of limousines and cars) and Thandi Express (scheduled express bus services between Birmingham and London as well as the main airports).

The Thandi Coaches name has been used since 1985. The name Thandi Coaches is prominent in Birmingham having been founded by the Thandi Family. Thandi Coaches operate over 20 coaches and 10 limousine vehicles from a depot in Birmingham. The trading name Thandi Coaches and the domain name <thandicoaches.com> is displayed on the side of the coaches. The name is well recognized, being displayed on the side of all Complainant’s coaches going up and down the motorway.

Complainant is a licensee of the trademark THANDI, United Kingdom Registration Number 2389858, registered October 14, 2005 in relation to “Bus and coach services; transportation services relating to freight; skip hire services” in class 39 registered in the name of Amardeep Thandi.

The domain names in dispute <thandicoaches.com>; <thandilimos.com>; <thanditravel.com>; <thandiexpress.com> and <thandiexecutive.com> were owned by Complainant. On April 14, 2007, Complainant lost control of these domain names as they were transferred without any authority or permission from Complainant. Since April 14, 2007, Complainant has attempted to track the new registrant with the aim of recovering the domain names in dispute but without success since the new registrant’s identity is hidden. The WHOIS information with respect to the domain names in dispute discloses the name of the registrant contact but does not disclose the identity of the registrant. The websites associated with the domain names in dispute have not been operated since their acquisition by the unidentified registrant resulting in loss of business and damage to Complainants reputation.

The domain names in dispute were transferred from Complainant’s registrar to eNom, INC. on April 14, 2007. The WHOIS data associated with the domain names in dispute states that registration services were provided by Name Cheap.com and that the registrant contact is WhoisGuard Protected. Whois Guard is a service made available to registrants of domain names to protect them from possible scammers etc. If the WhoisGuard service is contracted for by a registrant the identification of the registrant does not appear in the WHOIS information. WhoisGuard Protected appears in the WHOIS information identified as the registrant contact instead of the identity of the registrant. As part of the WhoisGuard service e-mails directed to the domain name are received by WhoisGuard and forwarded by WhoisGuard to the registrant’s real e-mail address specified by the registrant. This procedure shields the registrants identity. WhoisGuard orWhoisGuard Protected has been a named Respondent in over fifteen WIPO UDRP decisions in the past two years.

The Center has served the documentation in this case on WhoisGuard and the Panel infers that the unidentified registrant of the domain names in dispute had access to the material served by the Center.

5. Parties’ Contentions

A. Complainant

A.1 Identical or Confusingly Similar

Complainant or its predecessors in business have been carrying on business in association with transportation and travel services under the common law trademark THANDI COACHES since 1985 in Birmingham and the Midlands, United Kingdom of Great Britain and Northern Ireland. Complainant is the licensee of the United Kingdom Trademark Registration Number 2389858 for the trademark THANDI owned by Amardeep Thandi a Director of Complainant and registered in relation to coach and bus services etc. as described in Paragraph 4 above.

Complainant was the previous owner of the domain names in dispute prior to the hijacking of the domain names in dispute in April 2007. Complainant is also the registrant of numerous other domain names for or including THANDI used in association with its transport business.

The domain names in dispute were registered and used by Complainant as part of the THANDI COACHES or THANDI branding and are confusingly similar to Complainant’s THANDI COACHES AND THANDI trademarks.

A.2 No Rights or Legitimate Interests in respect of the Domain Names

Complainant submits that the Respondent’s identity is hidden and there is no website associated with the domain names in dispute. Complainant’s THANDI COACHES and THANDI trademarks in the transportation field are well recognized in the United Kingdom of Great Britain and Northern Ireland. Complainant has been using its THANDI COACHES and THANDI trademarks for in the United Kingdom of Great Britain and Northern Ireland for the past 20 years. As far as Complainant is aware there is no “Thandi” related travel business anywhere else in the world and Complainant has been unable to find any “Thandi” related travel website. Without any other evidence available, Complainant does not believe the Respondent has any right or legitimate interest in the domain names in dispute.

A.3 Registered and Used in Bad Faith

Complainant submits that Respondent has acted in bad faith by acquiring the domain names which have been operational for two years, and with the full knowledge that Thandi Coaches is Complainant’s brand and that bringing Complainant’s website down would damage its business and brand commercially.

Complainant further submits that Respondent is acting in bad faith by not revealing their true identity to allow it to contact them.

Complainant also submits that the passive holding of the domain names in dispute by Respondent constitutes bad faith under paragraph 4(b) of the Policy. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain names registered by the Respondent are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(2) the Respondent has no rights or legitimate interests in respect of the domain names; and

(3) the domain names have been registered and is being used in bad faith.

The fact that the Respondent did not submit a Response does not automatically result in a decision in favor of the Complainant. The failure of the Respondent to file a Response results in the Panel drawing certain inferences from the Complainant’s evidence. The Panel may accept all reasonable and supported allegations and inferences following there from in the Complaint as true. Charles Jourdan Holding, AG v. AAIM, WIPO Case No. D2000-0403.

A. Identical or Confusingly Similar

Pursuant to paragraph 4(a)(i) of the Policy Complainant must establish rights in a trademark and secondly prove that the domain names in dispute are confusingly similar to the trademarks in which Complainant has rights.

Complainant and its predecessors have been using the trademark THANDI COACHES in association with transportation and travel services since 1985. Complainant is the licensee of United Kingdom Trademark Registration Number 2389858 for the trademark THANDI registered in association with bus and coach services; etc. Complainant was the owner of all the domain names in dispute which were selected and used to provide internet visitors with information about Complainant’s transportation services associated with the trademarks THANDI and THANDI COACHES prior to the domain names being as the Complainant claims, hijacked.

The domain names in dispute contain the whole of the trademarks THANDI or THANDI COACHES. Numerous UDRP panels have held that a domain name may be confusingly similar to a trademark when the domain name incorporates the mark in its entirety. See, e.g., Am. Online, Inc. v. aolgirlsgonewild.com, NAF Case No. FA0207000117319 (September 19, 2002) (noting that <aolgirlsgonewild.com> incorporated complainant’s “entire mark” and implied “an affiliation that simply does not exist”).

The Panel finds that Complainant has proven that the domain names in dispute are confusingly similar to the registered and common law trademarks in which the Complainant has rights.

B. Rights or Legitimate Interests

Pursuant to paragraph 4(a)(ii) of the Policy, Complainant must prove that Respondent has no rights or legitimate interests in respect of the domain names.

Respondent’s identity is hidden and there is no website associated with the domain names in dispute. Complainant is not aware of any “Thandi” related travel business anywhere else in the world and Complainant has been unable to find any “Thandi” related travel website.

Respondent did not file any evidence to demonstrate Respondents rights or legitimate interests in the domain names in dispute as it was entitled to do pursuant to paragraph 4(c) of the Policy.

The Panel finds that Complainant has proven that Respondent does not have any rights or legitimate interests in the domain names in dispute.

C. Registered and Used in Bad Faith

Pursuant to paragraph 4(a)(iii) of the Policy Complainant must prove that the domain names in dispute have been registered and used in bad faith.

Having regard to use of the trademark THANDI COACHES and THANDI in relation to transportation and travel services by Complainant and its predecessor in title and Complainant’s ownership and use of the domain names in dispute prior to their unauthorized acquisition and no evidence of bona fide use of such trademarks by Respondent in association with any goods or services, the Panel infers that Respondent registered the domain names in dispute with knowledge of Complainant’s trademarks.

Complainant has been unable to determine how Respondent changed Registrars with respect of the domain names in dispute. Respondent has not submitted any evidence as to how Respondent acquired the domain name in dispute. The unauthorized changing of registrars and registrants of the domain names in dispute occurred without the knowledge or consent of the Complainant.

Circumstances evidencing registration and use in bad faith are set out in paragraph 4(b) of the Policy. The circumstances enumerated in paragraph 4(b) of the Policy are not limiting. Previous panels have held that unauthorized transfers of registrars and registrants of a domain name constitutes circumstance evidencing registration and use in bad faith under paragraph 4(b) of the Policy. CC Computer Consultants GmbH v. APSolutionsTechnologies, WIPO Case No. D2005-0609. Whether or not, as it appears, the domain name was in fact hijacked, see also ICANN paper warning Registrants of the dangers of domain name high jacking entitled, “Domain Name Highjacking: Incidents, Threats, Risks and Remedial Actions”, dated July 12, 2005.

The Panel finds that Complainant has proven that Respondent registered and used the domain names in dispute in bad faith as setout in paragraph 4(b)(iv) of the Policy.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names, <thandicoaches.com> <thandiexecutive.com> <thandiexpress.com> <thandilimos.com> <thanditravel.com> be transferred to Complainant.

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Ross Carson
Sole Panelist

Dated: September 9, 2007