WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Bharti Airtel Limited Body Corporate v Ramandeep Singh USA Webhost Inc

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WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Bharti Airtel Limited Body Corporate v Ramandeep Singh USA Webhost Inc Powered By Docstoc
					                WIPO Arbitration and Mediation Center

                        ADMINISTRATIVE PANEL DECISION

      Bharti Airtel Limited, Body Corporate v. Ramandeep Singh, USA Webhost, Inc.

                                   Case No. D2010-0524




1.   The Parties

     1.1   The Complainant is Bharti Airtel Limited, Body Corporate of New Delhi, India,
           represented by Singh & Singh Advocates, India.

     1.2   The Respondents are Ramandeep Singh of New Delhi, India, represented by
           Jyotika Kalra & Associates, India and USA Webhost, Inc. of Kennebunk, Maine,
           United States of America.


2.   The Domain Name and Registrar

     2.1   The disputed domain name <airtel.com> (the “Domain Name”) is registered with
           USA Webhost, Inc., (the “Registrar”).


3.   Procedural History

     3.1   The Complaint was filed with the WIPO Arbitration and Mediation Center
           (the “Center”) on April 7, 2010. As at the date that the Complaint was filed,
           although WhoIs records recorded the registrar for the Domain Name was the
           Registrar, no registrant details were displayed. However, the Complainant had
           previously become aware of statements from Ramandeep Singh to the effect that
           he was the owner of the Domain Name. The Complainant‟s representative had
           also previously approached the Registrar to seek clarification of the identity of the
           registrant, but that information had not been provided. Accordingly, the
           Complainant listed both Ramandeep Singh and the Registrar as “Respondents” in
           the Complaint.

     3.2   On April 7, 2010, the Center transmitted by email to the Registrar a request for
           registrar verification in connection with the Domain Name. The Center‟s actions
           the following day are recorded in a file note prepared by the case administrator
           assigned by the Center to the case. That note reads as follows:



                                            page 1
           “On April 7, 2010, I [name of case administrator] was assigned as case
           manager in the above referenced proceeding. I received the Complaint and
           filing emails the following day (April 8, 2010). After recognizing the
           possibility of a cyberflight issue as identified in the complaint filing
           communications, I checked to see if the Center received an RVR response
           from the Registrar, USA Webhost, Inc. After noting that the initial email
           bounced, with a follow-up email sent by a colleague in charge of case
           assignment to an expanded list of emails (including to the InterNIC listed
           email address) on April 7, 2010, I sent an urgent follow-up email to the
           expanded list of emails on April 8, 2010. Thereafter, in the process of
           checking the WhoIs details for the disputed domain name, I received a
           telephone call from the Complainant in this case asking about the lock status
           and proper procedure for submitting the Complaint to the Center. Pursuant
           to Complainant‟s indication that they were witnessing an active bidding
           process on the disputed domain name, I attempted to call the Registrar at the
           phone number listed on the InterNIC webpage, and left a message
           concerning the dispute and our prior emails at that number, which indicated
           the inbox was owned by Mr. Gilbert. I placed a phone call 30 minutes
           afterward to the same number, and reached Mr. Gilbert, who indicated he
           was out of the office and that I should email a Mr. Clark at an email address
           given by Mr. Gilbert. Mr. Gilbert had further indicated that Mr. Clark was a
           member of CORE (Internet Council of Registrars) and had just recently
           attended a meeting in Switzerland. After speaking with Mr. Gilbert, I
           forwarded the RVR request on April 8, 2010 to the address specified by Mr.
           Gilbert, and received a bounce-back email indicating the email address did
           not exist. Subsequent to the conversation with Mr. Gilbert, I checked the
           Registrar membership list of CORE and matched the contact details to the
           Registrar of record, and additionally forwarded the RVR request to the
           additional email contact listed therein.”

3.3   Later on 8 April 2010, a Mr. E. B. Williams of the Registrar sent an email to the
      Center that read as follows:

           “This informs you that your verification request made less than 24
           hours ago, has been received.”

3.4   Later that day, the Complainant‟s lawyers received an email from Mr.
      Ramandeep Singh that read as follows:

           “Sorry I am not the owner of this domain. This domain is with pool.com
           thats it. I am sorry.”

3.5   Not having received a substantive response to its verification request, the Center
      sent a further email to the Registrar on April 9, 2010. The Center received a read
      receipt from Mr. E. B. Williams in respect of that email but no substantive reply.

3.6   Later that day, the Center received an email from Mr. Ramandeep Singh that read
      as follows:

           “I was very sorry for this. I was not the owner of this domain then please
           forgive me. I am only 21 and new to internet and I don't know about
           Trademarks. I am sorry. I will not do this again.”



                                      page 2
3.7   A further email was sent by Mr. Ramandeep Singh on April 12, 2010 that read as
      follows:

           “I already sorrow for this. I am only 21 and new to internet domains. I don't
           even know about TM domains and airtel such a huge company wants to
           fight with a child. I am saying that I am sorry.”

3.8   On April 12, 2010 the Center sent a further email to the Registrar commenting as
      follows:

           “As the listed Registrar of record for the domain name subject to dispute in
           these proceedings, your response is important in helping to ensure that the
           Complaint is processed on the basis of the best available information.
           Where this information is not forthcoming or is incomplete, risks to the
           effective conduct of the proceedings include domain name expiry, deletion
           and „cyberflight‟.
           …

           We greatly appreciate your cooperation in ensuring the continued effective
           functioning of the UDRP in line with your obligations as an ICANN
           accredited Registrar.”

      The Center received a further read receipt from Mr. E. B. Williams in respect of
      that email but no substantive reply.

3.9   On April 14, 2010 the Center sent yet a further email to the Registrar (this time
      copied to ICANN) informing the Registrar that in light of its failure to respond to
      the Center‟s verification request, the Center would proceed with the Complaint on
      the basis that the Registrar was the registrar for the Domain Name and that the
      Respondent details in the Complaint were correct. The Center received a further
      read receipt from Mr. E. B. Williams in respect of that email but once again no
      substantive reply.

3.10 On April 19, 2010 Mr. E. B. Williams sent an email to an individual who prior to
     the filling of the Complaint had attempted to acquire the Domain Name on behalf
     of the Complainant. The email was copied to the Center and read as follows:

           “Hello Krishna,

           I have an update.

           I have changed the status from „Active‟ to „client-hold‟. I have also deleted
           the Pool nameservers which were incorrectly associated when the domain
           was acquired by USAWebhost, by Pool. I am in the process of repointing
           whois.usawebhost.com from the Pool nameserver to USAWebhost‟s new
           whois server, and will make „USAEwebhost Domain Disputes‟ the
           placeholder registrant.

           I tried reaching [the case administrator for this dispute], WIPO Arbitration
           and Mediation Center <domain.disputes@wipo.int> by phone at noon,
           EDT, which is between the 2pm to 6pm window when WIPO is open, but
           all I get is a recording.

           I was unaware how mechanistic and mindless a UDRP actually is, in spite

                                      page 3
           of all the time I've „been aware‟ of the UDRP as a policy issue. You will
           send me the AirTel corporate registrant data, which I will use and modify
           the data at USAWebhost, and displayed via whois.

           This confirms our conversation of a few minutes ago.

           Eric”

3.11 In light of the contents of that email, the Center sent a further email on
     May 5, 2010, enquiring whether the parties were agreed that the Domain Name
     should be registered in the name of the Complainant. Once again the Center
     received a read receipt from Mr. E. B. Williams in respect of that email, but no
     substantive response.

3.12 This email did, however, elicit a response the same day from Mr. Ramandeep
     Singh to the Center as follows:

           “Sir

           I am sorry for my done. But you are making me ill. Please forgive me.”

3.13 He also sent an email to the Complainant‟s lawyers as follows:

           “I am not handling this domain. I was just the auction winner at pool.com.
           This has made me sick though I don't know trademark issues on Internet”.

3.14 On May 25, 2010, the Center, sent an email to ICANN, copied to the Registrar
     that read as follows:

           “To the attention of ICANN Compliance Team,

           Further to our initial communication of April 19, 2010, we wish to report
           that we have not received any reply to our repeated inquiries to the registrar
           USA Webhost, Inc. We continue to experience difficulties in contacting this
           registrar regarding a current UDRP case filed with the WIPO Center
           concerning the domain name <airtel.com> (WIPO Case No. D2010-0524).

           By way of background, as the Complainant in this case had expressed
           concerns about cyber flight, we contacted the registrar by telephone roughly
           24 hours after sending our Request for Registrar Verification (which
           requests, inter alia, a confirmation that the disputed domain name has been
           “locked”). Although we were able to get in touch with an employee of the
           registrar, and despite the fact that we have received „read receipts‟ to many
           of our subsequent reminders (on some of which you have been blind-
           copied), no substantive reply or communications have been forthcoming
           from the registrar to date. It has now been a substantial time since the
           Complaint was filed and our initial request for registrar verification was
           sent to them.

           Additionally, the registrar‟s website appears to have changed format since
           the filing of the Complaint, and does not appear to have at any time
           provided access to their what should be publicly-available WhoIs data.
           Neither the Internic website, nor the generic BetterWhoIs site, provide any
           registrant or contact information for the disputed domain name. Therefore,

                                      page 4
                 we are currently unable to verify the information provided in the Complaint
                 for this matter.

                 If you are unable to provide any additional information in this matter, or if
                 we do not hear from you by Friday, May 28, 2010, we will need to proceed
                 in this case on the basis of the Complaint as filed, and any information we
                 may be able to locate in publicly-available records. We would, of course,
                 do so reluctantly, and the Center accepts no responsibility for any
                 complications which may arise as a consequence of the registrar‟s repeated
                 failure to provide WhoIs records for the disputed domain name.

                 Sincerely,
                 [Name of individual at the Center]
                 Registrar Liaison”

     3.15 The Center verified that the 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 the Respondents of the Complaint, and
          the proceedings commenced on June 1, 2010. In accordance with the Rules,
          paragraph 5(a), the due date for Response was June 21, 2010. A form of
          Response from Mr. Ramandeep Singh lawyers was filed with the Center on
          June 9, 2010.

     3.16 The Center appointed Matthew S. Harris as the sole panelist in this matter on
          June 25, 2010. 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.


4.   Procedural Issues

     A.    Registrar’s conduct

     4.1   As a preliminary matter, it is necessary to comment upon the Registrar‟s actions
           in this matter. In short the Registrar has not behaved in a manner that one would
           expect from a reputable provider of registrar services.

     4.2   First, although WhoIs records for the Domain Name indicate that the Registrar is
           indeed its registrar, and it has sent at least one email (i.e. its email of
           April 19, 2010) which indicates that it had actual control over this registration,
           the Registrar has not maintained publically accessible registration details in
           relation to the Domain Name. Not to do so would appear to involve a breach of
           paragraph 3.3.1 of the Registration Accreditation Agreement (“RAA”) that
           governs the relationship between ICANN and Registrar

     4.3   Second, the Registrar has refused to substantially respond to the Center‟s
           numerous requests that it provide registration verification details in relation to the
           Domain Name.

     4.4   These are not trivial failures. As this Panel stated in Mrs. Eva Padberg v.

                                            page 5
      Eurobox Ltd., WIPO Case No. D2007-1886:

            “For the Policy to be able to operate successfully it requires registrars to
            ensure that its public Who-Is databases are reliable and accurate and that
            registrars fully and promptly co-operate with Providers in dealing with
            requests and communications associated with complaints.”

4.5   If registrars are permitted to behave in such a fashion with impunity they
      undermine the operation and integrity of the Policy. As this Panel recorded in
      Four Seasons Hotels Limited v. Internet bs Corporation/Private Whois Service,
      WIPO Case No. D2009-1657:

            “6.21 ... Panels [...] have no power to impose any form of sanction on a
            registrar even in the face of the most egregious misconduct. The only
            positive powers specifically granted to panels are to decide the fate of
            domain names the subject matter of proceedings under the Policy and under
            paragraph 10 of the Rules to conduct those proceedings in such manner as
            they consider appropriate in accordance with the Policy and Rules.
            Registrar compliance is ultimately a matter for ICANN.

            6.22 Nevertheless, both panels and the Center have a clear interest in the
            effective operation of the Policy that they administer. Should it come to
            their attention that the actions of specific registrars threaten the integrity of
            the Policy (regardless of whether or not those actions may ultimately be in
            breach of its terms), it is appropriate for them to bring this to ICANN‟s
            attention. Insofar as a panel requires the authority of the Policy or Rules to
            do this, paragraph 10 of the Rules provides it.”

4.6   In some previous cases where a panel has been minded to publically criticise the
      conduct of a registrar and has invited the Center to bring its decision to the
      attention of ICANN, it has as a matter of procedural fairness, first invited the
      comments of the registrar in question (see for example, Four Seasons Hotels
      Limited, supra). However, in this case the Panel does not consider that necessary.
      The issue of the Registrar‟s conduct was clearly raised by the Center in their
      email of May 25, 2010 and the Registrar chose not to respond to the same. It
      should now be clear to registrars what the consequences may be of refusing to
      engage with a UDRP provider in relation to such issues. Further, in the Panel‟s
      view it would be unfair to the Complainant, to further delay the making of a
      decision in this matter in order to give the Registrar yet another opportunity to
      explain itself.

4.7   Accordingly, the Panel invites the Center to bring a copy of this decision to the
      attention of ICANN to take such investigation and action in relation to the
      Registrar as it considers appropriate.

B.    Identification of Respondent

4.8   A second procedural point is the identification of the “Respondent” in this case.
      The Complainant has named both the Registrar and Ramandeep Singh as
      Respondents. That it did so in the circumstances of this case is understandable,
      but the question still remains as to whether the “Respondent(s)” has been
      sufficiently identified for the purposes of these proceedings. In the opinion of the
      Panel, they have. The issue of the identification of the “correct respondent” is
      one that was addressed in some detail by this Panel in Mrs. Eva Padberg v.

                                        page 6
Eurobox Ltd., supra. In that case the Panel commented as follows:

“5.5 There is a possible argument that the very question of who is the party
     against whom the proceedings have been brought is misconceived and
     imports into proceedings under the Policy concepts from inter partes court
     proceedings that may be unhelpful. If correct, what is important here is that
     proceedings are brought in respect of the Domain Name and that the
     procedures are then followed to ensure that the person or persons who are
     reasonably identifiable as having an interest in that name are properly
     notified.”

“5.6 In any event, the starting point for assessing what is meant by the term
     „Respondent‟ is obviously the Policy and the Rules. The term „Respondent‟
     is not defined in the Policy. The „Respondent‟ is defined in the Rules as
     „the holder of a domain-name registration against which a complaint is
     initiated‟. However, the Rules contain no definition of who is „the holder of
     the domain-name registration‟ for these purposes.

5.7   The sole provision that can be said to place an obligation on a complainant
      to identify a respondent is to be found in paragraph 3(b)(v) of the Rules.
      This provides that a complainant shall:

            “Provide the name of the Respondent (domain-name holder) and all
            information (including any postal and e-mail addresses and telephone
            and telefax numbers) known to Complainant regarding how to contact
            Respondent or any representative of Respondent, including contact
            information based on pre-complaint dealings, in sufficient detail to
            allow the Provider to send the complaint as described in Paragraph
            2(a).”

“5.8 There is, however, nothing in the Rules that prescribes how a respondent is
     identified in a complaint. Whilst it is customary that a complaint begins
     with a heading that identifies a complainant and a respondent (see, for
     example, the model complaint available from the WIPO website), in the
     opinion of the Panel this heading has no legal significance. Whilst it might
     be said that there is an obvious practical advantage in the name of the „true‟
     respondent being identified in the headings of the documents filed by the
     parties and in any decision issued by a panel, this is ultimately an issue of
     administrative convenience only. So for example, if in the view of a panel
     or a Provider that the „wrong‟ respondent is identified in the heading of the
     complaint, it does not necessarily follow that the proceedings should be
     rejected as invalid as having been brought against the „wrong‟ person.”

“5.9 So who is the Respondent for the purposes of 3(b)(v) of the Rules? In the
     Panel‟s opinion the only sensible answer to this question is that it is prima
     facie the entity that is recorded in the registrar‟s register as revealed by a
     Who-Is search. There may be cases where it is believed by the complainant
     that this is a false address or pseudonym for the „true‟ or „real‟ owner of the
     domain name, and in such a case if the complainant believes it knows who
     the „true‟ or „real‟ owner is, this should be disclosed. However, in a case
     where this is not known to the complainant, it is sufficient that it simply
     identifies the individual or entity recorded in the Who-Is search results at
     the time the Complaint is filed. In such a case, the complaint is compliant
     so far as this aspect of the Rules is concerned.”

                                 page 7
     4.9    In the present case, of course, because of the Registrar‟s apparent failure to
            maintain a WhoIs entry in relation to the Domain Name, the Complainant has not
            been able to identify the prima facie Respondent from that material. However,
            the Complainant did disclose contact information for the person who to the best
            of its knowledge was the entity that controlled the Domain Name (i.e. Mr.
            Ramandeep Singh). In the circumstances, in the opinion of the Panel the
            Complainant has complied with its obligations under paragraph 3(b)(v) of the
            Rules and that the Complaint is procedurally compliant. Further, no criticism can
            be levied at the Complainant who when faced with an absence of WhoIs
            registrant data for the Domain Name decided to name the Registrar as a formal
            Respondent in these proceedings.

     4.10 Further, the Panel is satisfied that the Center in this case more than adequately
          complied with its obligations under Paragraph 2(a) of the Rules “to employ
          reasonably available means calculated to achieve actual notice to Respondent”.
          Indeed, it might well be said that the Center in taking the steps that it took
          between early April 2010 and late May 2010 amounted to far more than
          reasonable means. If a registrar fails to provide details of the registrant of a
          domain name and registrant details are not recorded in any public WhoIs record,
          then it strikes the Panel that notification of the complaint to that registrar and such
          other person as the complainant may have identified in the complaint should be
          sufficient means for the purposes of this paragraph. If as a consequence a
          registrant is not in fact notified, then his recourse in such circumstances is against
          the registrar. Of course, to proceed on that basis is far from ideal. It may also
          create knock-on complications so far as issues such as jurisdiction are concerned.
          But ultimately it is an approach that in the opinion of this Panel is permissible
          under the Policy and Rules and which is reasonably consistent with the intention
          of the framers of those documents that the Policy provide an effective and
          expeditious means of resolving domain name disputes.

     4.11 In any event, it is clear that so far as Mr. Ramandeep Singh was concerned, he
          was in fact notified and, he has through lawyers participated to some degree in
          these proceedings.


5.   Factual Background

     5.1    The Complainant is a company in the Bharti Airtel group of companies, which is
            one of India‟s leading private sector providers of telecommunication services
            with over 100 million customers as at the end of 2009. Its audited income for the
            year ended March 2009 exceeded INR 37,350 CR.

     5.2    The term “Airtel” is used by various companies in the group and the Complainant
            is the owner of various trade marks that comprise or incorporate the term
            “Airtel”. Marks owned by the Complainant include:

            (i)    Indian trade mark no. 1256043 for the word AIRTEL in class 38 dated
                   December 18, 20031; and

            (ii)   European Community trade mark no. 006545362 for the word AIRTEL in

1
     The trade mark certificate provided for that mark names “Bharti Tele-Ventures Limited” as its owner, but
     the decision in Bharti Airtel Limited, Bharti Enterprises, Bharti Global Limited v. Marketing Total S.A.,
     WIPO Case No. D2007-0734 suggests that this is a previous name for the Complainant.

                                                  page 8
                classes 38, 41, 42 filed on April 8, 2008.

     5.3   The Complainant and other companies within its group are also the owners of a
           large portfolio of domain names that it uses in connection with its business and
           which incorporate the AIRTEL mark. They include <airtel.in>.

     5.4   The WhoIs details for the Domain Name record that it was created on
           February 13, 2010. However, it appears that the Domain Name had previously
           been registered by a third party with an expiry date in December 2009.

     5.5   Initially, the Domain Name was placed for sale on the “www.pool.com” website
           and on February 12, 2010 the Complainant‟s lawyers sent a letter to Nominalia
           Internet SL, asserting that this company had put the Domain Name up for auction.

     5.6   On February 17, 2010 Mr. Ramandeep Singh sent a message to the Complainant
           via Twitter that read as follows:

                “I have secured airtel.com for your company. airtel.com looks better than
                airtel.in. Please contact me on [telephone number given] very soon”.


6.   Parties’ Contentions

     A.    Complainant

     6.1   The Complainant refers to its registered trade marks and contends that the
           Domain Name is identical to its marks. It lists numerous proceedings before the
           Indian Courts and various domain name ADR proceedings in which it has
           successfully recovered domain names that incorporate the AIRTEL mark. It also
           contends that AIRTEL is a “well known trade mark” not just in India but also
           “abroad”.

     6.2   On the issue of rights and legitimate interests the Complainant contends that the
           acts of the Respondents constitute trade mark infringement and that the
           respondents are “in no way connected to the registered domain name.”

     6.3   On the issue of bad faith the Complainant makes various general allegations of
           malafide on the part of the Respondent and claims of impending harm. However,
           the most focused of its complaints in this respect is to be found in the following
           statement:

                “That the Respondents have no legitimate rights or legitimate interests in
                respect of the domain name and the same has been registered and is being
                used in bad faith with the sole intention of selling the domain for a higher
                price. That the acts of the respondents are squarely covered by 4(a) & 4(b)
                of the UDRP Policy and that the domain deserves to be transferred to the
                complainant.”

     B.    Respondent

     6.4   On June 9, 2010, lawyers for Mr. Ramandeep Singh filed a document that
           purported to be a Response to the Complaint, but instead took the form of a letter
           to the Center making an offer to resolve the dispute, inter alia, by means of
           transfer to the Complainant. This Response stated as follows;

                                           page 9
                 “Sir, I may brought to your kind notice that my client is just 21 years of age
                 and an Engineering student. He is not even the registrant of this domain.
                 The only thing which he has done is that he bided in an auction by
                 <pool.com> for the purchase of domain <airtel.com> and he was declared
                 the highest bidder. He has not even paid the bid amount to the auctioneer
                 for this domain.

                 However after receiving this complaint, my client wishes to resolve this
                 dispute, as he has no interest in retaining his claim if any over the domain
                 <airtel.com> and wishes to surrender his claim if any that he may own in
                 the domain name <airtel.com> in favour of M/s Bharti Airtel Limited, the
                 complainant herein without any consideration and subject to the following
                 assurance. My client undertakes that he shall never raise any claim with
                 regard to domain <airtel.com>.

                 Sir, in order to save the interest of my client who is of a very young age
                 from any future legal or financial complication, my client should get an
                 assurance from the M/s Bharti Airtel Limited, that in case any claim is
                 being raised against my client from the party with whom my client raised
                 the bid about the domain <airtel.com>, same be defended and settled by the
                 complainant Company M/s Bharti Airtel Limited and my client should not
                 be held responsible for the same.”


7.   Discussion and Findings

     7.1   If the various emails sent by Mr. Ramandeep Singh are to be believed, at an early
           stage this individual regretted having purchased the Domain Name. The
           Response filed by his lawyers also suggests a wish to transfer the Domain Name
           to the Complainant.

     7.2   For reasons that are explained in greater detail in Igor Lognikov v. Web Ventures,
           Nerdec, Inc. and Charles Edmunds, WIPO Case No. D2009-1684, a panel may
           where a respondent evidences “unilateral consent to transfer” order the transfer of
           a Domain Name without considering the substance of a Complaint, but a panel
           also retains a discretion as to whether or not to proceed on this basis.

     7.3   In the present case the Panel does not think it is appropriate to proceed on the
           basis that it simply orders transfer. First, it is far from clear that that Mr.
           Ramandeep Singh has evidenced unilateral consent. His lawyers‟ letter appears
           to state that his consent is conditional on the Complainant providing some form
           of “assurance” should Mr. Ramandeep Singh be pursued by the person from
           whom the Domain Name was purchased. There is nothing to suggest that the
           Complainant agrees to provide this assurance (nor for that matter is there any
           good reason why, if the Complainant‟s claim is a good one, it should need to do
           so).

     7.4   Second, and in any event the Panel in exercising its discretion believes that this is
           a case where it is appropriate to deal substantively with the Complaint. The Panel
           has also reached the firm view that regardless of whether Mr. Ramandeep Singh
           is the underlying registrant of the Domain Name, that this is an abusive
           registration and the Complainant is entitled to have the Domain Name transferred
           to it. Given the difficulties explained earlier in this decision in identifying the
           “correct” registrant and “Respondent” in this case, it is preferable that the Panel‟s

                                           page 10
           reasons in this respect be set out in full.

    7.5    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 (paragraph 4(a)(i)); and

           (ii)   The respondent has no rights or legitimate interests in respect of the domain
                  name (paragraph 4(a)(ii)); and

           (iii) The domain name has been registered and is being used in bad faith
                 (paragraph 4(a)(iii)).

    The Panel will consider each of these requirements in turn.

           A.     Identical or Confusingly Similar

    7.6    The Panel accepts that the Complainant has a number of trade marks that
           comprise the word AIRTEL. The domain name apart from its “.com” TLD
           comprises the term “airtel” only. In the circumstances the Domain Name is
           virtually identical to trade marks in which the Complainant has rights. In the
           circumstances, the Complainant easily satisfies the requirements of paragraph
           4(a)(i) of the Policy.

           B.     Rights or Legitimate Interests

    7.7    The Panel accepts the Complainant‟s contention that there is no obvious
           legitimate use of the Domain Name. The Complainant contends that the
           registration and use of the Domain Name involves trade mark infringement. In
           the Panel‟s view whether or not this is the case is not that relevant to the
           assessment of rights or legitimate interests (see, for example, Delta Air Transport
           NV (trading as SN Brussels Airlines) v. Theodule De Souza, WIPO Case
           No. D2003-0372 and 1066 Housing Association Ltd. v. Mr. D. Morgan, WIPO
           Case No. D2007-1461). The point is simply that the nature of the Domain Name
           is such that it seems improbable as a matter of fact that the Domain Name is
           being held with any legitimate use in mind2.

    7.8    Further, and in any event, for the reasons that are explained in greater detail under
           the heading of bad faith below, the Panel also accepts that Mr. Ramandeep Singh
           or (if Mr. Ramandeep Singh is not the registrant of the Domain Name) the entity
           or person who is the registrant of the Domain Name, registered the Domain Name
           with a view to take financial advantage of the confusing similarity between the
           Domain Name and the Complainant‟s trade marks. More likely than not, the
           registrant sought to obtain that financial advantage by sale of the Domain Name
           to the Complainant. Holding a domain name for such a purpose does not provide
           a right or legitimate interest for the purposes of the Policy. In the circumstances,
           the Complainant has made out the requirements of paragraph 4(a)(ii) of the
           Policy.


2
    For a further gloss on what is meant by legitimate use in this context, see the three-member panel
    decision in Mr. Talus Taylor, Mrs. Anette Tison v. Vicent George Warning/Fayalobi Interaction
    Management, WIPO Case No. D2008-0455.

                                                 page 11
           C.    Registered and Used in Bad Faith

     7.9   The limited WhoIs details available for the Domain Name show that a fresh
           record was created for the Domain Name on February 13, 2010. Therefore,
           regardless of whether or not the Domain Name had previously been registered
           prior to that date, prima facie there was a fresh registration of the Domain Name
           on February 13, 2010 (see, for example, ehotel AG v. Network Technologies
           Polska Jasinski Lutoborski Sp.J., WIPO Case No. D2009-0785). Accordingly,
           when considering the question of bad faith registration and use, the date of
           assessment so far as registration is concerned is February 13, 2010.

     7.10 The Complainant‟s evidence is that the term “airtel” has no natural meaning and
          is a term that was invented by the Complainant for use as a mark. The term
          “airtel” obviously can be read as carrying an allusion to various English words
          such as “air” and “telecommunications”. But the Panel accepts in the absence of
          any evidence to the contrary that the term has no natural meaning in its own right,
          save as a reference to the Complainant‟s name and marks.

     7.11 Further, the Panel accepts the Complainant‟s evidence that the Complainant‟s
          business is substantial, is well-known in India and that its reputation also extends
          beyond that country.

     7.12 In the circumstances, the Panel concludes that the most likely explanation for the
          registration of the Domain Name in February 2010 was so that it could be used
          with a view to take unfair advantage of a confusing similarity between the
          Domain Name and the Complainant‟s trade marks. Such registration and
          subsequent holding of the Domain Name for that purpose is registration and use
          in bad faith. If the actual registrant in this case is Mr. Ramandeep Singh, then the
          matter is even more straight forward. His Twitter posting makes it clear that
          insofar as Mr. Singh‟s acquisition of the domain name, he did so for the purpose
          of sale to the Complainant at a profit. Such activity falls within the scope of the
          example of bad faith given at paragraph 4(b)(i) of the Policy.

     7.13 In the circumstances, the Complainant has made out the requirements of
          paragraph 4(a)(iii) of the Policy.


8.   Decision

     8.1   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 name <airtel.com> be
           transferred to the Complainant.




                                     Matthew S. Harris
                                      Sole Panelist

                                    Dated: July 9, 2010




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