{ "case_number": "CAC-ADREU-008066", "time_of_filling": null, "domain_names": [ "phoneparts.eu" ], "case_administrator": " Iveta Špiclová (Czech Arbitration Court) (Case admin)", "complainant": [ "Mr. Clint Abela (Phoneparts Limited)" ], "complainant_representative": null, "respondent": [ "Jaswant Takhar" ], "respondent_representative": null, "factual_background": "The Complainant is the owner of company name Phoneparts Limited, registered on March 23, 2017 in the European Union member state Republic of Malta.\r\n\r\nThe Respondent registered the disputed Domain name on September 13, 2015. \r\n\r\nNo specific information is provided about the Respondent’s business activities (apart from what is mentioned below under “Parties’ Contentions: Complainant).\r\n\r\nThe Complaint was filed on October 21, 2020.\r\n\r\nThe formal date of the Commencement of the ADR Proceeding was set to October 23, 2020.\r\n\r\nThe Respondent did not respond, and a Notification of the Respondent’s Default was issued on January 6, 2021.\r\n\r\nOn January 13, 2021, Mr Petter Rindforth was appointed as the Panelist in this case. The Projected Decision Date was set to February 12, 2021.", "other_legal_proceedings": "The Panel is not aware of any other legal proceedings related to the disputed domain name.", "discussion_and_findings": "In order to render a decision, the Panel has to establish whether the conditions of Article 21(1) of Regulation (EC) No. 874\/2004 (“the Regulation”) are satisfied:\r\n\r\n“A registered domain name shall be subject to revocation, using an appropriate extra-judicial or judicial procedure, where that name is identical or confusingly similar to a name in respect of which a right is recognized or established by national and\/or Community law, such as the rights mentioned in Article 10(1), and where it: (a) has been registered by its holder without rights or legitimate interest in the name; or (b) has been registered or is being used in bad faith.”\r\n\r\nArticle 10(1) describes such prior rights to \"include, inter alia, registered national and community trademarks, geographical indications or designations of origin, and, in as far as they are protected under national law in the Member-State where they are held: unregistered trademarks, trade names, business identifiers, company names, family names, and distinctive titles of protected literary and artistic works\".\r\n\r\nThe Complainant has refereed to, and provided evidence in the form of the Certificate of Registration, its in Malta registered and thereby protected company name Phoneparts Limited.\r\n\r\nAccordingly, the Panel finds that the Complainant has proved its rights to the company name Phoneparts Limited, and that this right is recognizable under the meaning of Article 10(1) of the Regulation.\r\n\r\nThe disputed domain name was registered on September 13, 2015, which is 18 months before Complainant’s company name registration. \r\n\r\nHowever, it is further noted from the communication between the Complainant and the Respondent (copies from e-mail, provided by the Complainant), that the Respondent replied to the Complainant not using an e-mail address connected with the disputed domain name. In the said correspondence, the Respondent did not refer to any use or specific interests, other than answering the Complainant’s offer to buy the disputed domain name by claiming a rather high monetary compensation in order to accept transfer of to the Complainant. It is further noted that the Respondent has not replied to the Complaint, thereby missing the possibility to contradict the Complainant’s conclusion that Responent has no legitimate interest.\r\n\r\nThe question is, however, if this is enough to decide in favour of the Complainant?\r\n\r\nThere are some details in the dispute that speaks against such a decision:\r\n\r\nAlthough the Complainant has a valid right, namely a company name registered within the European Union, the distinctiveness of the said company name is rather weak. In fact, the company name is a generic combination of words, describing the business of the Complainant: phone + parts.\r\n\r\nAs noted above, the Respondent registered the disputed domain name prior to the registration date of the Complainant’s company name. As is descriptive, and there is no details in the case indicating the the Respondent was aware of the Complainant’s plans to create a similar company name, the Panel cannot see that was registered in bad faith.\r\n\r\nOnly passive holding itself is not usually viewed as bad faith, nor lack of legitimate interest, especially when the later name rights are not clearly distinctive, or a complainant can show that the Respondent had prior knowledge of Complainant’s upcoming rights.\r\n\r\nOwners of descriptive domain names, registererd prior to any other’s name rights, have the full right to claim a more market based price for that domain name in case someone express interest in buying that domain name. This is especially in cases where the later name right has low distinctiveness.\r\n\r\nThe Panel therefore concludes that there is at least possibilities that the Respondent has legitimate interest in the disputed domain name . ", "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that the disputed domain name shall not be transferred to the Complainant.", "panelists": [ null ], "date_of_panel_decision": "2021-02-11 00:00:00", "informal_english_translation": "I. Disputed domain name: phoneparts.eu\r\n\r\nII. Country of the Complainant: Malta, country of the Respondent: Ireland\r\n\r\nIII. Date of registration of the domain name: September 13, 2015\r\n\r\nIV. Rights relied on by the Complainant (Art. 21 (1) Regulation (EC) No 874\/2004) on which the Panel based its decision:\r\n 1. company name: Phoneparts Limited\r\n\r\nV. Response submitted: No\r\n\r\nVI. Domain name is identical to the protected right of the Complainant\r\n\r\nVII. Rights or legitimate interests of the Respondent (Art. 21 (2) Regulation (EC) No 874\/2004):\r\n 1. Yes \r\n 2. Domain name is descriptive, indicating specific services, and registered before the Complainant’s company name rights. \r\n\r\nVIII. Bad faith of the Respondent (Art. 21 (3) Regulation (EC) No 874\/2004):\r\n 1. [Yes\/No]\r\n 2. Why: Not considered, as Respondent has no rights or legitimate interests\r\n\r\nIX. Other substantial facts the Panel considers relevant: No\r\n\r\nX. Dispute Result: Transfer denied. \r\n\r\nXI. Procedural factors the Panel considers relevant: No\r\n\r\nXII. [If transfer to Complainant] Is Complainant eligible?", "decision_domains": [], "panelist": null, "panellists_text": null }