Koninklijke Philips Electronics v. Relson Limited

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Koninklijke Philips Electronics N.V. v. Relson Limited

Case No. DWS2001-0003

1. The Parties

1.1 The Complainant is a public limited company, Koninklijke Philips Electronics N.V. of Groenewoudseweg 1, 5621 BA Eindhoven, The Netherlands. It is incorporated in the Netherlands where it holds as its principal place of business.

1.2 The Respondent is, according to WHOIS database, Relson Limited, 26 Mill

Bank, Wellington, Telford, Salop, United Kingdom

2. The Domain Name and Registrar

2.1 The Domain Name, the subject of this dispute, is < philips.ws >.

2.2 The Domain Name is registered with Global Domains International #30019, 701 Palomar Airport Rd, Suite 300, Carlsbad, CA 92009, U.S.A

3. Procedural History

3.1 The Complaint submitted by Koninklijke Philips Electronics N.V. was

received by e-mail on September 4, 2001, and in hardcopy on September 10, 2001,

by the WIPO Arbitration and Mediation Center.

3.2 The Complainant elected to have the dispute decided by a single-member

Administrative Panel.

3.3 No legal proceedings have been initiated, as yet. (Rules for Uniform Domain

Name Dispute Resolution Policy ("Rules"), paragraph 3(b)(xi)).

3.4 As required by the Rules and the WIPO Supplemental Rules, payment in the

amount of USD1,500.00 has been made by check, payable to World Intellectual

Property Organization.

3.5 The Complainant agreed that its claim and remedies concerning the registration

of the Domain Name, the dispute, or the dispute’s resolution shall be solely

against the Domain Name holder and waives all such claims and remedies against

(a) the WIPO Arbitration and Mediation Center and Panelists, except in the case

of deliberate wrongdoing, (b) the concerned Registrar, (c) the Registry Administrator,

(d) the Internet Corporation for Assigned Names and Numbers, as well as their

directors, officers, employees and agents.

3.6 A copy of this Complaint, together with the cover sheet as prescribed by

the Supplemental Rules, was sent by the Complainant to the Respondent on September

4, 2001, and a copy of this Complaint was also sent to the concerned Registrar,

Global Domains International #30019 on September 4, 2001.

3.7 On September 12, 2001, the WIPO Arbitration and Mediation Center ("the

Center") transmitted via email to Global Domains International #30019 a

request for registrar verification in connection with this case and on August

16, 2001, the Center received a verification response confirming that the domain

names are registered with Network Solutions, Inc. and that the Registrant for

the domain names is the Respondent.

3.8 In accordance with Rules, Paragraph 4(c), the formal date of the commencement

of this administrative proceeding was September 28, 2001.

3.9 On September 28, 2001, Respondent received a Notification of Complaint

and Commencement of Administrative Proceeding from the Center informing the

Respondent that an Administrative Proceeding had been commenced by Complainant

in accordance with the Uniform Domain Name Dispute Resolution Policy, adopted

by the Internet Corporation for Assigned Names and Numbers ("ICANN")

on August 26, 1999 ("the Policy"), the Rules for Uniform Domain Name

Dispute Resolution Policy, approved by ICANN on October 24, 1999 ("the

Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute

Resolution Policy ("the Supplemental Rules").

3.10 On October 23, 2001, the Respondent was determined to be in default for

failing to submit a Response.

3.11 The single Panel member, Cecil O.D. Branson, Q.C., submitted a Statement

of Acceptance and Declaration of Impartiality and Independence and was duly

appointed on November 5, 2001, in accordance with paragraph 15 of the Rules.

The Panel was required to forward its decision to the Center by November 19, 2001.

3.11 The Panel finds that it was properly constituted and appointed in accordance

with the Rules and the Supplemental Rules.

4. Factual Background

4.1 The Complainant in this administrative proceeding is a public limited company,

Koninklijke Philips Electronics N.V. whose principal place of business is Groenewoudseweg

1, 5621 BA Eindhoven, The Netherlands. It is incorporated in The Netherlands.

4.2 The Respondent in this administrative proceeding is Relson Limited, an

entity situated in the United Kingdom, with an address at 26 Mill Bank, Wellington,

Telford, Salop.

4.3 The trademark "Philips" has been registered by the predecessors

of Koninklijke Philips Electronics N.V. (KPENV), in the Netherlands, since 1891

and is registered in numerous jurisdictions worldwide, including Western Samoa.

4.4 According to www.website.ws printout made on August 16, 2001, the

domain name <philips.ws> was created on March 10, 2000.

5. Parties’ Contentions

A. Complainant

5.1 The whole of the "Factual And Legal Grounds" component of the

Complaint in this case is, verbatim, as follows:

This Complaint is based on the following grounds:

That the trademark Philips has been registered by the predecessors of Koninklijke

Philips Electronics N.V. (KPENV), in the Netherlands, since 1891 and is registered

in numerous jurisdictions worldwide. The trademark Philips is synonymous with

a wide spectrum of products varying from consumer electronics to domestic appliances,

and from security systems to semiconductors. Philips brand name is the company’s

most important asset as it has spent substantially on supporting its brand worldwide.

In accordance with Rules, para. 3(b)(ix), the following are our representation:-

1. The domain names in question are identical and/or confusingly similar to

the Philips trademark registered by the Complainant in which it has rights to.

2. The Respondent has no rights or legitimate interests to the domain names

as it has been registered primarily for the following reasons:-

(a) For the purpose that the domain name was registered in order to prevent

the owner of the trademark or service mark from reflecting the mark in a corresponding

domain name, in the Western Samoa.

(b) For the purpose speculating on the profitability of the domain names as

the domain names were not used and the Respondent was not commonly known by

the said domain name [Space Imaging LLC v. Stephen J. Brownell, eResolution

Case No. AF 0298a-0298d];

(c) For the purpose that the Complainant has not licensed or otherwise permitted

the Respondent to register the domain name incorporating the word Philips within

the domain name [Nokia Corporation v. Nokiagirls.com a.k.a. IBCC, WIPO

Case No. D2000-0102; Veuve Clicquot Ponsardin v. Net-Promotion, Inc.,

WIPO Case No. D2000-0347]; and

(d) For the purpose of disrupting the business of the Complainant. Before any

notice was communicated to the Respondent of the dispute, there was no evidence

of the Respondent’s use of, or demonstrable preparations to use the domain name

or a name corresponding to the domain name in connection with a bona fide offering

of goods or services. In addition, no attempt was made after the Respondent

received a letter from the Complainant explaining its concern of the registration

of the domain name.

3. As evident from the above reasons, the registration of the domain name has

been clearly registered in bad faith for the following reasons:-

(a) the registration was based on a domain name speculation without real intent

to use. The Respondent has not communicated to the Complainant any plan for

a bona fide use of his domain name.

(b) the registration of the domain name in question causes unfairness and is

certainly detrimental to the business of the Complainant as the mark is influential

in the field of business it was registered for in the Western Samoa. It deprives

the general public, particularly in the Western Samoa access to the Complainant

and vice versa.

(c) it could easily be inferred or concluded that since the domain name does

not resolve to an active website, that the Respondent had the intention of transferring

the domain name for valuable consideration, perhaps in the future [Space

Imaging LLC v. Stephen J. Brownell eResolution Case No. AF 0298a-0298d].

(d) the Respondent has not responded or leveled a challenge to the content/averments

in the Complainant’s cease/desist letter relating to the domain name [Telstra

Corporation Limited v. Nuclear Marshmallows WIPO

Case No. D2000-0003; Pharmacia & Upjohn AB v. Dario H. Romero

WIPO Case No. D2000-1273]. In addition,

the Complainant has attempted contacting the Respondent via the Contact Domain

Owner service provided by the Registrar on its website but did not receive a

response. The Complainant had requested the assistance of external lawyers to

attempt to get more information on the Respondent’s contact details. Thereafter,

the Complainant attempted to contact the Respondent via fax and telephone as

well as via post, having obtained the information from the UK Companies House.

(e) the Respondent registered the domain name to perhaps intentionally create

a likelihood of confusion as to the source, sponsorship or affiliation with

the Complainant’s mark, particularly in the Western Samoa AltaVista Company

v. West Coast Entertainment, Inc [NAF Case No. FA0007000095265];

(f) the registration took place with an intention to sell or transfer to the

Complainant for profits.

(g) the Respondent had clearly no demonstrable plan to use the domain name

for a bona fide purpose prior to registration or acquisition of the domain name.

B. Respondent

5.2 The Respondent did not reply to the Complaint or otherwise participate

in the proceedings.

C. No Other Submissions

5.3 The Panel has not received any requests from Complainant or Respondent

regarding further submissions beyond the Complaint, and the Panel has not found

it necessary to request any further information from the Parties. (Taking note

of the Respondent’s default in responding to the Complaint).

6. Discussion and Findings

6.1 The Complaint was submitted on the basis of the provisions of the Registration

Agreement in effect between the Respondent and Global Domains International

#30019 which incorporates, by reference, the Policy in effect at the time of

the dispute. The Policy requires that Domain Name Registrants such as Respondent

submit to a mandatory Administrative Proceeding regarding third-party allegations

of abusive Domain Name registration (Policy, paragraph 4(a)).

6.2 Such Administrative Proceedings are conducted by ICANN-approved dispute

resolution service providers such as WIPO. The Policy provides an administrative

means for resolving disputes concerning allegations of abusive Domain Name registration,

subject to referral of the dispute to a court of competent jurisdiction for

independent resolution (Policy, paragraph 4(k)).

6.3 The Policy, and the Rules, establish procedures intended to assure that

Respondents are given adequate notice of proceedings commenced against them,

and a reasonable opportunity to respond (see, e.g., paragraph 2(a), Rules).

6.4 The Panel is satisfied that the Center took all steps reasonably necessary

to notify the Respondent of the filing of the Complaint and initiation of these

proceedings, and that the failure of the Respondent to furnish a reply is not

due to any omission by the Center.

6.5 Paragraph 15(a) of the Rules addresses the principles to be used in rendering

a decision:

"A Panel shall decide a Complaint on the basis of the statements and documents

submitted and in accordance with the Policy, these Rules and any rules and principles

of law that it deems applicable."

6.6 In order to obtain the relief requested under the Policy, Complainant must

prove in the Administrative Proceeding that each of the three elements of paragraph

4(a) are present:

(i) that the Domain Name registered by the Respondent is identical or confusingly

similar to a trademark or service mark in which the Complainant has rights;

(ii) that the Respondent has no rights or legitimate interests in respect of

the Domain Name;

(iii) that the Domain Name has been registered and is being used in bad faith.

6.7 Paragraph 4(a) of the Policy advises all registrants for Domain

Names that in accordance with the terms of their Registration Agreement that

they will be required to submit to a mandatory administrative proceeding in

the event that a third party (a "Complainant") asserts to the applicable

Provider (in this case WIPO), in compliance with the Rules of Procedure, that

"the Complainant must prove that each of these three elements are present."

Each of the three stated elements are made up of a number of facts, each of

which has to be proven in order for the Complainant to succeed. For instance,

in 4(a)(i) the Complainant must prove that (1) the Complainant has rights in

a trademark or service mark and (2) the Domain Name being challenged is identical

or confusingly similar to that mark. Facts are proven through evidence that

is accepted by the Administrative Panel appointed. For evidence to serve this

purpose, it should be shown to be both credible and material. The word "material"

means that it is rationally probative of material facts in issue. Simply put,

could a reasonable person use this evidence to support the material fact which

is sought to be proved? In each case, the parties are, in turn, given an opportunity

to assert that such-and-such evidence proves a material fact. Then, the material

facts so proven, in turn, are used to prove each of the three elements required.

To summarize, each of the three elements depend on proof of their constituent

material facts. Proof of each of these facts is dependant on evidence which

is accepted by the tribunal adjudicating the dispute. Mere "assertions"

are nothing more than argument and must in each case be based on facts proved

through evidence.

6.8 The appropriate standard for fact-finding in these cases is the

civil standard of a preponderance of the evidence. Under the preponderance

of the evidence standard, a fact is proved for the purpose of reaching a decision

when it appears more likely than not to be true based on the evidence.

(See: Madonna Ciccone, p/k/a Madonna v. Dan Parisi and "Madonna.com"

WIPO Case No. D2000-0847) Under the "preponderance

of the evidence" standard a fact is proved for the purpose of reaching

a decision when it appears more likely than not to be true based on the evidence.

(See: Madonna Ciccone, p/k/a Madonna v. Dan Parisi and "Madonna.com"

WIPO Case No. D2000-0847)

6.9 Numerous Panels have decried Complaints where "[t]he Complainant makes

the usual (boilerplate) bare assertions that the Respondent’s Domain Name is

identical or confusingly similar to the Complainant’s mark, that the Respondent

has no legitimate interest or rights in the Domain Names, and that the Respondent

registered the Domain Name and is using it in bad faith [and] provides no specific

reasons for these bare assertions." (See: Jones Apparel Group, Inc.

v. jonesapparelgroup.com, WIPO Case No. D2001-0719.)

The Panel in that case went on to say: "However difficult [it] might have

been, it was for the Complainant to plead this issue and to support it with

some argument and evidence. It has chosen not to do this, and it is not this

Panel’s role to perfect a poor pleading." This Panel agrees with that comment

and also that Panels do not need to address assertions which are not raised

by Complainants. (See: Chambre de Commerce et d’Industrie de Rouen v. Marcel

Stenzel, WIPO Case No. D2001-0348) See also,

with regard to the danger of bare assertions by Complainants Club Monaco

Corporation v. C. Gindi, WIPO Case

No. D2000-0936; Tyco International Services AG and Tyco International

(US) Inc. v. Paul Quinn, WIPO Case No.

D2000-1740, or Respondents see: Arturo Salice S.p.A. v. Paul Izzo &

Company, WIPO Case No. D2000-0537;

Sloan Capital Companies, Stuart M. Sloan v. Sloan E-mail Services, WIPO

Case No. D2001-0138; and Serena Williams and Venus Williams v. Eileen

White Byrne and Allgolfconsultancy, WIPO

Case No. D2000-1673.

6.10 In this case, the Respondent has failed to file a Response. This, admittedly,

may present some problems for the Complainant, particularly in regard to whether

the Respondent has any rights or legitimate interests in respect of the Domain

Name. An appropriate approach to this situation has been advanced in Link

Clicks Inc. d/b/a Ad Here and TOTALLYFREESTUFF.COM v. John Zuccarini d/b/a Cupcake

Patrol, WIPO Case No.D2000-1547, where

the Panel states at page 7:

"The fact that the Respondent has not provided a Response to the Complaint

does not relieve the Complainant of the burden of proving its case. In the absence

of a Response, Paragraph 5(e) of the Rules expressly requires the Panel to ‘decide

the dispute based upon the complaint’. Under Paragraph 14(a) of the Rules in

the event of such a ‘Default’ the Panel is still required ‘to proceed to a decision

on the complaint’, whilst under Paragraph 14(b) it ‘shall draw such inferences

therefrom as it considers appropriate.’ It is clear that this does not mean

a default decision is automatically to be issued in favour of the Complainant.

If that were the intended result then there would be no need to appoint a Panel

to decide the dispute. Consequently, the Panel must assess the Complaint on

its merits."

That Panel went on to say further in this regard at page 9:

"The Panelist notes that the Respondent did not expressly challenge any

of the assertions in the complaint. However, this cannot simply be taken as

an admission of all the claims in the Complaint. The Respondent might conceivably

have taken the view that the Complainant had failed to make a case meriting

a response. The Panelist may be entitled to draw reasonable inferences from

the Respondent's lack of response but, in this Panelist's view, it is not justifiable

to go so far as to acknowledge a claim to unregistered rights which is

inadequately substantiated. The Policy requires a Complainant to prove

that it has relevant rights, not merely assert that such rights exist."

See also County Bookshops Limited v. Guy Loveday, WIPO

Case No. D2000-0655.

Another Panel has said much the same thing, but put it in a slightly different

way, which is that it ought not to draw inferences from a default other than

those that have been established or can fairly be inferred from the factual

assertions that are made and supported by evidence submitted by the Complainant

and that, as a result of the default, have not been rebutted by any contrary

assertions of fact. (Terabeam Corp. v. Colin Goldman, WIPO

Case No. D2001-0697).

6.11 Nothing which has been said above ought to be taken as a condemnation

of what many previous Administrative Panels have accepted as evidence. The ICANN/UDRP

and Rules provide for a more or less summary process which in most cases will

be both inexpensive and speedy. Therefore, sworn witness statements are not

required (although this Panelist has such affidavits filed), nor is it expected

that technicalities such as the hearsay rule will be rigidly enforced. This

said, the source, mode and timing of statements based on information and belief

ought to be identified. As one Panel has said, "acceptable evidence of

the use of a trademark by the Complainant would be copies of invoices, advertising

and brochures". See Arturo Salice S.p.A. v. Paul Izzo & Company,

WIPO Case No. D2000-0537. A Panel can

use the Internet itself as a common source for evidence which is open for everybody,

particularly the publicly accessible Internet web site associated with the disputed

Domain Names: Terabeam Corp. v. Colin Goldman, WIPO

Case No. D2001-0697; Kur- und Verkehrsverein St. Moritz v. StMoritz.com,

WIPO Case No. D2000-0617. The same may

be done for other publicly available information: Tough Traveler Ltd. v.

Kelty Pack Inc. Mike Scherer, and Inkling Pen Co., WIPO

Case No. D2000-0783 (news articles, advertisements). Panels have used earlier

Panel findings of a trademark being well known and therefore reference to these

can be helpful: AT&T Corp. v. CME Inc., WIPO

Case No. D2001-1060. These are not exhaustive, merely illustrative. Also,

it should go without saying that the admissibility and weight of evidence in

the form demonstrated by these examples, as with any evidence, will depend on

the circumstances of each case.

6.12 UDRP 4(a)(i) The Domain Name registered by Respondent is Identical or

Confusingly Similar to a Trade Mark or Service Mark in which the Complainant

has Rights

Panels have held that more than bare assertions are needed with regard to this

element. (See Club Monaco Corporation v. C. Gindi, WIPO

Case No. D2000-0936; Tyco International Services AG and Tyco International

(US) Inc. v. Paul Quinn, WIPO Case No.

D2000-1740) However, it has been said that where, on its face, the Domain

Name is clearly identical that this will be sufficient proof. (See: COMSAT

Corporation v. TELE Satellite WIPO Case No.

DTV2001-0011) In support of the essential contention that the Complainant

has rights in a trademark or service mark, it is normally the case that copies

of the registrations are provided, or at least registration numbers given. That

was not done in this case. All that were provided were copies of trademark renewals

of the Western Samoa registration. While this is a country-coded domain, the

primary place of business of both parties is elsewhere than Western Samoa, as

is the registrar. Furthermore, the web-site in question will be accessible throughout

the Internet. In light of the decision reached in regard to the two further

elements that must be proved under the Policy, this Panel sees no need to make

a finding on this first element, but for the purposes of this case will assume

it to have been proved.

6.13 UDRP 4(a)(ii) Respondent has No Rights or Legitimate Interests in Respect

of the Domain Name

Para. 4(c) of the Policy, with the heading "How to Demonstrate Your Rights

to and Legitimate Interests in the Domain Name in Responding to a Complaint"

says:

While this

"When you receive a complaint, you should refer to Paragraph 5 of the

Rules of Procedure in determining how your response should be prepared. Any

of the following circumstances, in particular but without limitation, if found

by the Panel to be proved based on its evaluation of all evidence presented,

shall demonstrate your rights or legitimate interests to the domain name for

purposes of Paragraph 4(a)(ii) …"

appears to contradict the earlier suggestion that Complainant bears the onus

throughout the proceedings, that is not quite so. Previous Panels have differed

in their approach to this issue. These differences are illuminated in Do

The Hustle, L.L.C. v. Tropic Web, WIPO

Case No. D2000-0624. It indicates that some Panels have said the Respondent

need do nothing in the absence of affirmative proof by the Complainant that

the Respondent has no rights or legitimate interests in respect of the Domain

Name at issue. (See VeriSign, Inc. v. VeneSign, C.A., WIPO

Case No. D2000-0303; Gassan Diamonds B.V. v. Van Etten Bernardus Jacobus,

eResolution Case No. AF-0149a; AF-0149b; Beijing Pernod Ricard Winery Co.

Ltd. v. Capital Enterprises Group, Inc., eResolution Case No. AF-0177; Vanguard

Medica Limited v. Theo McCormick, WIPO

Case No. D2000-0067; Penguin Books Limited v. The Katz Family and Anthony

Katz, WIPO Case No. D2000-0204) Other

Panels have dealt with this problem by reducing the burden of proof upon the

Complainant to one which is "relatively light". (See: Educational

Testing Service v. Netkorea Co., WIPO

Case No. D2000-0087; Europay International S.A. v. Eurocard.com, Inc.,

EuroCard.org, and Chad Folkening, WIPO

Case No. D2000-0173). Yet other Panels have suggested that we should assess

the failure of the Respondent to provide any evidence that comes within the

wording of para.4(c) when determining whether a Complainant meets his burden

of proof under para. 4(a)(ii) (See: Wal-Mart Stores, Inc. v. Walmarket Canada,

WIPO Case No. D2000-0150). The greatest

number of Panel decisions have held that the interaction between para.4(a)(ii)

and 4(c) is such that the obligation is on the Complainant to make out a prima

facie case and that having done so, it is for the Respondent to demonstrate

the contrary (See: Document Technologies, Inc. v. International Electronic

Communications, Inc., WIPO Case No. D2000-0270;

Newman/Haas Racing v. Virtual Agents, Inc. WIPO

Case No. D2000-1688) That Panel went so far as to say that failure of a

Respondent to come forward with such evidence is tantamount to admitting the

truth of Complainant’s assertions in this regard as this information is uniquely

within the knowledge and control of the Respondent. As for whether it is sufficient

for the Complainant to make a prima facie case, it has been held that where

the Domain Name is Complainant’s well-known name and there is evidence the Complainant

had not granted the Respondent a licence to use the Complainant’s name, this

will suffice. (See: Newman/Haas Racing v. Virtual Agents, Inc. WIPO

Case No. D2000-1688).

Some of the Complainant’s assertions in this case are troubling. To begin with,

it is alleged that the "Respondent has no rights or legitimate interests

to the domain names [sic] as it has been registered primarily

for the following reasons". This is difficult to understand in that the

word "primarily" could mean in the context it is used, first in order

of reasons. But there are four reasons given, and none of them relate to those

things which the Respondent is expected to prove, but rather to factors more

in the realm of the bad faith element of the Policy. Therefore, it would appear

that there are not even assertions unmet by the failure of the Respondent to

file a Response.

This Panel therefore finds that the second essential element required under

UDRP 4(a)(ii) has not been proved. It is fortified in this decision by

reference to the decision of another Panel in Koninklijke Philips Electronics

N.V. v. Jaaska (or Jääskä) Kaketti, WIPO

Case No. D2001-0231, where there was more evidence provided in respect of

this element than in this case. See also Koninklijke Philips Electronics

N.V. v. Manageware, WIPO Case No. D2001-0796.

6.14 UDRP 4(a)(iii) The domain name has been registered and is being used in

bad faith.

It is also necessary that the Complainant go beyond mere assertions in proving

the essential element of bad faith. For instance, in QAS Systems Limited

v. Hopewiser Limited, WIPO Case No. D2001-0273,

the Panel found that Complainant failed to prove bad faith when it failed to

advance any evidence to show that the Respondent might have had the Complainant

in mind when registering the Domain Name, saying the Panel should have been

provided with relevant information to support assertions about material facts.

The apparent basis upon which the Complainant appears to allege bad faith

relates to the reasons it has given for the earlier elements covered including

Respondent having no rights or legitimate interests in the Domain Name which

this Panel has found not to have been shown to the requisite standard and burden

of proof. Nevertheless, this Panel will deal with each of the specific allegations.

(a) The registration was based on a domain name speculation without real intent

to use. The Respondent has not communicated to the Complainant any plan for

a bona fide use of his domain name.

In AFMA, Inc. v. Globemedia, WIPO Case No.

D2001-0558, it was held that the mere allegation that Respondent failed

to return phone calls or provide information to the Complainant will not demonstrate

bad faith as there is no obligation that a party respond to letters or otherwise

provide information to a challenger in advance of a lawsuit. Indeed, the Complainant’s

complaint about the Respondent not having communicated to the Complainant any

plan for a bona fide use of his Domain Name can be read as an assertion that

the Respondent had a right subject to communicating any plan for a bona fide

use of his Domain Name.

(b) The registration of the domain name in question causes unfairness and is

certainly detrimental to the business of the Complainant as the mark is influential

in the field of business it was registered for in the Western Samoa. It deprives

the general public, particularly in the Western Samoa access to the Complainant

and vice versa.

It must be noted that there is no explanation as to what it is that is unfair,

beyond the mere assertion. Further, there is no evidence whatsoever that the

Complainant has been deprived of access to the general public in Western

Samoa "and vice versa", as a result of any act of the Respondent.

(c) It could easily be inferred or concluded that since the domain name

does not resolve to an active website, that the Respondent had the intention

of transferring the domain name for valuable consideration, perhaps in the future

[Space Imaging LLC v. Stephen J. Brownell, eResolution

Case No. AF 0298a-0298d].

This is the same sort of assertion which the Panel in Strongarm Designs

v. Arisu Tech WIPO Case No. D2001-0776 felt

to be inappropriate. The Space Imaging case, relied upon in the Complaint,

is distinguishable as in that case the simultaneous registration by the Respondent

of four "highly related" Domain Names were found to have lent credence

to the inference.

(d) The Respondent has not responded or leveled a challenge to the content/averments

in the Complainant’s cease/desist letter relating to the domain name [Telstra

Corporation Limited v. Nuclear Marshmallows, WIPO

Case No. D2000-0003; Pharmacia & Upjohn AB v. Dario H. Romero,

WIPO Case No. D2000-1273]. In addition,

the Complainant has attempted contacting the Respondent via the Contact Domain

Owner service provided by the Registrar on its website but did not receive a

response. The Complainant had requested the assistance of external lawyers to

attempt to get more information on the Respondent’s contact details. Thereafter,

the Complainant attempted to contact the Respondent via fax and telephone as

well as via post, having obtained the information from the UK Companies’ House.

It has been held that such failure to expressly challenge any of the assertions

in the Complaint cannot be taken as an admission of all the claims in the Complaint

as the Respondent might conceivably have taken the view that the Complainant

had failed to make a case meriting a response. The Policy requires a Complainant

to prove that it has relevant rights, not merely assert that such rights

exist. (See: Link Clicks Inc. d/b/a Ad Here and TOTALLYFREESTUFF.COM v. John

Zuccarini d/b/a Cupcake Patrol, WIPO Case

No.D2000-1547; County Bookshops Limited v. Guy Loveday, WIPO

Case No. D2000-0655). Another Panel has held that it ought not to draw any

inferences from a default other than those that have been established or can

fairly be inferred from the facts presented by the Complainant and that, as

a result of the default, have not been rebutted by any contrary assertions of

evidence. (See: Terabeam Corp. v. Colin Goldman, WIPO

Case No. D2001-0697).

With regard to the assertions concerning attempts to contact the Respondent

and not receiving a response, the Complainant does not give particulars other

than it "had requested the assistance of external lawyers to attempt to

get more information on the Respondent’s contact details." The Panel is

not told who associated with the Complainant attempted to do so, nor how it

was done. Nor do we know what information was received from the U.K. company’s

address. Further, the cease/desist letter which was annexed to the Complaint

indicates that it was not sent to the Respondent, but rather to an entity known

as Relson Internet Ltd. Why this was done is not explained.

(e) The Respondent registered the domain name to perhaps intentionally create

a likelihood of confusion as to the source, sponsorship or affiliation with

the Complainant’s mark, particularly in the Western Samoa AltaVista Company

v. West Coast Entertainment, Inc., NAF Case No. FA0007000095265]

Here, we do not even have a bare assertion, but only a "perhaps".

(f) The registration took place with an intention to sell or transfer to the

Complainant for profits.

Again, there is no supporting evidence, much less facts proved to support

this assertion. Indeed, the evidence is that when the Respondent was contacted

(if it was) there was no attempt to sell the name which would have been expected

if this had been its intention. It is a given that the Policy requires proof

both of bad faith registration and bad faith use, although in some cases bad

faith use has been found to follow bad faith registration. (See William Hill

Organization Ltd. v. Lisa Jane Statton, WIPO

Case No. D2000-0827) Others have held that where the Complainant has introduced

no evidence that Respondent has used the Domain Name at all, much less in bad

faith, this is not good enough. (See Loblaws, Inc. v. Presidentchoice, Inc/Presidentchoice.com,

eResolution Case No. AF-0170a—AF-0170c) There should be some other evidence

such as the registration of names in bulk, offers to sell, the Respondent conducting

the same business as the Complainant, etc.

It has been held that a finding of bad faith may be made where the Respondent

"knew or should have known" of the registration and use of the trademark

prior to registering the Domain Name. (See Becton, Dickenson and Company

v. Garry Harper, WIPO Case No. D2001-1058)

However, this might prove bad faith registration, but not necessarily use.

(g) The Respondent had clearly no demonstrable plan to use the domain name

for a bona fide purpose prior to registration or acquisition of the domain name.

Again, we are left with a bare assertion.

The appropriate way to deal with whether bad faith use follows from bad faith

registration has been set out by the Panelist in Telstra Corp. Ltd. v. Nuclear

Marshmallows, WIPO Case No. D2000-0003,

para. 7.8 – 7.11 inclusive. As he says, "it is possible, in certain

circumstances, for inactivity by the Respondent to amount to the domain

name being used in bad faith." He then goes on to explain that this understanding

of para.4(a)(iii) is supported by the actual provisions of the Policy where

only one of those circumstances (para. 4(b)(iv)) by necessity, involves a positive

action post-registration undertaken in relation to the Domain Name (using the

name to attract custom to a web site or other online locations).

"The other three circumstances contemplate either a positive action or

inaction in relation to the domain name. That is to say, the circumstances identified

in paragraphs 4(b)(i), (ii) and (iii) can be found in a situation

involving a passive holding of the domain name registration. Of course,

these three paragraphs require additional facts (an intention to sell, rent

or transfer the registration, for paragraph 4(b)(i); a pattern of conduct preventing

a trade mark owner’s use of the registration, for paragraph 4(b)(ii); the primary

purpose of disrupting the business of a competitor, for paragraph 4(b)(iii))."

In conclusion on this issue the Telstra Panel asked the question "what

circumstances of inaction (passive holding) other than those identified in paragraphs

4(b)(i), (ii) and (iii) can constitute a domain name being used in bad faith?"

He goes on to say:

"This question cannot be answered in the abstract; the question can only

be answered in respect of the particular facts of a specific case. That is to

say, in considering whether the passive holding of a domain name, following

a bad faith registration of it, satisfies the requirements of paragraph 4(a)(iii),

the Administrative Panel must give close attention to all the circumstances

of the Respondent’s behaviour. A remedy can be obtained under the Uniform Policy

only if those circumstances show that the Respondent’s passive holding amounts

to acting in bad faith."

The Complainant in this case has fallen very far short of this mark in the

opinion of this Administrative Panel for the reasons given above. Again, this

Panel is fortified in this decision by the rulings of previous Panels in Koninklijke

Philips Electronics N.V. v. Jaaska (or Jääskä) Kaketti, WIPO

Case No. D2001-0231, and in Koninklijke Philips Electronics N.V. v. Manageware,

WIPO Case No. D2001-0796.

7. Decision

7.1 This Administrative Panel accordingly directs that the registration of

the Domain Name <philips.ws> not be transferred to the Complainant.

Cecil O.D. Branson

Sole Panelist

Dated: November 15, 2001

More cases by this complainant

• Koninklijke Philips Electronics — D2002-0740 · Terminated
• Koninklijke Philips Electronics v. Wallack, Jonathan J. — D2002-0526 · philipsoutlet.com, philipsoutlet.net, philipsoutlet.org · Transfer · 15 Jul 2002
• Koninklijke Philips Electronics — D2002-0266 · Terminated
• Koninklijke Philips Electronics v. Alan C. Horswill — DTV2002-0004 · buyaphilips.tv, widescreenphilips.tv · Transfer · 30 Jul 2002
• Koninklijke Philips Electronics — D2001-0836 · Terminated
• Koninklijke Philips Electronics v. Manageware — D2001-0796 · myphilipslighting.com, myphillips.com · Complaint denied · 10 Oct 2001

Other cases for this domain

• Koninklijke Philips Electronics N.V. v. Relson Limited — DWS2002-0001 · philips.ws · Complaint denied · 14 Jun 2002