WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Vrindavan Today Foundation v. Alexander Shenkar, Vrindavan Today

Case No. D2018-2263

1. The Parties

The Complainant is Vrindavan Today Foundation of Vrindavan, India, represented by S.S. Rana & Co., India.

The Respondent is Alexander Shenkar, Vrindavan Today of Dallas, Texas, United States of America (“United States”).

2. The Domain Name and Registrar

The disputed domain name <vrindavantoday.org> (the “Disputed Domain Name”) is registered with NameCheap, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 5, 2018. On October 5, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On October 5, 2018, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on October 17, 2018.

The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 19, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 8, 2018 and then extended to November 12, 2018 in accordance with the Respondent’s request. The Response was filed with the Center on November 12, 2018. The Respondent sent an email communication on the same day, requesting the Center to confirm its receipt of the Annexes to the Response. The Complainant sent an email communication on November 13, 2018 regarding the accessibility of the Annexes to the Response.

The Center appointed Nick J. Gardner as the sole panelist in this matter on November 23, 2018. 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. Factual Background

This is a dispute between the Complainant, which is an Indian charitable foundation on the one hand, and the Respondent, who is a Hare Krishna monk, on the other. It concerns a domain name which includes the word “vrindavan” combined with the generic word “today”. Vrindavan is a place in India. It also appears to the Panel from the evidence that has been filed to be a word which has some wider religious or spiritual meaning though neither party has explained this with any clarity. The evidence that has been presented to the Panel is disorganised and incomplete and is difficult to understand and follow. In this section the Panel will simply summarise what seem to it to be the basic uncontested relevant facts. Further information as to the facts appears in the sections below dealing with each party’s case and the Panel’s discussion (below).

The Disputed Domain Name was originally registered on June 1, 2010. It appears to have been used from about that date in connection with a blog or a website which appears to have promoted some form of spiritual enlightenment.

The Complainant is a non-profitable charitable foundation registered in India on August 16, 2014. It would seem that its objects are also to promote some form of spiritual enlightenment.

Circa June 2015 whoever was then the registrant of the Disputed Domain Name voluntarily transferred it to the Respondent. The Respondent since that date has linked the Disputed Domain Name to a website or blog which again appears to promote some form of spiritual enlightenment.

On March 26, 2018 the Complainant registered the domain name <vrindavantoday.com>. That domain name has subsequently been linked to a website or blog which again appears to promote some form of spiritual enlightenment.

There is no evidence before the Panel of any of the parties (or anyone else) deriving any commercial revenue from the Disputed Domain Name or any of the websites or blogs that have been placed in evidence.

5. Parties’ Contentions

A. Complainant

The Complainant says that it is engaged in “inter alia, charitable services in the nature of, primarily, social work, beautification of the religious places, environment, compassion for animals, human health services, religious tolerance, etc. under the name of ‘Vrindavan Today Foundation’”.

The Complainant appears to say that it has operated a news website devoted to the Vrindavan area linked to the Disputed Domain Name since 2010. It does not explain properly what it means in this regard given it did not exist until 2014.

The Complainant says it has applied for a trademark in respect of the words “Vrindavan Today” in India under application number 3846387 in class 41 dated May 29, 2018. This application is referred to in this decision as the “VT trademark application” and is discussed below.

As best the Panel can understand the Complainant’s case it accepts that the Domain Name was voluntarily transferred to the Respondent in June 2015. It essentially says that the Respondent was acting dishonestly and was pretending to be willing to offer technical and organizational assistance to maintain the Disputed Domain Name and promote the relevant spiritual content linked to the Disputed Domain Name, but in fact had a hidden and undisclosed agenda to take control of the Disputed Domain Name for his own purposes. It relies in particular on what it says is a screenshot of a passage written by the Respondent (the context of this screenshot is not clear to the Panel) which reads as follows:

“They haven’t booted the account yet.

I do plan to start an LLC for myself to start a media company, and I’ll incorporate VT into it.
Since ya’ll don’t have your things together, this will be the best solution.
You can then participate to the extent you’re capable of contributing.

It’s essentially a coup. I’m in possession of the domain and the data”.
The Complainant says the Respondent has been using the Disputed Domain Name to link to a website which improperly copies content from its own website (which is linked to <vrindavantoday.com>).
The Complainant says that the Disputed Domain Name is identical to its “vrindavantoday” trademark, and that the Respondent has no rights or legitimate interests in the term “vrindavantoday”.

The Complainant says that the Respondent’s registration and use of the Disputed Domain Name is in bad faith. This is expressed as follows “the Respondent has unlawfully hijacked the disputed domain name, which rightfully belongs to the Complainant and incorporates the Complainant's trademark ‘Vrindavan Today’, with ultimate mala fides, claiming the same as his own for undue advantage” and “it is apparent that the Respondent, with ultimate mala fides, has usurped control of the disputed domain name by deceiving the Complainant into believing that his intentions in doing so had been for the benefit of the Complainant and is now wrongfully alleging the said domain to be owned by him”.

B. Respondent

The Respondent says he is a Gaudiya Vaishnava devotee, better known in North America as a Hare Krishna. The Respondent says he visited Vrindavan, India in 2011 for several weeks on a religious pilgrimage visit with a group of fellow monks. The Respondent says that in 2014 he moved to live in “New Vrindaban”, West Virginia, which is a community located in Marshall County, West Virginia near Moundsville. He says this community “envisions New Vrindaban as a sacred village known worldwide for cow protection, simple living, holy pilgrimage, spiritual education, and, above all, loving Krishna”.

The Respondent says that he registered the Disputed Domain Name <vrindavantoday.org> in good faith with the intention of “connecting worldwide devotee community to the sacred space of Vrindavan”.

The Respondent says he acquired the Disputed Domain Name <vrindavantoday.org> on June 2, 2015, and that “there was no ‘competitor’”, and so therefore “there can’t be support for registering the domain for the purpose of ‘disrupting the business of the Complainant’”. Rather, he says, it is the Complainant who disrupted the business of the Respondent when “they created an unauthorized copy of vrindavantoday.org website, published it to vrindavantoday.com, and began to redirect visitors from vrindavantoday.org to vrindavantoday.com circa April, 2018”.

The Respondent points out that the VT trademark application has in effect been rejected. This is discussed below. He seeks a finding of Reverse Domain Name Hijacking as he says the Complainant has concealed this fact.

The Respondent says he has filed his own trademark application with the United States Patent and Trademark Office (“USPTO”) on June 1, 2018. The trademark application serial number is 87945003. This is discussed below. As of November 6, 2018 the trademark application has been published for opposition.

6. Discussion and Findings

The Panel will preface this discussion by noting that this is a case where the Panel has been provided with a large amount of material much of which is of peripheral relevance (at best). The Parties have failed to present to the Panel any clear explanation of the relevant background and facts, and the record in evidence of relevant events is incomplete and unsatisfactory in important aspects. As appears in the discussion below numerous individuals seem to be parties to various relevant events but their roles have not been explained. The Panel has had to review this material as best it can. The burden of proof lies on the Complainant to prove its case and it cannot expect the Panel to reach conclusions in its favour if it does not provide the essential evidence necessary to make good its case.

To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel in respect of the Disputed Domain Name that:

(i) the Disputed Domain Name is identical with or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and

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

A. Identical or Confusingly Similar

The Complainant asserts trademark rights in the term “vrindavan today” and relies upon the VT trademark application – see above.

In general a pending trademark application does not amount to rights for the purposes of the Policy - see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 1.1. In addition the Respondent has pointed out that application has been opposed – apparently by the examiner in the Indian Trade Mark Office citing lack of distinctiveness. The Respondent has not provided the official report but correspondence from a law firm responding to that report. It would appear to confirm that the Indian Trade Mark Office has objected to the VT trademark application on various grounds including the lack of distinctiveness of the word “vrindavan”. In the circumstances the Panel declines to find that the VT trademark application amounts to rights for the purpose of the Policy. The material exhibited by the Respondent also contains a declaration by a Jaggan Nath Poddar in which he states that he is the applicant for the trademark and the proprietor of the brand name “Vrindavan Today” and that he registered the Disputed Domain Name. The Panel does not know who he is.

That leaves open the possibility that the Complainant may have unregistered or common law rights in the term “vrindavan today”. The Panel simply does not know. This term combines a geographical name with the dictionary term “today”. This produces a term which is not in the Panel’s view inherently distinctive. It is however capable of having become distinctive through use – but that is something which needs to be established by relevant evidence. Whether that is the case here is not something the Panel can reach a conclusion on. No evidence has been provided as to the size or scale of the Complainant’s activities, or even what those activities actually involve. The Panel has no idea how many people read whatever material the Complainant produces or whether the Complainant does anything else apart from publish its website or blog. Accordingly the Panel finds the Complainant’s evidence is insufficient to establish it has trademark rights within the meaning of the Policy. The Panel would add that even if it is wrong in this regard the Complainant’s case would not succeed for reasons discussed further below.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name:

(i) before any notice to the Respondent of the dispute, 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; or

(ii) the Respondent has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or

(iii) the Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The Respondent in essence would appear to be arguing that (iii) applies. In view of the Panel’s findings under A above and C below the Panel does not consider it necessary to make a finding in relation to this issue.

C. Registered and Used in Bad Faith

In order to explain its finding on this issue the Panel will set out what it understands to be the relevant background. This involves a consideration of the chronological sequence of events so far as these can be determined from the material that has been placed in evidence.

Before considering this chronology it is appropriate to consider the word “vrindavan” itself. Vrindavan is a place in India but it also appears from the evidence to be a word (and a place) which has spiritual relevance to some people. This is illustrated for example by an extract from a webpage at “www.bvhaalliance.org” which the Complainant has placed in evidence. This contains minutes of a meeting between various individuals and a representative of UNESCO, the meeting apparently taking place on December 30, 2009. The minutes commence as follows:

“The meeting was started with a word of welcome from Sri Shrivatsa Goswami, who appreciated Sri Parasuramenen’s agreeing to a meeting on short notice while on a personal visit to Vrindavan.

Sri Shrivatsa stated that Vrindavan is unique in its natural heritage, its oral, spiritual and cultural heritage. Its literature, dance, music, theater, art and the approach of Bhakti, all have a distinct nature here.

Whilst he was aware that for those of us who live here it is also our home and we require the modern amenities of life, he said the aim was to find a way that the sacred nature of Vrindavan is not lost by unplanned urbanization. We have to consider that the local people have their needs and requirements but must also preserve what it is that makes Vrindavan different from any other place.

The existence of Vrindavan is because of Krishna, and without Him Vrindavan would not exist. Countless people visit Vrindavan every year because they are devoted to Krishna. We are here to play with Krishna Sri Shrivatsa said. He appealed to Sri Parasuramenen to bring in his and UNESCO’s expertise in giving Vrindavan world heritage site status”.

It appears to be common ground between the Complainant and the Respondent that Vrindavan is a word and/or place of spiritual significance.

The website at <bvhaalliance.org> (above) is published by the BVHA Alliance. BHVA appears to be an acronym for the Braj Vrindavan Heritage Alliance. It appears from the Complaint that this organisation may have some relevance to the Complainant but no clear explanation as to that relevance has been provided. The context and dates suggest it could conceivably be some sort of precursor organisation to the Complainant but the Panel does not know if that is correct.

The Disputed Domain Name was initially registered on June 1, 2010. The Complaint itself provides no information about who the original registrant was but it cannot have been the Complainant as a corporate body, which did not then exist as such. The filed evidence includes some emails discussing how the Disputed Domain Name was chosen which suggest the original registrant was a Mr. Zvonimir Tosic. The Complaint itself contains no information at all about Mr. Tosic. However filed with the Complaint is a list of exhibits which contains an entry describing Mr. Tosic as the “Systems Administrator for the Complainant”. However this cannot have been the case in 2010 because (as noted above) the Complainant did not then exist. The Panel is left without any further information in this regard. Note also that the correspondence with the Indian Trade Mark Office (above) shows a different individual asserting he was the registrant of the Disputed Domain Name which simply adds to the confusion of the present record.

It would seem a website was linked to the Disputed Domain Name at some stage in 2010. The Complainant has placed in evidence what appears to be a press release or news article publicising a website linked to the Disputed Domain Name, and dated November 27, 2010. The article bears a header “The News Agency of the International Society for Krishna Consciousness” and then a headline reading:

“Visit ‘Vrindavan Today’ Website”. Below this text appears after a photograph of a temple (described as “Madan Mohan temple, on the Yamuna, Vrindavan, 1789”). The text reads as follows:

“Vrindavan Today is a new website that offers daily news of Braj and Vrindavan Dhams — the temple and ashram life, special events, and environmental and heritage protection.

Vrindavan Today is a non-denominational, non-sectarian site dedicated to the uplift and positive development of the Dham. It is associated with the Braj Vrindavan Heritage Alliance.

The goals of Vrindavan Today are:

- to attract readers from all around the world to experience the spiritual, religious and cultural glories of Vrindavan and Braj,
- to build a community of Vrindavan vasis beyond the limits of any one institution or organization,
- to create awareness of the positive work that different individuals and institutions are doing in Braj/Vrindavan,
- to publicize vital issues related to the “bhauma” Vrindavan of today, especially those concerning heritage and environment,
- to become an important source of information about these issues, both past and present, and

- ultimately, to engage people actively in ways that will serve the practical interests of the Dham”.

In the absence of any evidence to the contrary the Panel proceed on the basis that the website linked to the Disputed Domain Name with effect from November 2010 published content broadly consistent with the above description.

On May 23, 2011 the Respondent sent a message via the contact form on the website linked to the Disputed Domain Name. This message was in the following terms:

“Subject: Contribution to the Vrindavan Today organization

Message Body:

Dear Editor, I’ve recently been to Vrindavan and I’m enchanted by the place. I would like to return and continue to photograph the people, events, and places. Would you be interested in accepting photographic contributions and using them in the stories? Thank you –Alexander.”

It would appear this message may have led to the Respondent becoming a contributor to the website though the Panel has not been provided with any information about the nature and extent of this contribution.

The next relevant event so far as the Panel can determine is shown in material filed by the Respondent which shows what seems to be an article on the website dated April 18, 2012, which reads as follows:

“Dear friends, lovers and well-wishers of Vrindavan Dham,

Due to lack of time and funding, it is not possible for me to continue with this project for the time being. If anyone wishes to sponsor this important endeavor so that we can get competent help and material facilities, we welcome their help.

Vrindavan Dham, Braj and India as a whole, are at a crossroads. Indeed, the entire world is facing tremendous challenges in the coming century. In many ways, Vrindavan is a microcosm of those challenges.

The clash between modernity, with its technological advances on the one side and its neo-liberal economic rapaciousness and consumerist ethic on the other, and spirituality, which values above all the internal evolution of the individual and one’s relation to God, other human beings and the environment, is perhaps nowhere more transparently manifest than here.

Vrindavan Today is meant to both chronicle what could well be the epic story of our age manifest he in the Holy Dham of Srimati Radharani, the supreme symbol of divine love as the goal of human life, and to serve the best outcomes.

We certainly hope that some friends and well-wishers will come forward to volunteer and support.

In the meantime, those knowing Hindi may consult the Hindi site for some of the latest news.

Jai Sri Radhe

Jagadananda Das.”

The Panel is unclear as to who Jai Sri Radhe and Jagadananda Das are or how they are connected to the Complainant.

The Panel has no further information about what happened until June 24, 2014 when an email was sent by the Respondent to Mr Tosic which read as follows:

“Dear Zvonimir,

Radhe - been a while since we last talked :-) I’d like to make the transition as easy as possible for you. It’s not necessary to be able to log into the WordPress dashboard as the admin to migration the site. Here are the two main things that we will need:

1) Database export. This support document shows you how to do it: http://wpengine.com/support/exporting-database/
2) FTP access to download the content.

This is these are the same steps we took the last time when the English site was migrated.

I looked up DreamHost support documents and I think these two may help you:

* http://wiki.dreamhost.com/PHPMyAdmin#Exporting_the_data
* http://wiki.dreamhost.com/Ftp#Resetting_your_FTP_User.27s_Password.

I can also do the above myself, but I would just need to have the credentials to log into your DreamHost account. I don’t know if you would feel comfortable with that - but if you are, then I can just take this task off your hands and do it myself.

As far as the domain, it looks like you have it registered with GoDaddy:

Registrar WHOIS Server: whois.godaddy.com
Registrar URL: http://www.godaddy.com

And it expires in October of this year:

Registrar Registration Expiration Date: 2014-10-23 05:18:50

I also have a GoDaddy account and I think you can follow these steps to transfer it over:

http://support.godaddy.com/help/article/822/moving-a-domain-name-out-of-your-account?locale=en

You probably need more details on where to transfer it to - and I can provide those details later. This last part is not so critical right now since there are a few more months.

Let me know if you have questions, and how I can best assist you.

Also - about WordPress.com, well, I’m a big fan of everything WordPress. Self-hosted WordPress installation is more maintenance compared to WordPress.com, but there is greater flexibility and options in terms of what you can do with WordPress. So that is the main reason why WordPress is the better solution. That way we have a greater selection of plugins and themes, and etc.

Hope you are well, -Alexander”.

This email appears to reflect previous discussions (details of these have not been provided to the Panel) and appears to contemplate the Respondent taking over the administration of the website linked to the Disputed Domain Name and as part of this arrangement having the Disputed Domain Name transferred to him. It would however seem this did not occur, as on June 1, 2015 the Respondent sent a further email to Mr. Tosic which read as follows:

“Hi Zvonimir!
Hope you are well! Long time no talk.
I noticed the domain vrindavantoday.org expired today.
I would like to take over the payments and domain registration so that we can continue to maintain it.
* Would that be ok with you?
You might have already received emails about the domain about to expire and payment info.
* Would you be able to forward that to me so that I can get that taken care of?
Also, this was my fault that I didnt follow up with the domain registration transfer, but I this is something that needs to be done for a long term solution.

If you’re using skype, I’m […]
Thanks!”

Although no reply has been placed in evidence the details set out in the Complaint would appear to confirm that the Respondent then registered the Disputed Domain Name in his own name, presumably with Mr. Tosic’s cooperation and agreement. The Respondent himself says “Circa June 2nd, 2015 the domain registration for vrindavantoday.org expired and the website went down. Zvonimir Tosic did not want to pay registration fees. At this point, the Vrindavan Today Foundation could have had the domain transferred to them. Instead, Jagadananda Das and Zvonimir Tosic agreed to provide Respondent with the EPP code to transfer domain registration to Respondent”.

Again the Panel has no information about what happened immediately thereafter. The next event reflected in the material in evidence (provided in this case by the Complainant) are emails sent in January 2017 from a Shriya Dah to the Respondent. The substantive content of these emails reads as follows:

“Shriya Dhar [mailto:shriya@[...]]
Sent: 27 January 2017 14:41
To: ‘[name]@gmail.com’

Cc: Vrindavan Today (vrindavantoday@[...])

Subject: http://news.vrindavantoday.org/
Dear Mr Alexander
I hope you are doing fine.
I am Shriya Dhar, looking after all the websites of Jiva company. Your contact details have been given to me by Jagananda Das ji and I want to know some info about the above mentioned website i.e. http://news.vrindavantoday.org/. Can you please let me know about the below:

1. Domain owner and where it has been registered
2. Technology used to develop the website
3. Server details on which the site is hosted
Regards.”

The Panel does not know who the Jiva company is or what (if any) relevance it has to these events. It is difficult to see what the significance of these emails is.

The Complainant then relies upon what it says is a statement by the Respondent shown in a screenshot it says was taken in March 25, 2018. It is not clear to the Panel what the context of this screenshot is as it has been provided in isolation with no explanation. It reads as follows

“They haven’t booted the account yet.

I do plan to start an LLC for myself to start a media company, and I’ll incorporate VT into it.

Since ya’ll don't have your things together, this will be the best solution.

You can then participate to the extent you’re capable of contributing.

It’s essentially a coup. I’m in possession of the domain and the data.”

Finally, the Complaint has placed in evidence some screenshots of some sort of message dialogue in 2018 between someone acting as an intermediary (the Panel does not know who it is) and the Respondent. These appear to be requesting the Respondent to transfer the Disputed Domain Name or face UDRP proceedings.

The Respondent for his part says that he registered <vrindavantoday.org> “in good faith of connecting worldwide devotee community to the sacred space of Vrindavan”.

It is very difficult indeed for the Panel to reach a conclusion based on this material. The Complainant’s case that the Respondent registered the Disputed Domain Name in bad faith is unsatisfactory. The weight of the evidence (such as it is) would suggest that the Respondent and the Complainant (or the individual or individuals who were responsible for originally registering the Disputed Domain Name) were, up to the date the Disputed Domain Name was transferred to the Respondent, acting cooperatively and the transfer was to enable the Respondent (who apparently shared the Complainant’s spiritual views) to carry on whatever activity had taken place before. The Complainant does not suggest otherwise but says in effect that the Respondent had undisclosed and ulterior motives. The Complainant’s case in this regard seems to rests on the single screenshot described above in which the Respondent refers to a “coup”. This is an unsatisfactory piece of evidence. The Complainant has not explained what it is, where it was taken from or what its context was. The Respondent for his part has not even commented on it. In those circumstances the Panel assumes it is authentic but finds it difficult to know what significance to attach to it. The Panel does not consider it appropriate to make a finding of bad faith against the Respondent based upon a single piece of evidence, which has been provided without any explanation of its background or context. More generally, there is no evidence before the Panel of any commercial activity so the dispute does not seem to be financial in nature. As matters currently stand the Respondent owns <vrindavantoday.org> and the Complainant owns <vrindavantoday.com>. Each accuses the other of plagiarising their respective content at websites linked to their domain names. The evidence before the Panel is such that it is impossible for the Panel to conclude which (if either) of these allegations is correct.

So far as the Respondent’s trademark application is concerned, it is for the words “Vrindavan Today” but includes a disclaimer of the word “Vrindavan”. It has not yet proceeded to grant. The Panel does not consider that this advances matters further.

The Policy is directed at cases of what is commonly referred to as “cybersquatting”. The Policy does not contemplate this Panel serving as a tribunal of general jurisdiction over any and all disputes which are somehow related to domain names. Furthermore proceedings under the Policy are of a limited and restricted nature, do not involve oral hearings, discovery or cross examination, and hence are only applicable to clear cut cases, and it is not usually appropriate to decide disputed questions of fact or matters of truth or falsehood save where evidence is advanced which is inherently incredible. The Panel does not consider this to be such a case. It is common ground that the Disputed Domain Name was voluntarily transferred to the Respondent. The Panel does not know whether or not the Respondent had ulterior motives at that time, as the Complainant now suggests, but the Policy is not the appropriate mechanism to investigate this type of issue. Accordingly this Panel finds that in this case it is unable to properly reach a conclusion on the conflicting cases advanced by each party and that as a result the issues raised in this proceeding (at least on the evidence before the Panel) are outside the scope of proceedings under the Policy and are properly decided by traditional (e.g., appropriate judicial) means. Therefore the Complaint should be dismissed. See, e.g., Clinomics Biosciences, Inc. v. Simplicity Software, Inc., WIPO Case No. D2001-0823.

7. Reverse Domain Name Hijacking

The Respondent seeks a finding of Reverse Domain Name Hijacking (“RDNH”). RDNH is defined under the Rules as “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name”.

Paragraph 15(e) of the Rules provides that, if “after considering the submissions the panel finds that the complaint was brought in bad faith, for example in an attempt at Reverse Domain Name Hijacking or was brought primarily to harass the domain-name holder, the panel shall declare in its decision that the complaint was brought in bad faith and constitutes an abuse of the administrative proceeding”.

The Panel does not consider the Complainant’s conduct warrants a finding of RDNH, given that it is unable on the evidence to reach a conclusion as to the existing dispute between the Parties, which it considers is better suited to resolution by appropriate judicial or other proceedings.

8. Decision

For the foregoing reasons, the Panel finds that the Complaint is denied. The Panel declines to find the Complaint was brought in bad faith.

Nick J. Gardner
Panelist
Date: December 7, 2018