In July 2010, it attempted to acquire the disputed domain name africatours.fr. and following an exchange of emails, the Respondent offered to sell the Complainant the domain for $ 5000 Euros. The complainant appearently then offered 2,000 euros for the domain name which the domain holder rejected and the complainant then filed this action.
“The Complainant says that it has intellectual property rights in the disputed domain name since it holds the French semi-figurative mark Africatours No. 174 95 69, filed August 9, 1989 in classes 39 and 42.”
“The Complainant also considers that the domain name was registered in bad faith by the Respondent in order to resell at an inflated price, as evidenced by electronic mail exchange he had with him.”
“Defendant denies the infringement of the Complainant. It believes that registration of the disputed domain name does not create any likelihood of confusion because the site is not yet exploited and that the Respondent intends to dedicate its website to the achievement of a community-based website on Africa , its human, cultural and geographical. He said he travels extensively in Africa.”
“The complainant holds the domain names africatour.fr, africatour.com, africatours.pro.””
“It is indisputable that the Complainant proves that the rights to the phrase “Africatours” which was set out in the disputed domain name africatours.fr.”
“Registration or use of the disputed domain name in violation of the rights of others or the rules of competition”
The infringement of third parties is recognized when the domain name is identical to a name or could be confused with a name which is given a French intellectual property law.
The Complainant proves that he has an intellectual property right on the semi-figurative French Africatours.”
“That the disputed domain name is identical to the verbal element of the trademark. This identity leads necessarily a likelihood of confusion in the minds of average users attention.”
“The use of the disputed domain name infringes the rights of the Applicant. Indeed, the domain name, consisting of a term identical to the verbal element of the Complainant’s trademark, is likely to be confused with the mark. In addition, the disputed domain name does not refer to the active site and the Respondent attempted to sell his domain name at a price that seems excessive.”
“Finally, the Respondent does not justify any rights on the domain name, or a legitimate interest in using it and did not act in good faith.”
Here is my problems with this decision, first and foremost Africa Tours is generic and should not belong to one company on earth, as hundreds if not thousands of travel agents and travel sites offer “Africa Tours”
Second why is it bad faith for the domain owner to have a discussion of settling a dispute or offering to sell a domain when the other party engages in the same practice and only the amount is at stake.
What I’m saying is as the panel laid out the facts, the parties were negotiating for the sale and purchase of the domain with one party wanting to sell for 5,000 euros and the other party offering to buy for 2,000 euro’s and by virtue of that, one party is deemed to be engaged in bad faith while the other parties conduct was perfectly fine.
Another bad decision in my opinion.
Another disgraceful corrupt decision by a panelist,icann need to take these powers away and if people want the domain they have to go to court like everyhting else in society but the problem is Icann is just as corrupt as the panelists.
@Stu
Who really “owns” people’s domain names ?
The Registry ?
A Registrar ?
A Reseller ?
WIPO ?
ICANN ?
DNS Resolver Software in Set.Top.Boxes ?
AfricaTour.fr/.com/.pro isn’t even developed at all. AfricaTours.fr will forward to some under construction page too. Bad decision indeed
“one party is deemed to be engaged in bad faith while the other parties conduct was perfectly fine.”
Exactly. The buyer was satisfied to negotiate … until they could not get what they wanted. So they turn to UDRP abuse as their second option. Terrible.
Puke! That makes me sick.
Rightly Said:
So they turn to UDRP abuse as their second option.
But…
it may be the UDRP option was really there plan
from the beginning…
to get that electronic communication
to be presented in bad faith,
again…
to …ONE… non-domainer “person” chossen to be…. a PANEL (not)
Landon
They were willing to pay 2,000 euro’s once that was rejected they moved to a UDRP figuring it would be cheaper for them paying the 5,000 Euro offer price.
Had the domainer said yes to 2,000 euro’s guess that would have been a done deal.
However as noted by others, it seems UDRP is being used as a negotiation tool by those seeking to acquire domains rather than as an arbitrator of cases
@MHB
“UDRP is being used as a negotiation tool…”
and UDRP was made up out of thin air
by primarily FIVE people
Does anyone remember “The UDRP Five” ?
One panelist is the kiss of death.
@Rick Schwartz
“One panelist is the kiss of death.”
UDRP was “sold” to the masses as a .CHEAP legal solution.
“The UDRP Five” made it all up.
Five lawyers who continue to dominate The.Domains
I’ve said it before and I’ll say it again – if someone makes a bonafide offer to buy a name they should be disqualified from filing a UDRP.
@David J Costello
“disqualified from filing a UDRP”
That might reduce the Cash.Flow into the [Private] UDRP Legal.Community.
The Clerics and Insiders would not likely favor a reduction in .CASH to The.Communty
That new chalet in Geneva Switzerland is not cheap.
David
To me if you as a potential complainant go to a domain owner and ask about buying a domain and start talking prices, then its akin to entrapment if you come back and use that negotiation as a showing of bad faith
The respondent shouldn’t have had to respond to this flagrant abuse of trademark law. If this isn’t generic, I am nervous about the future of the domain industry.
Should domains owners be forced to recognize a self appointed panel
of self appointed unqualified judges in a Kangaroo type Court setting.
It really is just a rouse and deception for valuable legal discovery,
basically to see if you will spend to defend your ownership
in a REAL COURT OF LAW.
I am afraid that these OBVIOUS self interest groups
and all the behind the scene manipulators, have there days numbered,
http://www.icann.org/en/minutes/resolutions-25sep10-en.htm#1
Resolved (2010.09.25.07), the Board approves San Francisco, California as the location of the ICANN 2011 North America Meeting to be held from 13-18 March 2011, with a budget not to exceed US$1.941M.
I recently received an offer from someone to buy my domain operationbristol.com and I rejected it, but am now thinking about selling it. I listed it on Sedo and told the guy he could go through them, but he said he wants to do it privately, I told him no. Since then I have had 4 more offers, but none on Sedo. Am I in any copyright violations and maybe people would like to buy it privately so they can get it under the radar?