Andtech Corporation just lost its attempt to grab the domain name andtech.com from the domain owner Portmedia Domains/Portmedia Holdings Ltd which was represented by Ari Goldberger of Esqwire.com
The Complainant Andtech got its trademark on Christmas Day 2012.
The domain name owner registered the domain September 4, 2003.
The Complaint offered $1,000 for the domain and the domain owner responded with a $20,000 offer to sell.
Instead of buying the domain the complaint decided to spent $5K or more to file this pretty crappy UDRP which the panel threw out however failed to find Reverse Domain Name Hijacking (RDNH) although I don’t know why
Here are the relevant facts and findings by the three member panel:
Complainant states that the term “Andtech” in its ANDTECH trademark is a coined term used since 1990. Furthermore, there is no dictionary meaning for the term “Andtech” according to Complainant.
According to Complainant, Respondent’s rejection of Complainant’s offer to purchase the disputed domain name for $1,000, and subsequent demand of $20,000 in exchange indicates Respondent’s lack of rights or legitimate interests in the disputed domain name.
Complainant adds that Respondent is not using the disputed domain name to make a bona fide offering of goods or services. Andtech Corporation emphasizes that Respondent has used the disputed domain name since 2004 to attract Internet users to its web portal, and as a result collects revenue from Internet users seeking Complainant’s business.
With respect to the issue of “bad faith” registration and use, Complainant contends that Respondent’s request of $20,000 for the disputed domain name constitutes an attempt “to profit from the sale of the Domain Name to Complainant.” Andtech Corporation reports that Respondent’s website features an offer to sell the domain name to anyone wishing to make an offer. Furthermore, according to Complainant, Respondent registered the disputed domain name for the purpose of redirecting Internet users, seeking Complainant’s business, for its own commercial gain from pay-per-click fees.
“The Panel finds that the trademark in which Complainant has rights and the disputed domain name are identical; that Respondent has rights or legitimate interests in the disputed domain name; and that the domain name was not registered and is not being used in bad faith.”
The Panel concludes that Complainant has not sustained its burden of proving that Respondent has no rights or legitimate interests in the disputed domain name.
The Panel is persuaded that Respondent is using the domain name in connection with a bona fide offering of goods and services and is making a fair use of the domain name.
Upon review of all the evidence, the Panel finds that Respondent’s use of a disputed domain name to feature pay-per-click links was a bona fide offering of goods and services.
The Panel concludes that the disputed domain name was not registered and is not being used in bad faith. The Complainant’s reliance on Respondent’s alleged use of a privacy service does not convince the Panel that the domain name was registered in bad faith. Nor does the fact that Respondent presumably earns income from its pay-per-click site.
The evidence indicates that Respondent has not registered or used the andtech.com domain name in bad faith having not violated any of the factors listed in Policy ¶ 4(b) or engaged in any other conduct that would constitute bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
Furthermore, according to the Panel, Respondent’s offer to sell the disputed domain name does not constitute bad faith use and registration.
The evidence further indicates that Respondent had no intent to sell the domain name to Complainant under Policy ¶ 4(b)(i) when Respondent registered the disputed domain name.
In addition, the standard link “To purchase this domain, click here,” appears on all of Respondent’s hosted websites, and is not used to attract Internet users to the site by creating a likelihood of confusion with the trademark.
Therefore, the Panel agrees that Respondent’s attempt to sell the disputed domain name was not done in bad faith pursuant to Policy ¶ 4(b)(i).
As per the evidence, there was no attempt on behalf of Respondent to disrupt or compete with Complainant’s business. Respondent uses the disputed domain name to post auto-generated pay-per-click ads for technology related items and does not target Complainant’s business.
Upon review of all evidence, there is no proof of bad faith registration or use relating to the andtech.com domain name because Respondent had no reason to know about Complainant or its alleged common law trademark.
Previous panels have found that actual knowledge of a complainant and its mark must exist for a finding of bad faith.
Doctrine of laches
Having regard to the evidence and submissions and to the fact that the proceeding can be determined on more substantive issues, the Panel declines to find that the doctrine of laches should operate as a defense in this case.
Respondent claims that Complainant waited over ten years from the date the disputed domain name was registered to initiate this Complaint and that this delay can indicate that Complainant did not believe that Respondent engaged in abusive domain name registration.
However, the elements required to apply the defense of laches have not been met given that no detriment has been shown.
For those reasons the Panel declines to apply the doctrine of laches as a defense.