US based Cobrajet, Inc., instructed one of its employees to register the domain CobraJetAviation.com, with subsequent compensation of his expenses.
According to the ensuing UDRP, the now former employee refused to provide access to the accounts managing the domain and the web site.
The Respondent is Cobra Jet, Cobrajetaviation, with an address in Cairo, Egypt, and the sole WIPO panelist found some irregularities. In a nutshell, there was no indication of bad faith registration or use in this domain. Additionally, the panelist noted that both the trademark application and the disputed domain name were made in the name of Cobra Jet Egypt, i.e. not the Complainant’s company. They also added:
The Panel notes for completeness that although it considers that this case is not suitable for determination under the Policy, neither of the Parties should regard this Decision as indicating that the Panel condones or endorses the alleged conduct of the Respondent as described by the Complainant in its submissions.
Final decision: deny transfer of the domain CobraJetAviation.com to the Complainant, despite no response from the Respondent. Full details on the decision follow:
The domain transfer was denied.
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ADMINISTRATIVE PANEL DECISION
Cobrajet, Inc. v. The Endurance International Group, Inc, DOMAIN PRIVACY SERVICE FBO REGISTRANT / Cobra Jet, Cobrajetaviation
Case No. D2020-22641. The Parties
The Complainant is Cobrajet, Inc., United States of America (“United States”), represented by Badawi Law, United States.
The Respondent is The Endurance International Group, Inc, DOMAIN PRIVACY SERVICE FBO REGISTRANT, United States / Cobra Jet, Cobrajetaviation, Egypt.
2. The Domain Name and Registrar
The disputed domain name <cobrajetaviation.com> is registered with FastDomain, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 27, 2020. On August 28, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 4, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 10, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on September 14, 2020.
The Center verified that the Complaint together with the amendment to the 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 September 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 6, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 8, 2020.
The Center appointed Andrew D. S. Lothian as the sole panelist in this matter on October 22, 2020. 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
Very little is known regarding the Complainant in this case as the Complaint is somewhat perfunctory. Based upon its name and stated place of business, the Panel assumes that the Complainant is a United States corporation. The Complaint states that the website associated with the disputed domain name advertises the same services provided by the Complainant’s business, and from this the Panel deduces that the Complainant is in the business of air charter (the Panel having visited said website to conduct limited factual research into matters of readily accessible public record, see section 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
Although the Complaint states that COBRAJET is the Complainant’s registered trademark, the evidence produced in support of this appears to be a certified translation of a document that purportedly contains confirmation by the Egyptian General Administration for Trademarks dated February 2, 2020 of receipt of trademark application No. 0407075 filed on January 26, 2020 for a figurative mark consisting of Arabic writing, a cobra/winged logo, and the words “COBRA JET”. Said application appears to have been made by an individual on behalf of a joint stock company named Cobra Jet Aviation with an address in Cairo, Egypt. The original of said document has not been produced by the Complainant along with the certified translation.
The Respondent is Cobra Jet, Cobrajetaviation, with an address in Cairo, Egypt. The disputed domain name was registered on February 7, 2020. As noted above, the website associated with the disputed domain name appears to advertise an air charter business based in Egypt. In places, said website mentions the domain name <cobrajet.org>. Nothing can be gleaned from the WhoIs record of the latter domain name, consulted by the Panel, the listed registrant of which is a privacy service. The corresponding website consists of a single page featuring imagery which is also used on the website associated with the disputed domain name.
5. Parties’ Contentions
A. ComplainantThe Complaint is short and is repeated here by the Panel verbatim:
Identical or confusingly similar
“a. In February of 2020, Claimant directed its employee, [name redacted by the Panel], to acquire the domain www.cobrajetaviation.com on behalf of Claimant.
b. Upon information and belief, [name redacted by the Panel] did acquire the domain and paid for it using a personal credit card. Claimant then reimbursed him the full cost of the domain name.
c. [name redacted by the Panel]’s employment with Claimant has since ended but he has refused to allow Claimant access to the website.
d. Rather, [name redacted by the Panel] has linked his own email address to the website account and has the only password to access the website and make edits thereto.
e. Cobrajet is Claimant’s registered trademark. A copy of the registration is attached hereto as Annex No. 4.
f. Claimant contacted the registrar, FastDomain, Inc. d/b/a BlueHost, requesting that it be given the user ID and password to access the website.
g. BlueHost has refused to provide this information without a “court order” directing it to do so.
h. Accordingly, and pursuant to registrar’s domain dispute policy, Claimant has had to file this Complaint and initiate this action in order to recover its ownership of the website.
i. The domain name contains Claimant’s trademark and the website advertises the same services provided by Claimant’s business.”
Rights or legitimate interests
“j. Respondent has no rights or legitimate interests in respect of the domain name.
k. Respondent is not legitimately using the domain name, he has simply locked Claimant out of the website that it purchased and which bears its name.”
Registered and used in bad faith
“The domain name is being used in bad faith as the user knows that he is not permitted to use the website and has failed and refused to relinquish same to claimant.”
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The present case does not represent the typical case of cybersquatting which the Policy was designed to address. The dispute appears to arise from an employment relationship and/or a business dispute between the Parties, which raises more fundamental issues. Such a dispute, relating to an alleged employee’s registration of a domain name on an alleged employer’s instructions and his subsequent refusal to transfer it to said employer, gives rise to questions of breach of contract, breach of fiduciary duty, and potentially local employment laws, all of which are more appropriately decided in a court or employment tribunal, not before a UDRP panel (see this Panel’s decision in David Cruz Hernandez Mendoza v. Registration Private, Domains By Proxy, LLC / Amado Kinjiro Yamasaki Hernandez, Amado Yamasaki, WIPO Case No. D2019-0437).
The above constitutes sufficient grounds for rejection of the Complaint. Nevertheless, the Panel wishes to draw the Complainant’s attention to the fact that the Complaint would probably have failed on two separate grounds had it been subject to a full review on the merits. First, insufficient evidence has been produced to show that the Complainant owns a trademark as required by paragraph 4(a)(i) of the Policy. The certified translation produced by the Complainant appears to relate to a pending Egyptian trademark application, in that it is described as a “lodgment application statement” and expressly states “The Trademark is not registered yet and does not have the right of legal protection by Law No. 82 for year 2002 and its executive regulations issued by the Prime Minister Decree No. 1366 for year 2003 until this date […]”. Section 1.1.4 of the WIPO Overview 3.0 notes that a trademark application would not by itself establish trademark rights within the meaning of paragraph 4(a)(i) of the Policy. In any event, said certified translation was not accompanied by the original document which it purports to translate, and it is not clear whether the mark, even if it is now registered, belongs to the Complainant rather than to the named Egyptian owner entity based in Cairo. The Complainant would also need to have shown that said entity either was the Complainant or was suitably affiliated with it, or provided sufficient material from which any such affiliation could reasonably have been inferred. Alternatively, the Complainant could have shown that said mark had been licensed to it by such entity (see section 1.4 of the WIPO Overview 3.0 regarding the standing of a trademark owner’s affiliate or licensee).
Secondly, the Complainant’s submissions are insufficient on their own to demonstrate registration in bad faith. The Complainant asserts that its employee registered the disputed domain name at the Complainant’s direction and was reimbursed for this. It may be that the Complainant had certain expectations about how and in what name the disputed domain name should have been registered, but there is no evidence before the Panel that any specific directions were given to the Respondent which were not complied with, which might have led to an inference of bad faith on the Respondent’s part. Such evidence as there is indicates that both the trademark application and the disputed domain name were made in the name of Cobra Jet Egypt, i.e. not the Complainant’s company. While this apparently runs afoul of an assumption by the Complainant as to how it expected the registration to be made, without something more, it does not prove the Respondent’s bad faith action or intent on balance of probabilities.
The requirement to show both registration and use in bad faith under the Policy is conjunctive, and failure to demonstrate the first of these aspects would have led to failure of the Complaint on that ground alone.
The Panel notes for completeness that although it considers that this case is not suitable for determination under the Policy, neither of the Parties should regard this Decision as indicating that the Panel condones or endorses the alleged conduct of the Respondent as described by the Complainant in its submissions. The Panel also notes that its Decision is without prejudice to any action which a relevant court may deem appropriate or necessary and is not addressed to any particular forum that may ultimately be seized of the matter.
7. Decision
For the foregoing reasons, the Complaint is denied.
Andrew D. S. Lothian
Sole Panelist
Date: November 5, 2020
