#VR46 .com : Ridiculous #UDRP decision puts short #domain holders in danger

The UDRP decision for the domain VR46.com is utterly ridiculous.

Registered in 2006, the domain was used for email communications by its registrant, who operates a hosting services provider on another short domain, 34SP.com.

The decision acknowledges that there was no clear indication of a bad faith registration, particularly since the Complainant, Italian sports apparel manufacturer, Valentino Rossi, didn’t register the matching .it domain VR46.it until 2007.

A perfectly “random” domain consisting of letters and numbers was ordered by the WIPO panelist, Robert A. Badgley, to be transferred in this UDRP decision.

The panelist appeared “baffled” about the reasons behind the domain’s registration, and although the Respondent rejected offers by the Complainant to buy the domain, still gave them no benefit of the doubt.

Details about this ridiculous UDRP decision on VR46.com follow:

WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Valentino Rossi v. c/o 34sp Whois Opt Out Service, 34SP.com Limited / Jeff Wall, Mr Jeff Wall
Case No. D2017-2421

1. The Parties

Complainant is Valentino Rossi of Tavullia, Italy, represented by Ufficio Brevetti Pedrini e Benedetti, Italy.

Respondent is c/o 34sp Whois Opt Out Service, 34SP.com Limited of Manchester, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”) / Jeff Wall, Mr Jeff Wall of Barrow in Furness, United Kingdom.

2. The Domain Name and Registrar

The disputed domain name <vr46.com> (the “Domain Name”) is registered with Easyspace (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 6, 2017. On December 7, 2017, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. On December 8, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on December 19, 2017, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant sent an email communication on January 2, 2018, confirming to the Center that it did not wish to amend the Complaint.

The Center verified that 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 Respondent of the Complaint, and the proceedings commenced on January 4, 2018. In accordance with the Rules, paragraph 5, the due date for Response was January 24, 2018. Respondent transmitted several email communications to the Center on December 24, 2017, January 2, 4, 5, 8, 13 and 14, 2018. The Center notified the Parties of the commencement of panel appointment process on January 25, 2018.

The Center appointed Robert A. Badgley as the sole panelist in this matter on February 8, 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

Complainant engages in professional motorcycle sport and has won nine Grand Prix World Championships, seven of which occurred in the premier class.

For many years, Complainant has used his initials and his racing number 46 as a trademark for various goods, including a wide variety of racing apparel. The VR/46 mark has been registered in numerous jurisdictions, including European Union trademark for VR/46 with reg. No. 3519725, registered on April 22, 2005.

Complainant hosts a website at “www.vr46.it”, where his trademarked apparel is offered for sale.

The Domain Name was registered on September 11, 2006. The Domain Name resolves to a landing page created by a domain name hosting service known as “34sp.com.”

In May 2017, Complainant reached out to Respondent to seek to acquire the Domain Name on amicable terms. At that time, Complainant offered to purchase the Domain Name for EUR 300. Respondent stated that he had never posted any content at the website to which the Domain Name resolved, and rejected Complainant’s “inappropriately low” offer. He did indicate his willingness to discuss the matter further. Negotiations continued into September 2017, at which point Complainant offered EUR 2,000 for the Domain Name. On September 21, 2017, Respondent rejected that offer, again stating that he was willing to entertain a better offer. At that point, negotiations broke off.

5. Parties’ Contentions

A. Complainant

According to the Complainant, Complainant is “probably the most famous motorcycle champion in the world.” Complainant’s success as a motorcycle racer is well established, backed by several championships, by 2006. Complainant asserts that he has established all three elements required under the Policy for a transfer of the Domain Name.

B. Respondent

Respondent did not submit a formal response. Rather, he sent a series of disjointed emails to the Center between December 24, 2017 and January 14, 2018. Respondent asserts that he uses the Domain Name “as part of my daily life”. According to Respondent, he availed himself of the 34SP Whois Opt Out service to conceal his identity from persons who had been seeking to acquire the Domain Name from him. Respondent states that he has always declined to sell the Domain Name when asked to do so. He adds that, although he has never posted content at the website to which the Domain Name resolves, he uses its “secure hosting and services on a daily basis”. In another email, Respondent states that the Domain Name is “used for secure authentication to personal services such as my Mortgage provider and Bank”.

Finally, in yet another email, Respondent states that he has not acted in bad faith because he registered the Domain Name on September 11, 2006, before Complainant had registered his domain name <vt46.it> on March 20, 2007.

6. Discussion and Findings

Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:

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

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

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

A. Identical or Confusingly Similar

The Panel concludes that Complainant has rights in the mark VR46 through registration and use. The Domain Name is identical to Complainant’s mark.

Complainant has established Policy, paragraph 4(a)(i).

B. Rights or Legitimate Interests

Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:

(i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you [Respondent] have acquired no trademark or service mark rights; or

(iii) you [Respondent] are 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.

Respondent states that he has held the Domain Name for many years and has never posted any content related to Complainant or his mark at the website connected to the Domain Name. He also claims to use the Domain Name for personal use.

The Panel concludes that Respondent lacks rights or legitimate interests in the Domain Name. He has not explained why he chose to register the sequence of letters and numbers “vr46” as a domain name. Given the email exchanges between May and September 2017, it appears that Respondent was waiting for a lucrative offer to sell the Domain Name. The Panel is of the opinion that this cannot be considered a legitimate interest in the sense of the Policy.

Complainant has established Policy paragraph 4(a)(ii).

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”:

(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or

(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or

(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.

The Panel concludes on this record that Respondent has registered and is using the Domain Name in bad faith. The Panel finds it more likely than not that Respondent registered the Domain Name with Complainant and his VR46 mark in mind. At no point in his series of emails does Respondent deny knowledge of Complainant or his VR46 mark. Nor, as noted above, does Respondent ever furnish an explanation, plausible or otherwise, why he chose to register this particular sequence of letters and numbers as a domain name for personal use. Given the fame of Complainant, the renown of his widely-registered and used mark, and Respondent’s incomplete and implausible explanation, the Panel must conclude that Respondent targeted Complainant’s mark in his registration of the Domain Name.

The exchange between the parties in the period May-September 2017, during which Respondent rejected offers of EUR 300 and EUR 2,000 from Complainant – coupled with statements that he was willing to consider a better offer – lead this Panel to conclude that Respondent registered the Domain Name primarily for the purpose of selling Domain Name to Complainant for valuable consideration in excess of his documented out of pocket costs directly related to the Domain Name. The Panel finds that this conduct evidences Respondent’s bad faith under paragraph 4(b)(i) of the Policy.

Complainant has established Policy paragraph 4(a)(iii).

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <vr46.com> be transferred to Complainant.

Robert A. Badgley
Sole Panelist
Date: February 22, 2018

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