Decision

Australian Flylife Magazine loses UDRP over FlyLife.com

The Australian Magazine FlyLife Pty Ltd currently having official website at FlyLife.com.au, filed UDRP through it’s CEO Mr Leighton Adem, named as Complainant in the UDRP / WIPO Case Number D2020-1905 over the Domain name: flylife.com.

Flylife was established in 1995 and has registered Trademarks in Australia and New Zealand since 1996 and 2001 respectively. The Complainant allages that the Domain Name registered since 2001 has been parked and there has been no legitimate / bona-fide offering of goods and services. The parked page also advertises as Domain Name FlyLife.com on sale and the Respondent already had many UDRP decisions against hime, so all evidences Bad Faith.

The respondent in the matter was Mr Jaewan Lee from Republic of Korea, he submitted that Domain Name is composed of distionary words and is weak in nature. The Complainant is not known or famous to have rights in the domain name, when the disputed domain name has not been used in bad faith.

The Complaint has been analyzed on the solde ground of Bad Faith and denied as follows:

A. Identical or Confusingly Similar

As the element of bad faith was not satisfied, the Panel finds it unnecessary to address this element.

B. Rights or Legitimate Interests

As the element of bad faith was not satisfied, the Panel finds it unnecessary to address this element.

C. Registered and Used in Bad Faith

As the Complainant pointed out, the Complainant has trademark registrations for the FLYLIFE trademark in Australia and New Zealand, and the Respondent has had negative UDRP decisions rendered against him, which acknowledged the Respondent’s bad faith registration and use of several domain names. However, the Panel finds that the term “flylife” is not so unique as to suggest or raise a strong inference that the Respondent targeted the Complainant’s trademark and thus acted in bad faith when obtaining registration for or using the disputed domain name. In fact, there are several other parties using “flylife” as a trade name, including a clothing company in the United States of America, a biomedical company in Italy, and a fly fishing supplies company in Canada. Furthermore, while the Complainant cites prior UDRP cases involving the Respondent, these cases do not by themselves provide evidence of bad faith registration or targeting of the Complainant’s trademark by the Respondent in the circumstances of this case, and the Complainant has not otherwise provided evidence of such bad faith registration or targeting. The Panel also notes that linking a domain name to a domain parking site and advertising it for sale, while perhaps insufficient to demonstrate bona fide use, are not conclusive evidence of bad faith use. In that regard, this use of the disputed domain name does not support a finding of bad faith in these circumstances, noting, inter alia, the composition of the disputed domain name comprising two dictionary terms and the lack of evidence of targeting the Complainant’s trademark rather than the dictionary elements of such mark.

Accordingly, the Panel finds the record and evidence insufficient to reasonably establish this element.

Decision

For the foregoing reasons, the Complaint is denied.

Ik-Hyun Seo
Sole Panelist
Date: December 4, 2020

University of Missouri held for Reverse Domain Name Hijacking over Muhealthcare.com under UDRP

WIPO Case No. D2020-2693 (UDRP Process)

The Curators of the University of Missouri
… Complainant

Pamela Holley, MU Healthcare Victims
… Respondent

The Complainant is The Curators of the University of Missouri, United States of America, while the Respondent is Pamela Holley, MU Healthcare Victims, United States. The disputed domain name is Muhealthcare.com.

The University of Missouri was founded in 1839 in Columbia, Missouri (MO), USA. In addition to the teaching Institute it also runs a Healthcare Network that includes clinics and hospitals by the name University of Missouri Health Care, and has over USD 1 billions in revenue. Though the Complainant did not hold any registered Trademarksd but has been in operation since 2000 and claims to have unregistered Trademark Rights. It has active websites at www.muhealth.org and www.umsystem.edu. The Complainant provides evidence from Archive.org (Wayback Machine). It also provided ample evidence of advertising, sales, media recognition and awards since 2000 reflecting the renown of the Complainant’s healthcare system associated with the unregistered marks MU, MU HEALTH, and MU HEALTH CARE.

The Respondent Ms. Pamela Holley seems to had a bill dispute with the Complainant and hence she registered the Domain Name in 2003. An Article from 2008 evidence the fact and the same appeared on the website as well in December 2003 as evidence from Wayback Machine. Respondent invited complaints of other users havind had bad expereince at the Complainant’s facility. The website remained active until 2013 but later it got unattended due to busy schedule of the Respondent. And since early 2020 or later 2019 it became redirecting to another controlversial site Stormfront.org. The Respondent claims it to be for testing purposes.

Respondente denied having received any financial gain from the Domain Name and argues that there is a benefit in providing a forum for public commentary about the dominant and taxpayer-supported healthcare system in the region. The Respondent concludes:

“Complainant has made no effort to contact Respondent in 17 years. Respondent owns this domain and operates the ‘Victims’ website when active. The timing of this complaint, following the redesign of its website in 2017 and the results of the Complainant’s 2019 commissioning of a study of its ‘consumer recognition and perceptions of the MU Health Care brand’, as discussed in the Complaint, appears to have been the impetus for this complaint. The Complainant’s recent awareness there is a financial advantage to owning a .com extension on a variation of one the terms it uses does not justify the forced taking of that domain from its rightful and only historic owner, a private individual, and preventing its future reuse for free speech.”

The panelist while holding the mater to be of RDNH, states as follows:

A. Identical or Confusingly Similar

The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7.

The record includes evidence that an unregistered MU mark has been used since at least 1998, and it supports the Complainant’s claim to unregistered MU HEALTH and MU HEALTH CARE marks that probably acquired distinctiveness for health care services in the mid-Missouri region by October 2003 and thus could have been protected as common law marks, despite the Complainant’s failure to mark them as such or apply for registration. As usual, the generic Top-Level Domain (“gTLD”) “.com” is disregarded as a standard registration requirement. See WIPO Overview 3.0, section 1.11.2.

The Panel finds, accordingly, that the Domain Name is confusingly similar to the Complainant’s common law marks cited above and concludes that the Complainant has established the first element of the Complaint.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the respondent may establish rights or legitimate interests in the domain name, by demonstrating any of the following:

(i) before any notice to it of the dispute, the respondent’s 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) that the respondent has been commonly known by the domain name, even if it 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.

Because a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. The Complainant in this proceeding has demonstrated trademark rights and the lack of permissive use on the part of the Respondent, thus shifting the burden to the Respondent.

The Respondent claims a legitimate interest essentially for nominative fair use, to employ the Complainant’s name (and asserted mark) to refer to the Complainant for the relevant purpose of legitimate criticism, for what is sometimes known as a “gripe site” (see WIPO Overview 3.0, section 2.6). This defense would likely prevail, even without incuding obviously negative words in the Domain Name string, as all Parties are located in the United States and their rights can fairly be assessed with reference to federal constitutional First Amendment rights of free speech (see id.), had the Respondent carried on as she did for the first decade using the Domain Name for a legitimate criticism site. But she did not, and the Panel shares the prevailing view that rights or legitimate interests must be assessed at the time of the UDRP proceeding (see id., section 2.11). After approximately 2013, the Domain Name has been used for PPC advertising, allowing third parties (including competitors) to profit from the Complainant’s reputation, and, briefly, to redirect users to the Stormfront website, which has no relevance to the Domain Name string and plausibly tarnishes the Complainant’s mark as well as using it to raise funds. The Respondent cannot rely on the free speech justification of a former criticism site as her current “legitimate interests”.

The Panel concludes, therefore, that the Complainant prevails on the second element of the Complaint.

C. Registered and Used in Bad Faith

The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following (in which “you” refers to the registrant of the domain name):

“(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”

The Complainant cites these examples of bad faith as apposite, and the Complainant argues as well that the temporary redirection of the Domain Name to the Stormfront white supremacist website tarnished the Complainant’s marks. The difficulty for the Complainant is that the Policy requires the demonstration of bad faith both in the registration and the use of the Domain Name. One of the Complainant’s own law faculty observed in 2003, as quoted in the Complainant’s own newspaper, that the use of a domain name based on a trademark for a genuine “gripe site” is likely to be protected as free speech in the United States, as it is in UDRP proceedings between United States parties. The evidence in this case is that the criticism site was genuine and continued as such for a decade. The Respondent’s more recent use of the Domain Name would not be protected; it might even be actionable under United States law. But given the totality of the circumstances, the Panel cannot find that the Respondent likely harbored a secret intent, in 2003, to maintain a legitimate criticism website for ten years and then let it lapse into commercial exploitation or diversion to a website that the Complainant and its adherents would find particularly objectionable.

The Panel concludes that the Complainant has failed to establish the third element of the Complaint, bad faith.

Decision

For the foregoing reasons, the Complaint is denied.

Reverse Domain Name Hijacking

Although the Respondent did not request a finding of Reverse Domain Name Hijacking (RDNH), the Panel considers this an appropriate instance to enter such a finding.

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”.

It is generally accepted that mere lack of success of a complaint is not itself sufficient for such a finding of RDNH. Further discussion as to the nature of RDNH and examples of certain past cases under the Policy in which it has been found are detailed in WIPO Overview 3.0, section 4.16. The three-member panel in Yell Limited v. Ultimate Search, WIPO Case No. D2005-0091, observed that whether a complainant should have appreciated at the outset that its complaint could not succeed will often be an important consideration for the assessment regarding RDNH. The Panel believes this this is such a case.

A complainant should never underestimate the challenge of establishing bad faith in the registration of a domain name that was created nearly two decades ago. The Complainant here showed that it was capable of using available tools such as the Internet Archive’s Wayback Machine to establish its own common law trademark rights, and it is inexcusable that the Complainant did not employ such tools to establish when the Respondent obtained the Domain Name and how the Respondent used the Domain Name for ten years. Moreover, the Respondent here was not hidden; she registered the Domain Name in her own name (although also naming an organization that seems not to be established as a legal entity) and gave an interview to the Complainant’s newspaper within weeks after registering the Domain Name. She was then, and continues to be, an alumna of the Complainant and a patient in the Complainant’s medical system, about which she published comments. The Complaint attaches one of the articles published by the Complainant’s newspaper, but the Complainant apparently failed to uncover the more relevant original articles and, therefore, misleadingly speculated about the timing of the Respondent’s acquisition of the Domain Name. One of those articles even quoted a member of the Complainant’s own law faculty concerning the legal challenges that the Complainant would face in any action against the Respondent over the Domain Name, yet the Complaint does not address those obvious challenges arising from the Respondent’s registration and use of the Domain Name for a genuine criticism site. It may be possible somehow to argue for bad faith in the registration of the Domain Name on the facts of this case, but this Complaint reflects no credible effort to do so.

The Panel finds in these circumstances that the Complaint represents an instance of attempted Reverse Domain Name Hijacking.

W. Scott Blackmer
Sole Panelist
Date: December 3, 2020

Ya-Ya Shirt Company (Netherland) loses UDRP over Yaya.com

Ya-Ya Shirt Company Holding B.V. brought UDRP over generic 4 letter domain name Yaya.com, which has been registered to Mr Yang of China [WIPO Case No. D2020-2493]. The domain name yaya.com registered with eName Technology Co., Ltd. (the “Registrar”).

The basic issue that came up before the panlelist was as to the Language of the proceedings. As the proceedings need to use the language in which Registration Agreement is entered into with the Respondent. Here the same was Chinese. But Complainant insisted that it would cause unnecessary delay and substantial expense, while Respondent was also adamant to have proceedings in Chinese. Therefore the Panelits held:

Paragraph 10(b) and (c) of the Rules require the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293.

The Panel observes that in this proceeding the Complaint and amended Complaint were filed in English and the Response was filed in Chinese. The webpage to which the disputed domain name resolves is in both English and Chinese, from which it can be inferred that the Respondent is able to communicate in those languages. The Response refers to song lyrics in English, which confirms that inference. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay. On the other hand, the Complainant submits that it cannot understand the Response. The Panel recalls that the Rules basically provide for a single submission from each Party. The Panel sees nothing in the Response that the Complainant should not have anticipated in the amended Complaint. Therefore, the Panel considers that requiring the Respondent to translate the Response into English would create an undue burden and delay. The Panel does not consider that the above approach causes unfairness to either Party.

Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English but that the Panel will accept all submissions as filed in their original language, without translation.

The disputed domain name has registration date of November 1999. While the Complainant has been mainly oeprating within the country of Netherlands since 1992 while it started global operations since year 2000. The Trademarks of the Complainant have registration date since 1993 but global registrations are 2004 onwards only. But in any case, the Complainant satisfied the first condition as to identical similarity with the Trademark. While further factors as to date of use can be taken into account, while analyzing further UDRP conditions.

The Disputed domain name has never been put to use and previously is was put on sale. Panelist citing lack of demonstrable use, held it against the Respondent. Though YAYA is quite genericly used in Chinese language. Similar thing happened in the UDRP matter of Naturals.com. Accordingly:

The disputed domain name formerly resolved to a webpage that merely offered it for sale. The Complainant submits that the Respondent is not a licensee of the Complainant nor otherwise authorized to use the YAYA mark. At the time of this Decision, the disputed domain name no longer resolves to an active website. The Panel does not consider either use to be a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy.

The Respondent has identified himself in the Response as 杨林, which is transliterated in the Registrar’s WhoIs database as “Yang Lin”. There is no evidence that the Respondent has been commonly known by the disputed domain name within the meaning of paragraph 4(c)(ii) of the Policy.

The disputed domain name formerly resolved to a website that offered it for sale. It no longer resolves to any active website. The Panel does not consider either use to constitute a legitimate noncommercial or fair use of the disputed domain name for the purposes of paragraph 4(c)(iii) of the Policy.

In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

Turning to the Respondent’s arguments, he points out that “yaya” is a transliteration of various pairs of Chinese characters. He also asserts that it is his daughter’s nickname. He submits that he intended to create a website to express his love for his daughter and to use the disputed domain name with a games website. However, the Respondent does not allege that he has actually used the disputed domain name in this way and he provides no evidence of any demonstrable preparations to do so.

The Respondent argues that he lawfully registered the disputed domain name with the Registrar. However, the mere registration of a domain name does not create rights or legitimate interests for the purposes of the second element of the Policy, otherwise no Complaint could ever succeed, which would be an illogical result. See, for example, Pharmacia & Upjohn Company v. Moreonline, WIPO Case No. D2000-0134.

Accordingly, the Respondent has failed to rebut the Complainant’s prima facie case regarding the second element of the Policy.

Therefore, based on the record of this proceeding, the Panel finds that the Complainant has satisfied the second element in paragraph 4(a) of the Policy.

But the domain name just got saved due to the prior registration and no global presence of the Complainant Company in 1999, though there was an attmept to sale for US $1 million. So panel concluded No Bad Faith, for the following reasons:

The disputed domain name was registered on November 27, 1999, years before the Complainant’s trademark registrations for YAYA and years before all its trademark registrations for YA-YA outside the Benelux. The Panel will not consider these trademark registrations further because, where a respondent registers a domain name before a complainant’s trademark rights accrue, panels will not normally find bad faith on the part of the respondent. See WIPO Overview 3.0, section 3.8.1.

The disputed domain name was registered years after the Complainant’s trademark registration for YA YA SHIRT COMPANY, and months after it applied for its first trademark registration for YA-YA. Both registrations were made in the Benelux whereas the Respondent is resident in China. The Complainant submits that the disputed domain name is clearly intended to mislead and divert the Complainant’s customers. However, there is no evidence on record of use of the Complainant’s marks prior to the registration of the disputed domain name in 1999 and, by the Complainant’s own admission, it did not begin to sell goods outside the Netherlands until 2000, i.e., after the registration of the disputed domain name. While the Complainant registered its domain name <yaya.nl> shortly before the registration of the disputed domain name, there is no evidence on record that the website was active at that time: the Complainant provides archived screenshots of the Respondent’s webpage but only current screenshots of its own website. While the Complainant’s website includes a map of store locations in the Netherlands and neighbouring countries, there is no evidence of use of any of the Complainant’s marks anywhere else. There is no evidence of any third parties using any mark to refer to the Complainant or its goods and services. Accordingly, this evidence is not sufficient to give rise to an inference that the Respondent was aware, or should have been aware, of the Complainant’s marks at the time he registered the disputed domain name in 1999.

The Complainant submits that “yaya” means nothing in Chinese and that the Respondent has no reasonable justification for choosing the disputed domain name. However, the Panel notes that “yaya” is a transliteration of various pairs of Chinese characters including鸭鸭, 丫丫, 雅雅 and 芽芽with usages that have nothing to do with the Complainant. According to evidence provided by the Respondent, image and text searches in the Baidu search engine for these pairs of characters indicate that they variously refer to ducks, actors’ stage names and fictional characters’ names. Further, there are Chinese trademark registrations that consist of, or incorporate, the letters “yaya” in respect of a range of classes of goods and services, and many more that incorporate as their initial element characters that can be transliterated as “yaya”. Accordingly, there is no reason for the Panel to find that the Respondent’s registration of “yaya” in the disputed domain name implies some prior knowledge of the Complainant or its marks.

The Panel accepts the Complainant’s evidence that a domain name broker, acting on behalf of the Respondent, quoted an asking price for the disputed domain name of over USD one million in 2016. The Respondent’s website invited Internet users to contact that broker regarding the purchase of the disputed domain name and the Respondent is responsible for the broker’s representations in that regard. However, even though the Respondent has not documented any out-of-pocket costs directly related to the disputed domain name, the Panel is unable to draw the inference from the high price that the Respondent knew, or should have known, of the Complainant’s mark seventeen years earlier, in 1999, because there is no evidence of reputation of the Complainant or its marks at that time, and there are alternative plausible explanations for the choice of the disputed domain name.

The Complainant notes the close similarity between the webpage to which the disputed domain name resolves and the webpage to which the domain name <yanglin.cn> resolves, the passive holding of <yanglin.com>, and the use of a privacy service. The Panel sees nothing in this evidence that indicates bad faith in the circumstances of this case.

The Complainant also argues that the Registrar’s domain name portfolio is evidence of bad faith. However, the Complainant provides no evidence to support its assertion that the Registrar is “most likely” the Respondent nor any evidence that the Registrar has registered other domain names in bad faith.

The Complainant argues that it cannot sell its goods outside the Netherlands without the disputed domain name. The Panel finds this argument lacking in a factual basis.

Therefore, the Panel does not find that the disputed domain name has been registered and is being used in bad faith. The Complainant has failed to satisfy the third element in paragraph 4(a) of the Policy.

Decision

For the foregoing reasons, the Complaint is denied.

Matthew Kennedy
Sole Panelist
Date: December 2, 2020

RDNH finding in Ecourier.com (1997) against Canadian Company

In the WIPO matter of Soft Trust Inc. v. Todd Hinton, Ikebana America LLC [Case No. D2020-2640], a Canadian Company Soft Trust Inc. brought a domain dispute complaint before WIPO over the domain name Ecourier.com. Complainant company has been in to business since 2004 while registered Trademarks since 2008 for Ecourier in USA and Canada. Currently the Complainant operates business through ccTLD www.e-courier.ca.

The main contention of the Complainant has been passive holding of the domain nam since 2001, as no legitimate use of the domain name being made. Further, the Complainant allege that the Respondent owns hundreds of domain names in a bid to prove cybersquatting. And also states that the disputed domain name has been owned by the Respondent since 2005 only after the Complinant came into existence.

The Respondent is Todd Hinton, Ikebana America LLC of United States of America, who submits that he registered the domain name in 1997 with Network Solutions. The Domain Name has been with diffeent domain Registrars since then. The Respondent challenged the Contentions of the Complainant of having used the mark since 2004 and the fact that Complainant has customers in USA, in the absence of any supporting evidence.

Between 2007 till 2011, the Complainant contacted the Respondent for purchase of the Domain Name but the same was declined by the Respondent. The Respondent holds hundreds of domain names, which were registered before any similar Trademark as registered in USA. Many of the domain names in the portfolio redirect to the Respondent’s website www.ikebana.com.

The Panelist analyzed the UDRP clauses as follows and rules it be a case for reverse domain name hijacking !

1. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights.

The Respondent rightly concedes that the Complainant meets the first element of the Policy.

The design elements of the Design Trade Mark may be disregarded for the purpose of assessing confusing similarity (see section 1.10 of the WIPO Overview 3.0). Further, Top-Level Domains (“TLDs”) (i.e., the “.com” suffix) may be disregarded when comparing the similarities between a domain name and a trade mark (see e.g., Incase Designs Corp. v. Juliane Kuefer, WIPO Case No. D2012-2020, and cases cited therein). Therefore, the comparison is between the Disputed Domain Name and the textual elements of the Design Trade Mark (i.e., E-COURIER).

The Panel finds that the Disputed Domain Name is confusingly similar to the Design Trade Mark. The only difference between the marks is that the Disputed Domain Name does not contain a hyphen.

The Disputed Domain Name is also confusingly similar to the Word Trade Mark, despite the fact that the “.CA” element of the Word Trade Mark does not appear in the Disputed Domain Name.

The Complainant is successful on the first element of the Policy.

2. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lack rights or legitimate interests.

In this case, there is no evidence that the Respondent registered the Disputed Domain Name to trade off the Complainant’s rights, or that the Respondent’s intentions for the Disputed Domain Name were not and are not bona fide.

As outlined above, the Respondent presented evidence to demonstrate that he registered the Disputed Domain Name in 1997 and that he (or the company which he owned) has held the Disputed Domain Name continuously since that time. The Respondent registered the Disputed Domain Name well before the Complainant came into existence.

There is no indication that the Disputed Domain Name was registered in anticipation of the Complainant or its rights coming into being. Based on the evidence before the Panel, it appears that the Respondent genuinely planned to use the Disputed Domain Name for a business related to the industry in which is he employed and went as far as to apply for a trade mark for the term ECOURIER.COM. However, this business venture did not proceed and panels are typically required to assess rights and legitimate interests at the time of the dispute (see section 2.11 of the WIPO Overview 3.0).

For a number of years, the Disputed Domain Name has displayed a message reading “Sorry! This site is temporarily unavailable.” The Complainant contends that this is misleading and an attempt to disguise a pattern of the Respondent acquiring and stockpiling domain names. The Respondent contends that he has been using the Disputed Domain Name for email purposes and may use the Disputed Domain Name for a business venture in the future.

There is some evidence that the Respondent has used the Disputed Domain Name for email purposes. If the Respondent was to use the Disputed Domain Name in the future for a business similar to that operated by the Complainant, a question may arise as to which whether the Complainant or Respondent has a better claim to the “ecourier” name. The Panel will not speculate as to whether the Complainant or Respondent would be successful in such a scenario and such a dispute may be better resolved by way of court proceedings.

The facts at hand do not align neatly with one of the scenarios enumerated in paragraph (c) of the Policy. However, these scenarios are non-exhaustive and on balance, the Panel finds that the Respondent has established rights or legitimate interests in the Disputed Domain Name. This finding is based on the evidence that the Respondent:

– registered the Disputed Domain Name before the Complainant came into existence;

– applied to register a United States trade mark for E-COURIER.COM in 2001, approximately three years before the Complainant came into existence;

– at one time intended to use the Disputed Domain Name in relation to a bona fide business;

– has since made use of the Disputed Domain Name for email purposes; and

– has repeatedly rebuffed offers to purchase the Disputed Domain Name.

In light of the above, the Complainant does not succeed on the second element of the Policy.

3. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.

A. Registration in bad faith
To succeed in a complaint under the Policy, it is well established that under the third element of the Policy, a complainant must prove on the preponderance of the evidence is that the domain name in issue was registered in bad faith, i.e., was registered with the complainant and/or its trade mark in mind.

The Complainant was not incorporated until 2004, and would not have accrued rights in the Trade Marks until some time after that. As outlined above, the Respondent registered the Disputed Domain Name in 1997 (at least six years prior to the Complainant’s incorporation) and accordingly, it is not possible that the registration of the Disputed Domain Name could have been targeting the Complainant or its Trade Marks.

The Complainant has therefore failed to demonstrate that the Respondent registered the Disputed Domain Name in bad faith to target the Complainant.

B. Use in bad faith
The Complainant contends that the Respondent is passively holding the Disputed Domain Name for the purpose of disrupting its use by the owner of a corresponding trade mark and/or selling the Disputed Domain Name for profit in excess of any out-of-pocket costs. The Complainant pointed to the large number of domain names owned by the Respondent as evidencing a pattern of such conduct.

As outlined above, the Panel is satisfied that at one time the Respondent intended to use the Disputed Domain Name in relation to a business venture. The Respondent also presented evidence that he has frequently rebuffed offers to purchase the Disputed Domain Name and that he has used the Disputed Domain Name for email.

The Complainant also contends the Panel should make a finding that the Respondent’s passive holding of the Disputed Domain Name represents use in bad faith and refers to Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (the “Telstra Case”). The Panel is not convinced that the factors identified in the Telstra Case support a finding of bad faith use for the following reasons:

– The Complainant has not provided sufficient evidence to demonstrate that the Trade Marks have a strong reputation or are widely known (as in the Telstra Case) and it appears that a number of other business around the world operate under the names “ecourier” and “e-courier”.

– Unlike the Telstra Case, the Respondent in this case provided some evidence of actual or contemplated good faith use of the Disputed Domain Name, including an application for a trade mark for ECOURIER.COM as part of a now discontinued business venture.

– There is no evidence that the Respondent provided any false or misleading contact details to the Registrar, as was the case in the Telstra Case.

Further, the Panel has reviewed the long list of domain names owned by the Respondent (over 240) and cannot conclude from this list that the Respondent has engaged in a pattern of registering domain names to target trade marks held by the Complainant or third parties. Many of the Respondent’s domain names registrations are for descriptive terms (e.g., and ). In addition, a number of the domain names owned by the Respondent which the Complainant identified as being identical or confusingly similar to existing trade marks appear to have been registered before those trade marks were filed.

In light of the above, the Panel finds that the Complaint also fails on the third element of the Policy.

4. Reverse Domain Name Hijacking
The Respondent has requested a finding of Reverse Domain Name Hijacking (“RDNH”).

RDNH is defined in paragraph 1 of the Rules as meaning “using the Policy in bad faith to attempt to deprive a registered domain-name holder of a domain name.”

The Complainant’s entire case hinges on whether the Respondent registered the Disputed Domain Name before or after the Complainant acquired rights in the Trade Marks. However, the Complainant should have been aware that the Respondent individual and Respondent company were connected at the time it submitted its initial Complaint and further evidence of the connection was presented when the Registrar provided the registrant details and when the Respondent filed the Response. However, these matters were not addressed by the Complainant in the amended Complaint or Supplemental Filing respectively. The Complainant persisted with the Complaint when it was evident that the Disputed Domain Name had been subject to common control since 1997 and therefore pre-dated the registration of the Trade Marks (and even the Complainant’s incorporation) by a number of years. The facts which evidence this common control are as follows:

– As part of the initial Complaint, the Complainant provided a list of other domain names owned by the Respondent, the registrant details included for almost all of the domain names in this list refer to both the Respondent individual and Respondent company.

– The Complainant’s list of other domain names owned by the Respondent includes a number of domain names which incorporate the name “ikebana”.

– The Panel was able to establish a link between the Respondent company and Respondent individual via a simple Google search.

– The registrant details provided by the Registrar (and adopted in the Complainant’s amended response) refer to both the Respondent individual and Respondent company.

– The Respondent’s reply on July 15, 2008, to one of the Complainant’s offers to purchase the Disputed Domain Name listed the Respondent’s email address, which contained the name of both the Respondent individual and Respondent company.

– Had the Complainant performed a search for United States trade marks owned or applied for by the Respondent individual, it would have found application number 78042687 for ECOURIER.COM which was lodged on January 11, 2001.

– The Respondent provided a number of pieces of correspondence with various parties offering to purchase the Disputed Domain Name. The Respondent’s signature block in a number of these pieces of correspondence included the names of both the Respondent individual and Respondent company.

– The Respondent provided an invoice addressed to the Respondent company for the attention of the Respondent individual.

Further, the Complainant indicated in the Complaint that it had contacted the Respondent in 2012 but did not refer to its offer to the Respondent to purchase the Disputed Domain Name in 2008 (or several other offers identified by the Respondent) or provide a copy of the relevant correspondence. As a result, the Complainant’s explanation of its history with the Respondent was incomplete and previous panels have considered that intentional omission of relevant evidence may justify a finding of RDNH.

In addition, the Complainant’s allegation that the Respondent acquired the Disputed Domain Name to sell it for profit in excess of any out-of-pocket costs has no evidentiary support. It is wholly inconsistent with the fact, documented in the Response, that the Respondent has never offered or invited offers to sell the Disputed Domain Name and rebuffed the Complainant’s repeated offers to purchase the Disputed Domain Name. This correspondence was not disclosed by the Complainant.

The Panel finds that the Complaint was brought in bad faith and constitutes an abuse of the Administrative Proceeding.

5. Decision
For the foregoing reasons, the Complaint is denied.

John Swinson
Sole Panelist
Date: December 4, 2020

RDNH upon DAN listed Levelup.gg, dispute brought as negotiations failed

Complainant, Belgium based Levelup Management eSpots Consulting Company – Respondent, a Domain Name Specialist since 2013 – Domain investment / trading in domain names upheld – Complainant changed Twitter handle during Domain Dispute proceedings – Tobam decision upheld as Complainant filed Domain Dispute as negotiations failed – Complainant was first to approach for Domain Name purchase – Complaint denied and Reverse Domain Name Hijacking upheld (Respondent represented by Cylaw Solutions, India, second RDNH in November 2020 for Cylaw Solutions for client, previously in the UDRP matter of VertexMedical.com)

Domain Dispute Case No CIDRS0006

IN THE CASE OF THE DOMAIN NAME LEVELUP.GG

Level Up Management BV
(Complainant)

-v-

Steven Hartley / MediaName.com
(Respondent)

DECISION OF THE ADJUDICATOR

1. This Complaint is made in accordance with the Channel Islands Dispute Resolution Service Policy, the Terms and Conditions
for Domain Name Registration (GG/JE) of February 2017 (v17.02) , and the Channel Islands Domain Disputes Rules (CIDD Rules) .

2. THE COMPLAINANT

The Complainant in this administrative proceeding is Level Up Management BV which is a company incorporated in Belgium and
whose address contact details are:

Level Up Management BV (0744.391.361)
Frilinglei 77
2930 Brasschaat
Belgium

and the submission is signed by the Founder and CEO, Mats Adams. The complainant utilises the domain name levelupagency.eu.

3. THE RESPONDENT

3.1. The Respondent is listed in the registry records as Steven Hartley / MediaName.com of Philadelphia.

3.2. The Respondent was represented by Advocate Ankur Raheja, CyLaw Solutions, India, a lawyer registered with Bar Council of
Delhi, India as an Advocate, under registration no. D/93/2005.

4. DISPUTED DOMAIN
levelup.gg

(image source: fixtapp.com)

5. GROUNDS ON WHICH A COMPLAINANT MAY SUCCEED

5.1. The rules for a successful domain dispute are set out at at :-
http://disputes.gg/rules.html .

5.2. In simple terms in order to succeed, a Complainant must show that the registration is one of the following:

(a) An Abusive Registration at the time of Registration or Acquisition meaning that the Domain Name was registered or
otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of
or was unfairly detrimental to the Complainant’s Rights;

(b) An Abusive Registration by virtue or use meaning that has been used in a manner which has taken unfair advantage of or
has been unfairly detrimental to the Complainant’s Rights;

(c) A Registration that is Identical or Materially Similar to Rights held by the Complainant which rights are Infringed by
the Respondent’s registration or use of the domain;

(d) A Registration that breaches registered or common law rights held by the Complainant in respect of a name or mark (trade
mark) which is identical or similar to the Domain Name;

5.3. The Complainant must also show that

(a) the use of the Domain Name by the Respondent amounts to infringement of the Complainant’s rights (on the balance of
probabilities; or
(b) that the Domain Name, in the hands of the Respondent, is an Abusive Registration; or
(c) that the Domain Name has a Destabilising Use; or
(d) that the Respondent is using or threatening to use the Domain Name in a way which objectively may materially (or materially risks) damage the financial standing, security or reputation of the Island or the Channel Islands in particular.

5.4. The Rules set out a non-exhaustive list of what may constitute evidence of Abusive Registration which include:

(a) circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly associated with acquiring or using the Domain Name; or

(b) that the Domain Name constituted a blocking registration against a name or mark in which the Complainant has Rights; or

(c) that the Domain Name was registered or acquired for the purpose of unfairly disrupting the business of the Complainant;
or

(d) that the Domain Name was registered or acquired for the purpose of improperly requiring the Complainant to license advertising or other linkage on the site; or

(e) that the circumstances of use indicate on the balance of probabilities that the Respondent is using or threatening to use
the Domain Name in a way which objectively has confused or is likely to confuse people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant (and for these purposes the use of any statement on the website may be taken in to consideration); or

(f) the Domain Name was registered as a result of a relationship or intended relationship between the Complainant and the Respondent, and the Complainant has been using the Domain Name registration exclusively, (save under written licence the circumstances or terms of which are indicative of retained ownership and use by the Respondent in the event of termination) and has paid (or where applicable reimbursed payment) (whether in money or other valuable consideration) for the registration and/or renewal of the Domain Name registration.

5.5. The Adjudicator can take into account any Pattern of Abuse, for example where the Complainant can demonstrate that the
Respondent is engaged in a pattern of registrations where the Respondent is the registrant of domain names (under .gg or .je
or otherwise) which correspond to well known names or trade marks in which the Respondent has no apparent rights, and the Domain Name is part of that pattern. The Adjudicator can also take into account any false details in registration designed to hide the identity of the Registrant or their patterns of registration.

6. GROUNDS ON WHICH A COMPLAINANT MAY NOT SUCCEED

6.1. T here are also grounds upon which it is possible for the Adjudicator to determine that there was a legitimate registration of the domain and the rules set out a non-exhaustive list of factors which may be evidence that the Domain Name is not an Abusive Registration. These include:

(a) that before being aware of the Complainant’s cause for complaint (not necessarily the ‘Complaint’ under the CIDD), the Respondent has used or made demonstrable preparations to use the Domain Name or a domain name which is similar to the Domain Name in connection with a genuine offering of goods or services;

(b) that the Registrant has been commonly known by the name or legitimately connected with a mark which is identical or similar to the Domain Name for a significant period prior to Complaint and without notice of the existence of the Complainant and/or the Complainant’s rights; or

(c) that the Registrant has been commonly known by the name or legitimately connected with a mark which is identical or similar to the Domain Name for a significant period co-existently with the Complaint and without notice of the existence of the Complainant and/or the Complainant’s rights, such that estoppel, acquiescence or similar defences may apply; or

d) that the Registrant has made legitimate non-commercial or fair use of the Domain Name;

(e) that the Respondent has been known by a name reflective of the domain name for a significant time and without notice of the existence of the Complainant and/or the Complainant’s rights or assertions in relation to the name and in the circumstances, the registration and use of the domain name at the date of filing of the Complaint (or where relevant at the date of first complaint by the Complainant) is reasonable;

(f) that the Domain Name is generic or descriptive and the Respondent is making fair use of it (and the adjudication may consider a phonetic equivalence of a generic term);

(g) that the Respondent’s holding of the Domain Name is consistent with an express term of a written agreement entered into between the Complainant and Respondent;

(h) that the Respondent widely used the domain name, or otherwise took steps to make the Complainant aware of its use of the Domain Name in writing and the Complainant acquiesced in the use if the same for a material period of time.

7. GROUNDS OF DISPUTE

7.1. The Grounds of dispute are, inter-alia , that

a. Identical or Similar Rights are Infringed (Rule 2.1) and Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name (Rule 2.1.1);

b. The Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights.

c. The use of the Domain Name by the Respondent amounts to infringement of the Complainant’s Rights (Rule 2.1.2).

7.2. Although not alleged, the Adjudicator will consider a further ground of dispute as to whether the circumstances amount
to an abusive registration

7.3. It is common ground that the Respondent had no license or agreement with the Complainant.

7.4. The Complainant’s case is that the domain name was previously registered and that in or about June 2020, having been cancelled by the previous registrant, the Registry commenced the process of making the domain name available for registration again by the public.

7.5. The Claimant further states: “ My clients, business partners and the gaming entertainment industry are aware of us under our Level Up branding therefore the domain is of paramount importance. The domain squatter is aware of this and is attempting to extort my business with unreasonable demands.”

7.6. The Level Up Agency website opens with the use of a logo Level Up and states: “With over 15 years of experience in the gaming and entertainment industry, we have been able to utilise our network and social contacts to support a wide breadth of streamers, broadcast talent, and professional players.”

7.7. Level Up Agency asserts on its website that it has worked with a large number of clients and displays trademarks of some of these including Red Bull, Lego, Monster Energy, Lenovo, Samsung, Western Digital and others.

7.8. The Complainant was interested in acquiring the domain name for use in its business, failed in a competitive drop-catching bidding sequence, and then when the name was listed for sale at $10,000 (subsequently $5,000), made offers but failed to offer a price over $300 with the result that that open market negotiations to acquire the name failed.

7.9. The Complainant then commenced the domain dispute complaint that is being considered

8. COMPLAINANT RIGHTS

8.1. The Complainant provides few details about the setting up of the Level Up Management BV and asserts that its existence can be found on the Crossroads Bank for Enterprises website database. This shows an entity listed as Level Up Management BV.

8.2. The Complainant refers to its website at levelupagency.eu and this refers to the entity as an agency and therefore the entity LevelUp Management BV must be assumed to also utilise a trading name of LevelUp Agency. The website also features LinkedIn and Twitter names/handles/tags of @levelupgg , although an earlier site featured these names/handles/tags as @levelupeu.

8.3. Agency is a term referring to a company or entity that acts on behalf of another entity as that other entity’s agent and nothing turns on this.

8.4. Trademarks

The Complainant has not asserted that it has any registered trademarks and none are found in the Adjudicator’s EU and US
searches.

8.5. General rights

The Complainant asserts rights from its name ‘Level Up Management BV’ (trading as Level Up Agency) and strictly speaking, the marks that arise from the complainant are ‘Level Up Management’ and ‘Level Up Agency’.

8.6. The name “level up” is only part of those names. The rights of the Complainant therefore derive from the names Level Up Management and Level Up Agency. These are very weak rights in relation to the name “levelup”.

8.7. To the extent that any assistance could arise from the use of Twitter and linked-in handles/names of @levelupgg the Adjudicator has entirely discounted these handles for the reasons set out below. In any event, any rights arising from these @levelupgg andles/names are effectively non-existent as they are constructs created following the filing of the initial complaint.

8.8. As Levelup is a generic term (see below), even the Complainant’s rights in Level Up Management and Level Up Agency are weak and consequently the Complainant has a very high hurdle to show that the domain name “levelup.gg” is infringing of the Complainant’s marks.

9. REGISTRANT RESPONSE

The Respondent:

9.1. states that since 2013, the Respondent has registered hundreds of common-word and combined letter domain names for investment and development and continues to register inherently valuable short “.com” and other ccTLD domain names including .gg, because the decisions of impartial panels of legal experts have found in favour of such a business strategy of domain investing;

9.2. asserts that the term LevelUp is a generic term used in varied fields from Management to Sports to Technology. The dictionary defines the same as “make something same as other similar things” and it has synonyms as “increase”, “go up”, “double”, “soar”, “multiply”, “grow”;

9.3. asserts further that the word is used in the field of Management as much as in the Technology field or in Gaming / Sports and that the Google Search Results for Levelup Management, provides. no reference to the Complainant Company;

9.4. provides examples of some 125 companies registered in the UK utilizing the name Levelup;

9.5. further prays in aid the Respondent’s LinkedIn Profile available at:
https://www.linkedin.com/in/stevenhartleydn , wherein the Respondent is referred to as Domain Name Specialist and endorsed
for various related skills;

9.6. submits that he registered the domain name <LevelUp.gg> , without the knowledge of existence of the Complainant in
another jurisdiction;

9.7. refers to various rulings about generic domains. The Respondent assets that the Complainant’s name has not developed any secondary meaning in the term “LevelUp”, either when used as www.LevelUpAgency.eu or on their website and that the
Complainant is not in the same league as NIKE, ADIDAS, LEGO or other famous brands and the Adjudicator agrees. The respondent
also complains about the Complainant’s bare assertions not backed by any evidence, (something that the Adjudicator had already noted prior to the Respondent raising this). The Respondent says that in any case, the Complainant has no monopoly over this common term whatsoever. The term “LEVELUP” was not invented/coined by the complainant and does not exclusively belong to the complainant;

9.8. submits that it follows that the more generic the choice of terms the greater their capacity for attracting multiple associations and that this weakens the argument for infringement;

9.9. further refers to numerous uses in the gaming field where the Complainant operates of the term LevelUp https://twitter.com/LevelUpYourGame (5,707 Followers; levelupyourgame.com ; Joined October 2009).

https://twitter.com/LevelUpGameGear (5,259 Followers; levelupgear.com ; Joined August 2010)

https://twitter.com/LevelUpOutfit (4,031 Followers; levelupoutfitters.com ; Joined March 2009)

https://twitter.com/levelupgamesPH (3,168 Followers; levelupgames.ph ; Joined August 2009)

https://twitter.com/LevelUpMN (826 Followers; levelupgamesmn.com ; Joined June 2011)

https://twitter.com/IGLevelUp (734 Followers; indiegameslevelup.com ; Joined April 2015)

https://twitter.com/LevelUpGames2 (529 Followers;

http://www.levelup-games.co.uk/ ; Joined March
2012). Also on FB –

https://www.facebook.com/levelupgamescanterbury (FB – 5333 people like this).

9.10. also points out that the Complainant asserts entitlement to the Domain Name, when yet doesn’t even own a registered Trademark;

9.11. asserts that various businesses hold EU IPO Trademarks with the word “levelup” even before the Complainant came into existence. Moreover, asserts that there are 350 exact match domains (EMD) registered in different extensions [Respondent Annexure VI] and more than 6000 .COMs registered as on date containing the word “Levelup” [Respondent Annexure VI citing the Complete report available from DomainIQ.com but not provided as runs into 140 pages, just first page appended with Respondent].

9.12. Moreover, the Respondent has stated that since the introduction of basic games in 1980s on a Commodore 64 computer, many games like Super Mario have used terms like LEVELUP.

10. The Respondent also asserts that:

10.1. the Complainant has failed to the requirement to show that the effect of the Respondent’s registration of the name levelup.gg was to deprive the Complainant, as legitimate holders of brand and trade mark interests, of rights in the names in question, its recent incorporation and the lack of knowledge of the Complainant by the Respondent means that no Bad Faith can be upheld against the Respondent.

10.2. In relation to the question whether the domain name is identical or confusingly similar to a registered or unregistered trademark or service mark in which the complainant has rights, the Respondent asserts that Complainant does not hold any Trademark in the term “levelup” and that a search at Benelux Office for Intellectual Property ( boip.int ) shows a single Trademark Registration for the words “levelup” in the name of a Netherland based business Stichting Thomas More Hogeschool vide registration number 3378851).

10.3. That, in order to show rights in the unregistered name, under the terms of WIPO Overview 3.0, the complainant must show that its mark has become a distinctive identifier which consumers associate with the complainant’s goods and/or services.

Similarly Para 2.2 of Nominet Expert Overview has a similar position [ Nominet DRS D00020410 – h.uk, h.co.uk ]. Respondent asserts that the Complaint has neither included any such submission in its Complaint not accompanied with any evidence in this regard.

11. In relation to the question whether the Respondent has no rights or legitimate interests in respect of the name or that the domain was registered (or is being used) in bad faith, the Respondent asserts

11.1. legitimate Interests, stating that the Respondent is a domain name specialist, helps clients in acquiring premium domain names and also invests in premium domain names as domain investors in generic, and descriptive domain names.

The Respondent registered the disputed domain recently as part of its similar investment strategy of acquiring meaningful and generic domain names that would serve well as online addresses. The Respondent selected the disputed domain because it is a commonly used term in various fields of management, technology, gaming, etc by numerous businesses around the world and it expected the disputed domain to be of interest to a potential customer having a similar brand name, looking to establish an online presence. The Adjudicator accepts the Respondent’s assertion that it never had knowledge of the Complainant or it’s registered Company in Belgium;

11.2. in relation to a secondary meaning in terms of WIPO overview 3.0, Para 1.3 , in the case of unregistered mark, the Respondent assets that if the complainant fails to produce evidence of its reputation as it existed at the time Respondent registered the Domain Name, the inference must be that it had none ( Transportes AEROMAR v. Aeromar [WIPO D2010-0098];

11.3. there is no evidence that the Respondent approached the Complainant with a view to selling the disputed domain to them,
but only that the disputed domain was listed at DAN.com, leading to the Complainant contacting the Respondent and seeking negotiations. The Respondent asserts that a key factor is that it was the Complainant who approached the Respondent first without disclosing the name of the interested Company or any identical Trademark it owns [Annexure by the Respondent];

11.4. that there is no proof of intent to profit or exploit the specific Complainant’s marks and that the Complainant does not provide any proof indicating that Respondent’s aim in registering the disputed domain was to profit from and exploit the specific Complainant’s trademark;

11.5. that the domain is generic, the Complainant’s first approach to the Respondent to seek the purchase of the disputed domain may be a material determination that the Respondent’s subsequent offer to sell the disputed domain to Complainant is not bad faith but a legitimate opportunistic business response ( Mark Overbye v. Maurice Blank, Gekko.com B.V. [Case No. D2016-0362; <gekko.com>] ); that responding to request to purchase from complainant is not considered bad faith ( Murad, Inc. v. Stacy Brock , FA1431430865) and it is not in itself illegitimate to offer to sell a generic domain name at a high price (N2COM v. Xedoc Holding SA [WIPO D2017-1220] ). (See also Nominet DRS Decisions D00020410 <h.co.uk>, <h.co.uk> ];

11.6. that is, there is no evidence of bad faith registration or use because the Respondent registered the disputed domain since it incorporated a generic / dictionary word that was available to register early this year [Oasis Stores Limited v. J Dale (Nominet DRS 06365)];

11.7. that any amount of due diligence on the part of the Complainant would have shown that Complainant could not prove all of the policy requirements. [Nominet DRS D00021142 <siteready.co.uk> ].

12. Request for Determination of Reverse Domain Name Hijacking (RDNH) Further the Respondent has asked for a finding of Reverse Domain Name Hijacking stating that :

12.1. on the page No 4 of the Complaint, the Respondent points out that Complainant alleges that it tried to register the Domain Name on 21st JUNE 2020 , while the dispute domain name was registered by the Respondent after a month on 22nd July 2020, therefore the whole of Complaint is misconceived, misleading and based upon false grounds. The Complainant is simply taking a wild shot at getting the Domain Name and this is undoubtedly a quintessential case of Reverse Domain Name Hijacking; and

12.2. the initial Complaint provided a social media handle for twitter for @levelupeu, that no longer exists and that the Complainant has now changed the twitter name to @levelupgg and the respondent asserts that this is a case for manipulation of evidence. (The Respondent also states that the said handle just has 165 followers at the recent date viewed for inclusion of Annexure VIII] and shows lack of popularity and following);

12.3. the Complainant misused the UDRP to get the Domain Name for itself following its unsuccessful attempt to purchase the domain at a price it desired to pay and utilised the classic “Bad Faith Plan B Reverse Hijacking” tactic referred to in TOBAM v. M. Thestrup / Best Identity [WIPO D2016-1990] , namely that after failing in the marketplace to acquire the disputed domain, the UDRP is used in an attempt to improperly hijack the domain name and in TOBAM the Adjudicator commented that this “highly improper purpose” contributed to findings of Reverse Domain Name Hijacking (RDNH).

13. Negotiations

13.1. I will deal firstly with the assertion at 12.1. Whilst the domain name was cancelled by its former Registrant and entered reserved status at the Registry on 21 st June 2020, it was not immediately available for re-registration on that date. Both Parties appear to have engaged drop-catch services, the Respondent being successful with Carson drop catching service who registered this in July 2020. Subsequently following procedure imposed by the Registry, the name of the drop-catcher was amended to properly reflect the drop-catcher’s client name, that of the Registrant. (This is a requirement of
registration and nothing turns on this, the registrant at all material times being the Respondent).

13.2. The Respondent’s point at 12.1 is not made out.

13.3. It is however clearly the case that the Complainant sought to negotiate for the domain name. The email negotiations are annexed by the Respondent and show that Mats Adams on behalf of the Complainant offered $255 which was declined against the offered price. At some point this offered price was reduced to $5,000. Mats Adams then offered $300 which was also declined.

It is admitted that this was against a published value of $5000. At that point a message was sent on behalf of the Registrant asking “is there any further interest in this domain name?” and the response from Mats Adams was:

13.4. It is noted that although the complaint asserted that there was an attempt to sell the domain to the Complainant by the Respondent, the negotiations were not included by the Complainant. The response from Mats Adams is significant in relation to paragraph 12.3 assertions and the failure to disclose the highly relevant statement at 13.3 must be taken into account (including the lack of any assertions of rights in those negotiations) when considering Mats Adams’ credibility.

14. CONSIDERATIONS OF ADJUDICATOR

14.1. Whilst most adjudications are submitted by registered lawyers, this is not a requirement of the CIDD procedure. It is however the case that the majority of complainants who do not use legal representation are familiar with the broad principles of intellectual property relating to domain names. Whilst this complaint is poorly drafted and argued, it is the role of the Adjudicator to examine potential claims and assertions by Complainants, even where not expressly pleaded and this was extensively done.

14.2. The Complainant is not represented by lawyers, nor has the complainant stated whether the Complainant received legal advice on their complaint prior to commencing it. My view, as Adjudicator, is that the Complainant would have been advised not to issue proceedings had the complainant sought any form of legal advice.

14.3. The role of the CIDD is however to assist the Complainant and the Respondent where not legally represented and in that respect, the Adjudicator is not bound just by the evidence presented by the unrepresented Complainant and Respondent, but can also both ask questions of the parties by way of requests for further articularisation of the argument as well investigate publicly available information.

14.4. It has not been argued by the Claimant that these tags (@levelupgg etc) are relevant nor was the date at which these were registered provided in the complaint, but the revised complaint referred to the Complainant’s website which clearly displays the tags LinkedIn : Levelupgg and Twitter : @levelupgg and therefore they are relevant for consideration. Although not referred to in the Complaint, LevelUp Agency has created Twitter and LinkedIn ames/handles/tags of @levelupeu although during the course of the complaint, these were changed to @levelupgg , a matter which I deal with below. As the website was referred to and includes the Twitter and LinkedIn names/handles/tags, for the sake of completeness, I have therefore dealt with @levelupgg.

14.5. As Adjudicator I have been able, using public information sources, to establish the rights, to the extent that they exist, in respect of the Complainant. The marks that are able to be potentially claimed by the Claimant based on the arguments/evidence provided by the Claimant are:

Levelup Management / Level up Management
Levelup Agency / Level up Agency / Levelup/
@levelupgg / @levelupeu
Levelup

and I deal with these below.

14.6. Although when determining rights to a domain name, it is common to ignore the country code (such as . gg ) or domain extensions such as .com or .org and therefore the domain would be considered as Levelup, I will also unusually and additionally address the domain as levelup.gg because of the LinkedIn and Twitter tags.

15. Is the suffix of ‘gg’ relevant in the rights claim?

15.1. In normal convention, the top-level domain or domain stem (i.e. .co.uk, .gg or .com) would be ignored in a UDRP, and this is normally the case for the CIDD.

15.2. It is also commonly the view of IP Professionals that neither Twitter handles nor LinkedIn handles are intellectual property propriis in themselves, although a twitter or linked-in handle can infringe the intellectual property of third parties [Hence use of a twitter handle of RedBull would potentially infringe the intellectual property of the Red Bull drinks and lifestyle company].

15.3. The .gg domain name is widely used in the Island of Guernsey as an identifier for businesses in Channel Island of Guernsey, and is also used by large corporates and other entities, but in the last decade, the .gg suffix has increasingly been used by the gaming and ntertainment industry as the domain of choice. Use by the entertainment and gaming industry of .gg arises because ‘gg ’ is a common abbreviation in the gaming and entertainment industry “good games” and “global gaming” and other similar derivations. It is also used in relation to horse racing gaming/betting (being a shortened phonetic version
of common slang term for horse of “gee-gee”) and the term gg in respect of the gaming and entertainment industry is a widely
used term and effectively a generic term.

15.4. The acronym was referenced online as early as October 1999 in an article on the Internet Chess Club website about gaming etiquette. ” gg ” soon became widely adopted by gaming communities through early-era multiplayer competitive games that were released in the late 1990s, ranging from first person shooter games like Quake and Half-Life to real-time strategy games like StarCraft and Command & Conquer. The term appeared in the FAQs section of the Half-Life as early as 2000. In the following year, GG also appeared in a terminology guide for the action role-playing game Diablo II . The acronym has also appeared in several guides for the real-time strategy game Starcraft, including ones on eHow, GameWinners and Starcraft Millennium. On January 18th, 2003, ‘ gg ’ was defined for the first time on Urban Dictionary. That August, another definition
was submitted to the Online Slang Dictionary. Use of the acronym has also been discussed on the Chess.com forums, the World of Tanks game forum and the Uber Entertainment forums.

15.5. This is confirmed by google searches for ‘gaming industry use of gg’ etc and dictionary.com states “ Short for good game, the acronym gg or GG is commonly used in online gaming at the end of matches as a gesture of good sportsmanship ”. Pokerstars.com states “ ” GG ” stands for “good game.” (Nothing turns on whether the usage is “GG” or “gg”).

15.6. It is customary to say ” gg ” when you finish playing to inform the other players that you are quitting and not coming back. Usually people say ” gg ” when they quit no matter if they are winning or losing.” (Wiktionary confirms the use in the same terms as well as a use in LGBT slang of ‘genuine girl’ or ‘genetic girl’ (meaning a person born female).

15.7. Collins English dictionary provides GG as “the internet domain name for Guernsey and an abbreviation for “Girl Guides”, “Governor General” and “Good Game”.

15.8. As such the Adjudicator determines that gg is the internet domain name for Guernsey and has also become generic for “Good Game”, a slang term widely used in the gaming and entertainment industry as internet slang and typically used in competitive online multiplayer games as a gesture of good sportsmanship, either to acknowledge one’s own defeat or praise the opponent’s superior skills and was a generic term long before the Complainant used it within its LinkedIn and Twitter tags.

15.9. Accordingly:

(a) the . gg cctld domain stem is not relevant for consideration and the relevant part of the domain name is LevelUp and accordingly the potential marks under consideration claimed by the Claimant are LevelUp Management, LevelUpEu and LevelUpAgency and Levelup considerations;

(b) the use of gg at the end of a name in the gaming, entertainment etc sector (and probably therefore generally) should be ignored, alternatively treated as a generic addition and similarly ignored;

(c) the use of @levelupgg as Twitter and LinkedIn names does not create any intellectual property or quasi-intellectual property rights in the complainant and have no relevance in the dispute;

(d) for the reasons set out below, the change by the Complainant of Twitter and LinkedIn handles/names/tags is highly questionable and in the case of this dispute the @levelupgg handles/names/tags are irrelevant to the question of whether the Respondent has infringed rights.

16. Is Level Up a generic term ?

16.1. I therefore turn to the phrase “Level Up” or “Levelup”.

16.2. The term ‘level up’ is very clearly a generic term, being widely listed as a verb and extremely widely used in the entertainment and gaming industry, meaning to increase or improve something in order to make it the same as other things of its type or to increase a person’s station in life or to raise a person’s economic and social conditions or to progress to the next level in a game or to gain enough points in a computer game to enable a player or character to go up to a higher level gaining more skills or strength.

16.3. It is defined as a verb (Camb Dict) :

1. To bring something to an equal level or position compared to another thing. In this usage, a noun or pronoun can be used between “level” and “up.” A late field goal has leveled up the game between these two powerhouses! You can wedge scraps of wood underneath the decking to level it up.

2. To achieve or advance to the next rank. Said of a character within a game, especially video games. You’ll probably need to level up a couple of times before you try to take on the boss in this stage. 16.4. As such the term/phrase “Levelup”, “Level -up” or “Level up” is generic.

16.5. Co-incidentally it is noted that the current Apple Apps-store features the generic phrase “Level up your browser”:

16.6. However, a cursory glance at the crossroads register shows 40 companies registered utilising the name Level-Up, further evidencing the generic nature of the name.

16.7. Complainant also states that they registered levelupagency.eu on 30th of October 2018 and that this domain was registered only because levelup.gg at the time was registered, although unused for the duration of the registration. The Adjudicator does not accept this assertion. In this respect, the Adjudicator does not believe the evidence of Mats Adams to be credible in any way in this respect (i.e. that levelupagency.eu was registered only because levelup.gg at the time was registered).

16.8. If there were any credibility to Mats Adams’ assertion that l evelupagency.eu was only registered because levelup.gg was registered at the time, then as both levelupagency.gg and levelupgg.com were both available for registration, the Adjudicator takes the view that one or both of these would have been registered ( levelupgg.com being registered on 27th April 2019 and levelupagency.gg never having been registered). It is noted that no complaint or domain dispute proceedings have been issued by the Complainant against this levelupgg.com domain by the Complainant.

16.9. Similarly, the domain levelup.be was available for registration at the time that the Complainant, a Belgian entity, registered levelupagency.eu . (It was subsequently registered on October 3, 2019 1:00 AM by Tereiken Sport BV of Kattenbroek 33, 2650 Edegem Belgium). It is clear that if the Complainant had an intention to use a brand of “levelup”, this domain levelup.be would have been registered.

No challenge to this levelup.be domain registration has been made, further calling into question Mats Adams credibility in his statement that “ levelupagency.eu was registered only because levelup.gg at the time was registered” , despite the levelup.be domain being currently for sale at domain.for.sale@wonderhirsh.hu.

16.10. In passing, it is noted by the Adjudicator that the domain name levelup.eu was registered on 10 th November 2012 on behalf of Evolution Media e.U. and is currently listed for sale at Euro 9,999. This evidences that the value of the generic domain in the .eu area and evidences that the sum stated in respect of levelup.gg is not unreasonable for a generic domain.

16.11. The Complainant via Mats Adams has stated, in response to a question raised by the Adjudicator about the change of twitter and linked-in handles after the complaint was filed that “ The Twitter handle was changed to @levelupgg around October 9th as to further consistent branding across all platforms”. For the reasons set out herein I find that the complainant is not entitled to claim a mark for the purposes of this proceeding based on the Twitter name and linked in names of @levelupgg . I also find that although the LinkedIn and Twitter levelupgg brands were not expressly argued, their inclusion in the webpage cited at the final complaint was deliberately designed to influence the complaint and that this statement of Mats Adams is also “not entirely credible”. If it was the case that the company was involved in a rebranding as suggested, why was this powerful statement not made within the later version of the complaint made some 2-3 weeks after the rebranding.

16.12. The Respondent suggests that this is part of a “manipulation of evidence” and the timing, and failure to mention the rebranding in the complaint, is certainly unfortunate.

16.13. The Complainant via Mats Adams has stated in respect of the twitter handle (and presumably also the Linked In handle) that “ It was inactive until then but I did not have the connections at the time to get the handle transferred”. The Adjudicator notes that the change only occurred immediately following the filing of the complaint and notes the fortuitous timing for the purposes of the complaint. The Adjudicator acknowledges that the Complainant is entitled to adjust branding at any point but also notes that the evidence is that the handles were not “inactive”, but appear to be unregistered prior to
the complaint and accordingly does not accept the explanation of lack of time and considers this another example of lack of credibility.

16.14. The Adjudicator also notes a LevelUp Agency in Köln, (Cologne), Germany with twitter handle @level-up.gg further indicating the generic and widespread nature of both LevelUp, LevelUp Agency and levelupgg. This is also an eSports Marketing
Agency.

17. Respondents pattern of registration

17.1. The Claimant has asserted that the respondent has been engaged in a pattern of abusive registrations. No evidence of this has been provided except a web-address.

17.2. Accordingly, I have reviewed the registrations in the .gg arena, they are:

1 sensei.gg
2 clothing.gg
3 elo.gg
4 compete.gg
5 decimate.gg
6 d rive.gg
7 fashion.gg
8 flutter.gg
9 goat.gg
10 lion.gg
11 lvl.gg (i.e. ‘level’)
12 picks.gg
13 react.gg
14 shortcut.gg
15 wager.gg

17.3. All 15 names are in my opinion entirely generic and I find that the Respondent, far from operating an abusive pattern of registrations, has clearly been engaged in registering generic domains. (A registration for lvl.gg being clearly an abbreviation for level or level-up).

17.4. Again, unlike a legally drafted brief which would have detailed each abusive registration and its reasons, no assertions have been made as to any registration – and the Complainant has only made a vague statement that the respondent has engaged in an abusive pattern of registrations, which the respondent would be unwise to repeat outside the protection of legal proceedings.

17.5. In the website referred to by the Claimant, the Respondent lists for sale those names (annexed below). The vast majority of those names are generic or are easily pronounceable names potentially useful to companies looking for new brand names, and a few remaining ones are otherwise common names of individuals or generic words preceded by two or 3 letters. Some are also esports terms. This matches the assertions of the Respondent.

17.6. There is a slight possibility that a handful of these names might be open to challenge, but there is no evidence presented to me by the Claimant that any of the registered nam es have been challenged, nor that the respondent has had any adverse judgments made against then in relation to UDRP proceedings and the Respondent’s statement about these being a mix of generic terms preceded by a few letters, and accordingly quasi-generic and part of a bona-fide domain sale business appears entirely credible.

17.7. I have asked the Claimant for the date of change and the response received was:

“The Twitter handle was changed to @levelupgg around October 9th as to further consistent branding across all platforms. It was inactive until then but I did not have the connections at the time to get the handle transferred.

I recently acquired a contact at Twitter’s global gaming department who freed up the old handle because they are aware of our business and have helped us service many of our clients we represent and who have had similar branding related requests on their platform. As our clients are sizable influencers in the gaming industry Twitter’s gaming department has recognized the importance of being able to help those influencers.”

17.8. I can see no reasons why, during the currency of a complaint (a maximum usually of 8 weeks) why a twitter name would be changed except to try to manipulate evidence on the site referred to (levelupagency.eu). Given that there is only a handful of followers on twitter (approximately 165), I cannot see why a second Twitter name is not created and the first referred to the second or the 165 followers advised to move to the new Twitter name. The change of Twitter tag to @levelupgg was, in my view, on the balance of probabilities designed to try to confuse the adjudicator into believing that there were greater rights in the Complainant’s hands in relation to levelup.gg and in my view, the silence about this change spoke volumes about bad faith.

18. Although there is no such thing in domain ADR proceedings as binding precedent, each case being decided on its own merits, there is a growing body of consistent ruling in relation to domains which I cite for completeness:

18.1. The registration of large numbers of domain names for the purpose of offering them for sale to third parties is not an inherently objectionable activity in itself

a) ( Digel Aktiengesellschaft v. Vinay Shan [WIPO D2018-1328]), “panels have consistently found that the registration of large numbers of domain names for the purpose of offering them for sale to third parties is not an inherently objectionable activity under the Policy”.

b) Aurelon v. Abdul Basit [WIPO D2017-1679], “ speculating in domain names is a lawful business model regardless whether the
domain names correspond to marks as long as the proof establishes either:

1) respondents have rights or legitimate interests in the domain name; or
2) complainants are unable to prove bad faith registration and use.”
c) SiteReady.co.uk (Nominet DRS-D00021142) ””maintaining a large portfolio of domain names and trading in domain names for
profit is expressly provided for under paragraph 8.4 of the Policy.”

18.2. The registration of generic domains is permitted under the policies of domain registration:

18.2.1. In many domain cases since One in a Million , it has been held that as long as the domain has been registered because of their attraction as dictionary words, and not because of their value as trademarks, this is permitted business model, under the Policy. [Gen. Mach. Prods. v. Prime Domains, FA92531] and [ Landmark Group v. Degimedia.com FA285459 ], [ Deep Focus Inc. v. Domain Admin, WIPO D2018-0518].

18.2.2. Where domain is descriptive, the first person to register it in good faith is entitled to the domain, and that this is usually considered a “legitimate interest Target Brands v. Eastwind Group and also see: CRS Technology v. CondeNet (FA93547) and Spherion v. Neal Solomon (FA112454).

18.2.3. In 2K.GG – Take-Two Interactive Software, Inc V Jonathan Stevens [CIDRS005 ], it was held that ” The adjudicator does not consider the use of the ccTLD stem .gg to be indicative of gaming… however for the reasons set out herein, the adjudicator accepts that at the relevant date, .gg domains had become widely used in the sports, entertainment and gaming fields ”. [Adjudicator’s note: “not indicative of gaming” meant that it was not solely indicative of gaming as had been alleged in that case – the domain is also indicative of Guernsey, horse-racing, sports, entertainment and gaming fields and other matters, such as girl guides – as set out in paragraph 15.3 of this adjudication.]

18.2.4. Oasis Stores Limited v. J Dale (Nominet DRS 06365) ref oasis.co.uk (Appeal Panel) , where it was stated:-

“This is not a case where the word is a made up word which, if contained within a domain name, inevitably raises at least an
inference that it will be associated with the party most commonly associated with the word. In such cases an Expert can infer
that the purpose of the purchase was to take advantage of that connection. It would for example be relatively easy to infer
(at least absent any credible explanation) that a third party purchasing, say, kodak.co.uk intended to take advantage of the
name and reputation enjoyed by the well-known Kodak company. The same is not true where the name comprises a common English
word where any number of uses may be perfectly unobjectionable …”

18.2.5. KP Permanent Make Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 122 (2004) where the U.S. Supreme Court held that “ If any confusion results, that is a risk the plaintiff accepted when it decided to identify its product with a mark that uses a well-known descriptive phrase .”

18.2.6. Wiseinsurance.co.uk (Nominet DRS 4889) , where the appeal panel stated:

“…the limitations of the goodwill associated with the Complainant’s use of its name, makes the likelihood of such confusion very low indeed, and given that the Complainant has adopted a descriptive name for its business it cannot, without more extensive rights, complain about the use of the same descriptive name by a third party.”

18.2.7. Rollerblade, Inc. v. CBNO and Ray Redican, WIPO D2000-0427, where it was held that “genericness, if established, will defeat the claim of trademark rights, even in mark which is the subject of an incontestable registration”.

18.2.8. Allocation Network v. Steve Gregory [WIPO D2000-0016 ] finding that “ registration of domain names for the purpose of their sale may in certain circumstances give rise to rights or legitimate interests in respect of those domain names as a bona fide offering of goods or services” 18.2.9. Deep Focus v. Abstract Holdings International [WIPO D2018-0518 ] “The legitimate registration of a domain name comprising commonplace or dictionary elements for sale …..and the offering for sale of that domain name constituting can give rise to rights or legitimate interests in the domain name as a bona fide offering of goods or services …”

18.2.10. Nominet DRS D00019567 <forte.co.uk> and <forte.uk> , “ the Panel finds persuasive the Respondent’s argument (with supporting evidence) that its business model in general rests rather on the sale of attractive domain names than on click-through revenue derived from parking pages ”.

18.2.11. Nominet DRS D00006832 <computeruser.co.uk>, “ The public has no reason to associate the generic/descriptive term
“computer user” with the Complainant ” [Similar decision DRS 00752 (datingagency.co.uk)].

18.2.12. Zero Int’l Holding v.Beyonet Servs . WIPO D2000-0161 “Common words and descriptive terms are legitimately subject to
registration as Domain Name on ‘first-come, first-served’ basis ” .

18.2.13. Ancien Restaurant Chartier v. Tucows.com WIPO D2008-0272 , In order to prove abusive registration, intent must be shown that Respondent registered the Domain Name not because of its common generic or descriptive meaning referring to Level
Up, but rather specifically because it corresponded to protected or unprotected trademark.

18.2.14. Lumena s-ka v. Express Ventures LTD, FA94375 “ an adjudicator would only find bad faith where the domain involves
generic terms in the most exceptional of cases and where there was clear evidence also that the Respondent registered the Domain Name with the specific intent of capitalizing on specific Complainant’s trademark interest”.

18.2.15. Real Estate Edge V. Rodney Campbell WIPO D2017-1366 “ the weaker the mark the stronger must be the evidence of bad
faith”.

19. ADJUDICATOR’S FINDINGS & REMEDY

19.1. The circumstances of this domain name purchase was that it was made available for public purchase following deregistration. Both Parties used drop-catchers. Only one drop-catcher can succeed. The domain name had a significant generic nature and was a domain name consisting of comprising commonplace or dictionary elements and capable of being used without infringing any established registered trademark of an existing trademark owner in the normal manner of use. Once legitimately registered, the Respondent was able to offer it for sale in accordance with normal domain name speculative pricing.

19.2. Given the wide number of entities utilising the name Level-Up and its generic nature, the public has no reason to associate the generic/descriptive term ‘Level Up’ with the Complainant.

19.3. The Adjudicator finds that the Complainant has not made out a prima facie case that Respondent lacks right or legitimate interest and the complainant’s attempt to acquire the disputed domain without its assertion of any claimed rights is evidence that the Claimant was aware of the Respondent’s legitimate interest in the disputed domain.

19.4. Whilst the Respondent is clearly drop-catching names of a generic nature, nothing in that list evidences an abusive pattern of registration within the meaning of the evolving domain name law and there is significant evidence that the Respondent is seeking to register generic or semi-generic names.

19.5. The adjudicator finds that the Respondent registered the name in good faith and as a domain name trader and that the domain name was materially generic.

19.6. The adjudicator finds that the Respondent did not infringe the rights of the Complainant.

19.7. The adjudicator finds that the Respondent did not register the domain name in Bad Faith or otherwise breach the registration rules in a manner giving rise to any reason to transfer the domain name to the Complainant.

19.8. The adjudicator finds that the domain name levelup.gg was a generic domain, being a representation of materially generic term LevelUp.

19.9. The adjudicator finds that the term and therefore the domain name “ levelup ” is generic and accordingly that the domain “levelup.gg ” is generic and that it does not infringe the rights of the Respondent.

19.10. Reverse Domain Name Hijacking Decision

19.10.1. I am also therefore required to look at the question of whether the Complaint was an attempt to carry out reverse
domain-name hi-jacking.

19.10.2. I take into account that the Complainant was not legally represented. In the circumstances of this case. However, I would consider that the Respondent, properly advised, would have not taken the case and that the Respondent was being hopelessly optimistic in seeking the domain name, and either did not have much knowledge about domain name processes or has been advised or knew that the Complaint, properly argued was hopeless. In this respect, I find that the Complaint was ill- advised, and poorly argued and appears to show a lack of understanding of the UDRP process or a wilful disregard of previous decisions and the grounds for these. I have however to decide whether the filing amounts to a reverse domain-name hi-jacking.

19.10.3. I have commented above on the lack of credibility of Mats Adams in the complaint assertions and subsequent response
to questions.

19.10.4. The response from Mats Adams in paragraph 13 is however significant in relation to the paragraph 12.3 assertions about Reverse Domain Name Hijacking.

19.10.5. There was assertion of an attempt to sell the domain to the Complainant at a significant price by Mats Adams in the Complaint, but there was a failure to provide the communications about the sale and these provide a wholly different picture of a Complainant who seeks to purchase a domain name for a maximum of $300 and when negotiations conclude as the Complainant will not pay more, the Complainant states “ it is not that important for me” … “If you’re willing to come to an acceptable agreement then I will take it off your hands – If not, so be it .” Yet, the complaint alluded to price negotiations but then failed to disclose this critical response. This failure to be entirely candid was one factor that tipped the balance into the conclusion I came to on this issue.

19.10.6. There is no assertion of the rights of LevelUpAgency or Level Up Management at this point in the communications as would be expected on a bona-fide challenge, nor any assertion of cybersquatting. This failure is a further matter that tipped the balance into the conclusion I came to on this issue.

19.10.7. All things being equal, I could not have been criticised for taking the view that this was more a case of an ill-advised claim, a failure to make out any material case against the Respondent and one that could kindly be considered innocently opportunistic and due to the lack of understanding of intellectual property law and a naïve complaint.

19.10.8. When I take into account the above matters , the failure to properly disclose the nature of the communications and the statements made at their conclusion of “ it is not that important for me” …”If you’re willing to come to an acceptable agreement then I will take it off your hands – If not, so be it , the change of the Twitter and LinkedIn handles/names/tags immediately following the initiation of the complaint and the failure to identify this* and the failure to disclose this as well as the complete failure to address the very recent re-branding and the general lack of credibility of the statements of
Mats Adams concerning the reasons for domain registrations and generally the selectivity of the facts asserted points to a lack of candour coupled with a conclusion that this was likely to be a TOBAM-style improper purpose then I take the view that these factors, have tipped the balance of the determination in favour of my finding on the matter of Reverse Domain Name Hijacking.

* Unusually there are two copies of the Complainant’s complaint. The first copy provided on or about 1 st October provides a hypertext link to the twitter page @levelupeu (and using this takes the reader to a page which states that this account no longer exists).

The poor quality of the Complaint led to the Registry providing a template for the complaint and resulted in a second copy of the Complaint, not much better drafted, which provided only a web address and webpage. That webpage however had the twitter links added using “@levelupgg” and linked-in handle of levelupgg.

19.10.9. I therefore conclude on the balance of probability that this complaint was a complaint filed in bad faith and an attempt to carry out reverse domain name hijacking.

20. The Complainant has requested anonymity for the name of their witness. This would be most unusual in any event. I have concluded in light of the above that this is not appropriate.

RECOMMENDED REMEDY:

21. The registration for the Domain Name complained about should not be subject to change nor should the ownership transferred as a result of this case.

22. The registry should note that the Complainant filed a complaint in bad faith and as an attempt to carry out reverse domain name hijacking.

Nick Lockett
Nick Lockett, Solicitor (213086) and ex-Barrister (30499 Inner temple)
Adjudicator C.I.D.D.
Dated 30 th November 2020.