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Recent Case Notes & Commentary

Bad Faith Inferred from Accumulated Pieces of Evidence

Lowe Lintas Private Limited v. Fei Zhu, Low Lintas QC WIPO Case No. D2015-1441, October 9, 2015

In some cases where the Complainant has set about proving bad faith, it is comparatively easy to establish that element, based on the conduct of the registrant of the domain name. In other cases, it has proved more difficult. The present case was a borderline one because of the lack of direct evidence. Bad faith can still be proved in borderline cases, but it may require a painstaking analysis of the facts and the history of the case as well as setting out all the evidence to be relied on, so that the Panel can conclude from these accumulated facts that there has been bad faith registration and use of the domain name. It may be difficult, but it can be done.

The Lowe Lintas case is therefore a good example of the use of evidence to prove bad faith registration. It succeeded through an analysis of the overall behavior of the Respondent and is a good example of how, with proper evidence and use of that evidence, a UDRP claim can succeed.

The Disputed Domain Name was <> and the Respondent had linked it to various “get rich quick” schemes and common products. After proving all 3 elements in the ICANN policy, the Complainant prevailed and the domain name was transferred to the Complainant. But we are mainly concerned here with how the Complainant proved bad faith. How did it do it?

The Complainant Lintas is a prominent Indian based advertising agency that had used different trading names, all containing the word ‘Lintas’. It became part of Mullen Lower Group, a global network of advertising agencies, in 1999 and, since then, it began trading as Lowe Lintas. The name Lowe Lintas was never registered as its trademark. It has used its own domain name, an Indian domain name, since 2009.

The Respondent The Respondent, Low Lintas QC, is a Chinese company. It registered the disputed domain name <> on April 13, 2003. It had also registered 902 other domain names. Panels had arbitrated against the Respondent five times, ordering the transfer of the domain names in question to the respective Complainants.

The Issues As the Complainant did not have a registered trademark for LOWE LINTAS, it alleged that it had a common law trademark in that name and that the domain name was identical to it. It also alleged that the Respondent had no rights or legitimate interests in the domain name and that it had registered and used it in bad faith.

The Decision Identical and/or Confusingly Similar The Complainant was able to show that it had a common law trademark in LOWE LINTAS because it had actively used that name in its business for several years. It was clear that the domain name was identical to the common law trademark and that accordingly the Complainant had made out the first element, that the domain name was identical or confusingly similar to the trademark.

Rights or Legitimate Interests The Complainant was also able to show that the Respondent had no rights or legitimate interests in the domain name, as it had no authority to use the Complaint’s trademark in its disputed domain name and, by not filing a Response or defending the case, it had not shown that it had such rights or interests by any other means. The Complainant had therefore won on the first two elements

Registration and Use in Bad Faith. The Complainant then had to show that the Respondent had registered and used the domain name in bad faith. Use in bad faith could be inferred because the Respondent had been using the disputed domain name for “click-through” services for commercial gain and it also had a track-record of adverse UDRP decisions against it. But what about bad faith registration?

As the domain name <> was registered twelve years previoiusly, the panel questioned why the Complainant, who at the time had been trading under the name Lowe Lintas for four years, had not challenged the registration earlier. That fact, and also the fact that the Complainant did not provide any reasons for its lack of challenge, created preliminary difficulties for the Complainant to satisfy paragraph 4(a)(iii) of the Policy.

The Complainant therefore had to prove that when the Respondent registered the domain name it knew that the Complainant traded under the common law trademark LOWE LINTAS. But it could not be inferred that a party in China, like the Respondent, could or should have known of the Complainant’s common law trademark in India.

Despite the lack of direct evidence, up to that point, to show registration in bad faith, the panel aggregated five other factors to enable it to conclude that, having regard to all of those factors, the domain name had been registered in bad faith.

These accumulated factors were:

  1. The five previous successful proceedings against the Respondent for the registration of domain names identical or confusingly similar to known trademarks.

  2. The current offer to sell the domain name indicated that when the Respondent registered the domain name it had intended to sell it for a profit.

  3. The website was not for any particular use other than the display of hyperlinks to third-party unrelated websites.

  4. The Respondent received ‘click-through’ fees from the operation of the website.

  5. The distinctiveness of the name ‘Lowe Lintas’. It was highly unlikely that anyone would use this name for anything other than disruption of the actual Lowe Lintas business. Moreover, the Respondent had given its address as ‘Low Lintas QC’, which showed ‘deliberate targeting’ of the Complainant .

  6. Accordingly, paragraph 4(a)(iii) of the Policy was satisfied and both bad faith registration and use had been shown.

In other words, it had been shown by those accumulated pieces of evidence that the domain name had indeed both been registered and used in bad faith.

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