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1. Procedural History
On July 23, 2003, the Hong Kong International Arbitration Centre [HKIAC]
received the hardcopies of the Complaint form from the Complainant.
On July 28, 2003, the HKIAC sent a Notification to the Registrar. On
August 14, 2003, the HKIAC received the Complaint form in electronic
format filed by the Complainant, as well as payment from the Complainant
in the correct amount for a single-member panel. On August 15, 2003,
the HKIAC forwarded the Complaint to the Respondent by double registered
post. On August 19, 2003, the HKIAC served a Notification of the Commencement
of the Proceedings on Respondent. On September 11, 2003, the HKIAC requested
that the parties rank the three candidates for Panelist in order of
preference. On September 13, 2003, the HKIAC received from the Complainant
the ranking of the three candidates in order of preference. On September
15, 2003, the HKIAC appointed Mr. Leon Trakman, as the highest mutually
ranked candidate, to serve as Panelist and notified the parties of the
Panel's appointment on September 17, 2003.
2. Factual Background
For the Complainant
The Complainant, Infolink Limited was incorporated in 1999. Its business
activity includes the development of software, internet telephony, interactive
voice response system, intranet, e-commerce applications, online directories
service and hosting. In 2000, it began research and development into
online directories and hosting services. The word "LTD" was
the service mark of its services, which means "Local Trade Directors."
Its business partners in China, Taiwan, Australia, Singapore and Malaysia
had acquired the "ltd" domain name locally, except for the
Complainant in Hong Kong.
The Respondent, the L.T.D. Trading Company registered its domain name
www.ltd.com.hk The Complainant alleges that it became aware of the L.T.D.
Trading Company [L.T.D. Trading] and Respondent domain name; and that
it tried to contact the owner of L.T.D. Trading via email, but that
the email could not be delivered.
The Complainant thereafter contacted the Hong Kong Domain Name Registration
Company Limited 'WHOIS'. It ascertained from that Registration Company
that Homepage HongKong was the Technical Contact of the domain name
www.ltd.com.hk. The Complainant alleges that it called and establishes
that it wrote to Homepage Hong Kong on 24 August 2001 to request that
the latter check its database in order to contact L.T.D. Trading. Homepage
HongKong responded that it could not find any applicable information
in their database. However, it did provide the address of L.T.D. Trading,
as well as the addresses of two individuals, the Administrative Contact
and Technical Contact, at Homepage HongKong.
On the same day, the Complainant wrote to the Administrative and Technical
contacts of Homepage HongKong requesting that they verify ownership
of the domain name. The addressees replied that the information requested
was public. On 13 September 2001, the Complainant alleges that it again
called Homepage HongKong to enquire about the domain name. An individual
responded in writing to the request, offering to sell the domain name
provided that the Complainant made a good offer. The letter also asserted
that the domain name was owned by one of Homepage HongKong's directors.
Towards the end of September 2001, the Complainant alleges that its
Director flew to Hong Kong to find L.T.D. Trading Company and its Administrative
and Technical Contacts. The Complainant contends that neither the Company,
nor the Administrative Contacts could be found.
The Complainant alleges further, that it ascertained the name of the
Administrative and Technical Contacts of HomePage HongKong from the
records of the Inland Revenue Department.
The Complainant also establishes that Homepage HongKong was registered
in the name of an individual at the same residential address as L.T.D.
Trading Company. However, the Complainant alleges there was no trace
of L.T.D. Trading Company in the records of the Inland Revenue Department.
The Complainant alleges that it waited until 31 May 2002, anticipating
that the domain name owner would re-register the domain name and that
the Hong Kong Domain Name Registration Company Limited would release
the domain if the owner did not re-register it before that date. However,
at the time of filing the Complainant, the domain name was not re-registered
and had not been in use for more than a year.
The Complainant alleges that it has spent considerable time and effort
in planning and developing the software applications of its services,
with a view to creating awareness of the same.
It alleges further that it has withheld launching its plan in order
to secure the hk domain name, so as to service Hong Kong, just as China
and Taiwan are already in the service list.
The Complainant apologizes for not disclosing much about its online
directories services in its Complaint but that this is due to the need
for confidentiality.
The Complainant indicates, as well, that it has refrained from providing
information about the Complaint because of its concern that the Respondent
would use such information to the Complainant's disadvantage. The Complainant
elaborates that, if the original concepts of its services are made known
to the Respondent, the latter might use the domain name for its own
use to provide services similar to those of the Complainant and that
this would disadvantage the Complainant.
For the Respondent
No facts are available from the Respondent..
3. Parties' Contentions
The Complainant
The Complainant contends that the L.T.D. Trading Company is non-existent,
that the Administrative Contact or person-in-charge of the domain name
could not be found, that the owner of the domain name is a domain squatter,
and that the domain name www.ltd.com.hk is being used in bad faith.
The Complainant alleges, in support of its contention that the L.T.D.
Trading Company is non-existent, that the LTD Trading Company could
not be traced through the records of the Inland Revenue Department and
that even the representative of the Hong Kong Domain Name Registration
Company Limited could not trace it.
The Complainant requests that the disputed domain name be transferred
to it.
The Respondent
The Respondent did not respond to the Complaint or participate in the
proceedings.
4. Findings
Identical or Confusing Similarity
The domain name in issue is confusingly similar to the trade mark of
the Complainant. In particular, the word "LTD" is the service
mark for the Complainant's services. The word has a specific meaning
which relates directly to the services provided by the Complainant,
namely "Local Trade Directories." The services include research
and development into online directors and hosting services.
It is apparent that an Internet user might be confused as between the
Respondent's domain name, namely, www.ltd.com.hk, as well as by the
Respondent's trading name "L.T.D. Trading Company." The use
of the word "LTD" in both that the Respondent's trading and
domain name, the fact that such registration is in Hong Kong, contribute
to that confusion.
It is reasonable to conclude, therefore, that an individual who identifies
the domain name www.ltd.com.hk would reasonably confuse that name with
the service mark of the Respondent.
Rights or Legitimate Interests of the Respondent
The Respondent has no rights or legitimate interests in the domain
name in dispute.
While it is not self-evident that the Respondent is non-existent, as
the Complainant contends, it is unlikely that it engages in business
activity, or that it engages in an activity that is related to its domain
name. It is certainly conceivable that the domain name consists of the
initials of the Registrant, or some intended activity. However, in the
absence of any evidence of such activity, and the apparent absence of
business activity in the public domain, it is reasonable to conclude
that the Respondent has secured a domain name for some unknown business
activity which has not been pursued, or that no such activity was ever
intended other than to sell the domain name for significant profit.
It is negative reasoning to argue only that, by in not responding to
the Complainant about its business activity, the Respondent lacks a
legitimate interest. Indeed, the Respondent could decline to disclose
the nature of its business, not unlike the Complainant, for reasons
of confidentiality and for fear of sustaining unfair disadvantage as
a result of such a disclosure.
However, the absence of evidence in public records about the Respondent's
business and its readiness to sell its domain name to the Complainant
for a "good offer" provides further testimony, viewed ex post
facto, that Respondent has neither a right to nor a legitimate interest
in that domain.
Bad Faith
Complainant has not established that Respondent has actually used the
disputed domain name on an ongoing basis for the purpose of promoting
an illegitimate activity, such as to trade in goods or services. However,
Respondent's registration of a confusingly similar domain name to the
Complainant's service mark, the apparent absence of any business activity
being conducted by the Respondent, and the Respondent's response –
apparently through a third party intermediary -- expressing a willingness
to offer to sell the domain name in response to a "good offer"
cumulatively support the contention that the Respondent registered and
is using the domain name in bad faith. The Respondent's conduct in such
circumstances constitutes "cybersquatting", specifically the
registration and use of a domain name as a means of "squatting"
in cyberspace in order to sell that name for a substantial profit.
There is strong evidence, in contrast, that the Complainant is in good
faith in trying to protect its service mark from cybersquatting by a
bad faith registrant and/or bad faith user, that the Complainant has
devoted time, energy and money to developing its products and services,
and that Respondent is now seeking to exploit the Complainant's good
faith in order to secure a significant profit beyond the purchase price
of the domain.
This is not a self-evident case of bad faith cybersquatting by the
Respondent. In particular, the Complainant does not have a famous domain
name that was obviously the subject of exploitation by the Respondent
for profit from the outset. The Complainant's business activity is clearly
fledgling and far from established. Indeed, the Complainant has not
yet launched its business. It is also not apparent that the Respondent
registered its domain name specifically to cybersquat when the Respondent
conceivably was unaware at the time of registering the domain name of
the Complainant's trade service.
However, it is apparent that the Complainant has conducted its business
in good faith in relation to the Respondent, while the latter has not
acted similarly. Of note, the Complainant sent the Complaint Form to
the Respondent's address as shown in the whois database, thereby complying
with its [Complainant's] responsibility. The Complainant also made a
significant effort to find the Respondent, but without success. The
HKIAC, too, sent email and hardcopy notifications of the Complaint Form
to the Respondent by double registered post. The Respondent did not
respond to these communications. It is conceivable that the Respondent
did not receive all of these communications, for example, in the event
that Complainant's notification to Respondent contained an address error.
However, the Complainant did make reasonable efforts to notify the Respondent
in accordance with the address contained in the whois database. The
failure of Respondent to reply infers either that the Respondent chose
not to do so, or failed to provide a correct or forwarding address by
which it could receive mail. While such inaction by the Respondent does
not constitute per se bad faith, it does infer bad faith by the Respondent
when viewed cumulatively in light of other evidence in this case.
Finally, the Complainant expressed legitimate concern that, should
it disclose confidential information, the Respondent might purport to
exclude or replicate Complainant's services. The Complainant exercised
a reasonable precaution here considering the Respondent's evident attempt
to extort a significant profit by trying to sell a low-cost domain name
to the Complainant.
5. Decision
The Respondent's domain name www.ltd.com.hk is confusingly similar
to the Complainant's service mark. The Respondent does not have a right
to or legitimate interest in that domain name. The Respondent has registered
and used it in bad faith. Accordingly, the Panel orders that the domain
name be transferred to the Complainant.
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