Its our.in | India's Pride
Justice will not be served until those who are unaffected are as outraged as those who are. The given dispute states that justice is not only blind, but deaf too. Which means that the current system of justice in INDRP may provide everyone an equal chance just for the sake of formality, but for some reason it’s ears are usually deaf to respondent’s who seek righteousness. Lets understand why is this happening?
Complainant – Metropolitan trading company
Respondent – Chandan Chandan
Disputed Domain – Zodiac.in
Decision – Complainant emerged as the decree holder
Case Summary and Analysis
In the given dispute the complainant is a registered partnership firm in Mumbai and it adopted the mark of “ZODIAC” in 1961. They have sold clothing under this mark. In the proceedings they stated that they own ZodiacOnline.com and further added that the domain is confusingly similar to the mark owned by the complainant which is (ZODIAC). They further alleged that the respondent doesn’t have any legitimate interest or rights over the domain name and the respondent wishes to en cash over the goodwill and reputation of the complainant. At last the complainant alleged that the respondent registered the domain in bad faith because the web page was providing links to third party websites. The respondent replied by stating that “Zodiac” is a generic term and the trademark registration has been filed on “proposed to use” basis. Further the respondent stated that the homepage links were available due to a human error caused during changing nameservers. Now lets tear the above allegations limb by limb and try to understand who should win, Let’s put ourselves in the boots of the arbitrator and let’s judge!
In order to win the domain from the respondent in an INDRP dispute, The complainant must prove all three following grounds :-
1)Registrant’s domain name is identical or confusingly similar to a name, trademark or service mark in which complainant has rights.
2)The registrant has no rights or legitimate interests in respect of domain name.
3)Registrant’s domain has been registered or being used in bad faith.
Now lets match these grounds in above circumstances or not. Lets begin with the first ground, the first ground basically means “whether the disputed domain violate any trademark or not?”. To understand if the domain violate the trademark, first we must study the nature of the trademark. The complainant claims that the violated trademark is “ZODIAC”. The given term is a generic term, which means it cannot be protected by just a mere trademark, The complainant has provided no proof at all which shows that the term “ZODIAC” has acquired a secondary meaning which only indicates towards the complainant’s business. There are currently hundred’s of businesses with the name “Zodiac” in it. How can the complainant claim the violation of the trademark if there is no proof that the trademark term (which is being used my multiple businesses around the world) solely indicates towards the complainant’s business. If such thing is possible then I can simply bookmark generic terms and sue thousands of domains associated with the mark and steal businesses around the world. Secondly the complainant has not provided any proof which states that the disputed domain has damaged the complainant in terms of reputation and money.
Lets now move on to the second ground, the complainant states that the respondent has no rights or legitimate interests in respect of the domain name. Though at the same time complainant states that in previous interaction with the respondent, it was clearly stated by the respondent that he wishes to build an astrology website and development is process, although it has been stated that the home page links was caused due to a genuine human error, even though it has been held in multiple panels that “pay to click adds” can be treated as legitimate use of the domain. Hence the complainant has failed to provide enough proof to prove the second ground as well, which further nullify the third ground because the respondent cannot register the domain in bad faith if he has a legitimate interest or right over the domain name. Now if we look and judge the dispute from the boots of the arbitrator, we can clearly see that the complainant has failed to prove the grounds required to win the dispute but why did the complainant still win? why did respondent loose even though everything was in his favor? Perhaps justice system in INDRP is not deaf after all, Maybe it is audible to some specific noise patterns, like sound of loose change in pockets perhaps?
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