Hottie.com UDRP: complainant is guilty of RDNH; Hottie.in INDRP: domain ordered to be transferred.

Discussion in 'Legal Issues and Dispute' started by kriss05, May 3, 2017.

  1. kriss05

    kriss05 Russian Federation Active Member

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    Hottie.com UDRP: complainant is guilty of RDNH - link

    Hottie.in INDRP: domain ordered to be transferred to the same complainant - link

    Some rulings from Hottie.in INDRP case made by arbitrator Ranjan Narula:

    "The respondent contended that the Complainant has registered trademark in Australia and New Zealand which is unrelated to doing business in India. However, according to several INDRP and WIPO decisions, if the Complainant owns a trademark, then it generally satisfies the threshold requirement of having trademark rights. The location of the trademark, its date of registration (or first use) , and the goods and/or services for which it is registered, are all irrelevant for the purpose of finding rights in a trademark under the first element."

    So, according to the above arbitartor, time, location, goods/services trademarked are all irrelevant for the sake of INDRP process. So, the owner of any sh*tty TM registered anywhere in the world can file INDRP dispute to steal the valuable domain? What a BS. Further, he should at least have read Hottie.com UDRP case where the complainant was found guilty of RDNH due to, among others, the fact that hottie.com was registered before the complainant registered its Hottie mark.

    "The difficulty in this case lies in the fact that the domain name www.hottie.in, although descriptive or generic in relation to certain services or goods, maybe a valid trademark for others. The difficulty is expounded by the fact that, while hottie may be considered a common world in English speaking countries, this may not be the case in non English speaking countries."

    The arbitrator accepts that "hottie" is generic English word. Australia, New Zealand, USA, India, i.e. countries mentioned in the Hottie.in INDRP, are all English speaking counties. Why the heck he mentions non English speaking countries and thinks that non English countries are by any means related to this INDRP?

    "...the domain name www.hottie.in is merely parked by the Respondent to generate advertising revenue by "click-through" or "pay per click" business model.

    This business model though legitimate may be done with a legitimate domain name. If, on other hand, another's trademark is used without authorization for the purpose of attracting visitors, then some visitors may be confused into thinking, at least initially, that the website they have reached is in some way endorsed by the Complainant, when it is not. I find that in this case that the Respondent has attracted viewers for commercial gain by confusion, constituting registration and use in bad faith."


    What a BS. According to Ranjan Narula, only domains for which there are no registered trademarks anywhere in the world can be monetized via PPC? He should have read tons of UDRP decisions where it was ruled that owning TM merely doesn't give the Complainant rights to the disputed domain name and that PPC monetization is a bona-fide use in case of "trademarked" domains, if domains are generic in nature and PPC ads don't relate to the Complainant and/or its business. In his turn, the arbitrator had no finding that PPC ads served on Hottie.in were related to the Complainant and/or its business. Even the Complainant contends that PPC ads served on Hottie.in are not related to its business. They were adult-related, and "hottie" may have adult sense pretty much. I'm personally against any adult content on the web, but trying to take the domain away from rightful owner on the base of false allegations is much worse.

    Many people wonder all the time why there is no much interest to .in domains from foreign medium/high level domain investors. The reason is INDRP arbitration is a joke as it was again proven in the Hottie.in case by the arbitrator Ranjan Narula.

    In this regard, I was always wondering why INDRP arbitrators were/are being invited to the domain conferences all the time. They no doubt enjoy such "vacations", being honored and invited to sit among domain gurus etc., but most of them in fact are domainers non-friendly. What is the point to spend money on them? Imho almost all of them should have been ignored, and only those who were proven to rule honestly and competently in INDRP cases can be allowed to be among invited guests, speakers etc.
     
    Last edited: May 3, 2017
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  2. Jeff
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    Jeff Canada Administrator Staff Member

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  3. kriss05

    kriss05 Russian Federation Active Member

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    Oh yes. From the tvs.co.in INDRP case:

    "The Complainant has firmly refuted that TVS is a non-distinctive acronym widely used for Televisions. The documents submitted by the complainant, as Exhibit-B, clearly show that the websites in India have used TVs (with S as a small letter) as an acronym for Television. On the other hand, TVS is a well-known trade mark in India derived from the founder's name T V Sundaram Iyengar and Sons. Therefore, it is reiterated that the Respondent's lame defense that TVS is a commonly used acronym is wrong and without any valid ground."

    What was that above? Do you read it as I do? Maybe there is alternative meaning of the above I'm not aware of?
     
  4. kriss05

    kriss05 Russian Federation Active Member

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    The pearl from the TVS.co.in INDRP arbitrator Amarjit Singh:

    "The Panel agree with the contention of the Respondent that the Complainant has not been able to establish its right in the trade/service mark TVS in Canada. However, the goodwill and common law rights have no such territorial boundaries. In todays world, the goodwill travel beyond geographical boundaries of countries. The Panel further agree with the Respondent that the term TVs can be used for television provided the same is used in a generic bonafide manner."

    The above causes me physical pain. My brain hurts.

    Arbitrator agrees that it is generic term and that the Complainant has no TM rights in Canada, the country of residence of respondent.

    The 2010 court case (HIGH COURT OF DELHI AT NEW DELHI): Century 21 Real Estate L.L.C. vs. Century 21 Main Realty Pvt. Ltd. & Ors.:

    "The plaintiff has not placed on record any document to show that its reputation has travelled to India in any manner. Merely because a company is having presence in many countries in the business of reality does not mean that the company’s reputation has travelled to every single country on earth. Reputation and goodwill of a company are intangible assets and these intangible assets are to be shown to exist. Intangible assets in India are to be proved by way of evidence. There can be no presumption in favour of a corporation of intangible assets in India merely because the company has a reputation and goodwill somewhere else."

    Yet 6 years later arbitrator Amarjit Singh ruled absolutely opposite.

    So this arbitrator is not only not familiar with basics of domain dispute proceedings, but his rulings contradict with the very rulings of the Indian High Court. Perfect example of an arbitrator who should have never been allowed to be invited guest/speaker on any domain conference.
     
    Last edited: May 3, 2017
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  5. Jeff
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    Jeff Canada Administrator Staff Member

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    Thanks @kriss05!

    Is there a way to search Indian case law available online, or how are you finding these cases?
     
  6. kriss05

    kriss05 Russian Federation Active Member

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    As far as I remember it is possible on Delhi/Hyderabad high court websites, but it was a pain a bit last year. Also few websites offer similar subscription-based services.
     
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  7. wot

    wot Thailand Well-Known Member

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    Maybe cynical but!

    Plain and simple there is corruption in low places, happened too often with .in domains for it not to be happening.
     
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  8. kriss05

    kriss05 Russian Federation Active Member

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    I wonder why Nixi don't care about it. Don't they realize how they and INDRP arbitration, not to mention "honorable" INDRP arbitrators, look in views of everyone but them.

    If they are unable to find few honest and competent arbitrators in India, they could outsource dispute proceedings to UDRP arbitrators. Being non-profit org, they have enough cash to cover UDRP fees.
     
  9. domainpundit

    domainpundit United Kingdom Active Member

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    I can't understand either.. INDRP is nothing but official route to steal the domain names..hope registry at least come to pragmatic approach.. I lost my respect for Mr Ranjan for sure after reading this thread.
     
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