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1. Parties and Contested Domain Name
The Complainant is Bharatplanet.com Limited, which is based in Chennai, Tamil Nadu, India. Complainant operates an Indian multi-lingual
email service, with an active website at http://www.bharatmail.com. (See Attachment A.) The domain name bharatmail.com was registered
on March 9, 1998. (See Attachment B.)
The Respondent is Adnet Solutions, which is based in Bangalore, Karanataka, India. Respondent also operates an Indian multi-lingual
email service, with an active website at the contested domain name - http://www.bharathmail.com (seeAttachment C.) The domain name
was registered on February 4, 1998. (See Attachment D.)
2. Procedural History
The electronic version of the Complaint form was filed on-line through eResolution's Website on July 24, 2000. The hardcopy of the
Complaint Form and the choice of jurisdiction were received on July 25, 2000. Payment was received on August 10, 2000.
Upon receiving all the required information, eResolution's clerk proceeded to:
- Confirm the identity of the Registrar for the contested Domain Name;
- Verify the Registrar's Whois Database and confirm all the required contact information for Respondent;
- Verify if the contested Domain Name resolved to an active Web page;
- Verify if the Complaint was administratively compliant.
The inquiry led the Clerk's Office of eResolution to the following conclusions: the Registrar is Network Solutions, the Whois database
contains all the required contact information, the contested Domain Name resolves to an active Web page and the Complaint is administratively
compliant.
An email was sent to the Registrar by eResolution Clerk's Office to obtain a copy of the Registration Agreement on July 25, 2000.
The requested information was received on July 26, 2000.
The Clerk's Office then proceeded to send a copy of the Complaint Form and the required Cover Sheet in accordance with paragraph
2 (a) of the ICANN's Rules for Uniform Domain Name Dispute Resolution Policy.
The Clerk's Office fulfilled all its responsibilities under Paragraph 2(a) in connection with forwarding the Complaint to the Respondent
on August 11, 2000. That date is the commencement date of the administrative proceeding.
On August 11, 2000, the Clerk's Office notified the Complainant, the Respondent, the concerned Registrar, and ICANN of the date of
commencement of the administrative proceeding.
The Complaint form, the official notification and all the annexes were sent by Canada Post to the respondent's various addresses.
According to the advice of receipt received by eResolution, it was received by the Respondent.
On August 21, 2000, the Respondent requested an id and a password in order to access the website.
On August 22, 2000, the Clerk's Office provided the Respondent with an id and a password.
On August 22, 2000, the Respondent submitted, via eResolution website, its response. Respondent attempted to send a hard copy of
the response via fax, but eResolution did not receive it all.
On August 24, 2000, the Clerk's Office allowed the Respondent a ten-day delay in order to provide the Clerk's Office with the signed
response form. The signed version of the response was never received.
On August 31, 2000, the Clerk's Office contacted Ms. Sandra Sellers, and requested that she acts as panelist in this case.
On September 3, 2000, Ms. Sandra Sellers accepted to act as panelist in this case and filed the necessary Declaration of Independence
and Impartiality.
On September 5, 2000, the Clerk's Office notified the Respondent and the Complainant of the Respondent's failure to provide the Clerk's
Office with a signed Response form, and that according eResolution Supplemental Rules section 7. c.iii.b.ii, the administrative proceeding
therefore would be conducted and decided on the basis of the Complaint alone.
On September 5, 2000, the Clerk's Office forwarded a user name and a password to Ms. Sandra Sellers, allowing her to access the Complaint
Form and the evidence through eResolution's Automated Docket Management System.
On September 5, 2000, the Parties were notified that Ms. Sandra Sellers had been appointed and that a decision was to be, save exceptional
circumstances, handed down September 18, 2000.
On September 5, 2000, the Respondent sent an email to the Clerk's Office, noting that Respondent never received the Clerk's email
of August 24. He requested reconsideration of the default and permission to file a signed, hardcopy of his response.
On September 13, 2000, the Parties were informed that the Panel reconsidered the Respondent's default and allowed the Respondent
to submit its Response form no later than at 9:00 AM (Montreal time) on Thursday, September 14, 2000. The Panel's decision stated:
"Each request for extension of time to file a response must be considered individually. In this instance, the Respondent filed a
response electronically, and attempted to comply with the rules by faxing a hard copy. Unknown technical difficulties between Respondent
and the Clerk's Office disrupted receipt of the faxed response, of which Respondent did not become aware until September 5, at which
time he immediately requested permission to resend the response by facsimile. Due to Respondent's attempt to comply with the rules
on August 22, the Panel grants Respondent's request to file a signed, hardcopy of the response by 9:00 AM ( Montreal time) Thursday,
September 14, 2000. However, the hardcopy response must be the same as the electronic version received on August 22; no new content
may be introduced."
On September 13, 2000, the Clerk's Office received the signed response form, posted it online and informed both Parties and the Panel.
On September 15, 2000, the Clerk's Office received and forwarded to the Panel Complainant's request to file a rebuttal to the Response.
This request is hereby denied.
3. Factual Background
Complainant registered its domain name, bharatmail.com, on March 9, 1998, and launched its email service shortly thereafter. (See
Attachment A). The Complainant has applied for trademark registration of "bharatmail" with Office of the Trade Marks Registry at
Chennai, and also has applied for Grant of a Patent for its method of transliteration from English to another language. The trademark
and patent applications are pending.
Respondent Adnet Solutions offers consultancy and implementation of web based networks and applications, in addition to the email
services. (See Attachment C). According to its Response, it currently is being merged with another Indian company, which will give
it the resources to expand its business and services.
In July 2000, Complainant contacted Respondent about selling the disputed domain name. Respondent indicated it would not sell the
domain name for less than Rs. 10,00,000/- (Rupees Ten Lakhs only), which Complainant indicated is about US$25,000.00. It appears
that the parties did not discuss the sale further.
4. Parties' Contentions
Complainant contends that the contested domain name, bharathmail.com, is confusingly similar to Complainant's domain name, bharatmail.com.
"Bharat" and "bharath" both mean "India," and are pronounced the same. Complainant appended several email messages in which users
of the bharatmail.com service refer to bharathmail.com within the text, which demonstrates the ease with which the two spellings
can be confused. Complainant further contends that Respondent did not offer its email services until after Complainant launched its
own email services, and that Respondent uses the contested domain name to create confusion and attract customers to the contested
domain name.
Respondent contends that it registered bharathmail.com prior to Complainant's registration of bharatmail.com, that Respondent does
use the domain name for legitimate business purposes, and that it intends to expand its service after its merger with another Indian
company.
5. Discussion and Findings
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
1) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which
the complainant has rights; and,
2) that the respondent has no legitimate interests in respect of the domain name; and,
3) that the domain name has been registered and used in bad faith.
The question before this Panel is whether the Complainant has satisfied the requirements of Paragraph 4(a) with respect to these
three elements, all of which must be proved by Complainant.
It is not necessary to discuss all elements of Paragraph 4(a), because the Complainant has not produced prima facie evidence that
Respondent has no legitimate interests in respect of the domain name and that the domain name has been registered and used in bad
faith.
The Whois search reveals that Respondent registered the contested domain name, bharathmail.com, on February 4, 1998, before the Complainant
registered its domain name, bharatmail.com, on March 9, 1998. There is no evidence that Respondent knew of Complainant's nascent
plans at the time Respondent registered the contested domain name (nor vice versa.) Consequently, Complainant has not proven that
the domain name was registered in bad faith.
Similarly, Respondent actively uses the contested domain name, and has plans to expand its business and services upon fulfillment
of a pending merger. Looking at this matter in the context of Respondent's overall business of providing Internet consultancy and
implementation of web based networks and applications, it appears reasonable for Respondent to offer email services as an extension
of its overall business, and does not appear to be done in bad faith. This Panel therefore finds that Respondent has legitimate
interests in the contested domain name and is not using it in bad faith.
6. Conclusions
Accordingly, this Panel finds that Complainant has not met all the requirements of UDRP 4(a). Complainant's Request to transfer the
BHARATHMAIL.COM domain name to Complainant is DENIED.
Date: September 18, 2000
McLean, Virginia, USA
(s) Sandra A. Sellers
Presiding Panelist
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