The Complainant, an entity that goes by the name of the Robert Kennedy College based in Zurich Switzerland attempted to recover the domain name <kennedyuniversity.com> created on June 30, 2003.
In doing so the Panel found that the relied upon Swiss trademark registered on March 16, 1999 did not appear to be owned by the Complainant but was instead owned by an entity named “Robert Kennedy University”; Were these two entities one of the same?
The Complainant apparently failed to provide an evidence that would indicate that they were.
The first element of the UDRP is quite clear in its requirements and involves a two part inquiry; firstly, that the Complainant demonstrate that it has rights in a trademark and secondly, an examination of identical or confusing similarity between said mark and the domain in dispute.
This case does not deal with the existence of a trademark which so many Complainant’s fail to show in cases relating to common law rights for example, but addresses the question of who is in a position to enforce such rights.
The consensus view among Panels when it comes to trademark licensees or related companies to a trademark filing UDRP cases has been that in most circumstances is considered to have rights in a trademark, many even inferring the existence of a license / or authorization based on the facts but in the present case no such presumption was given.
Not only did the Complainant fail to explain the connection between itself and the entity listed as the owner of the mark it failed to produce copies of other marks it asserted to having ownership of.
Interestingly the Panel explained the reasons it refrained from exercising its right in requesting further statements or documents from the Complainant stating:
“Complainants should “get it right” the first time and should provide all the information necessary to prove their case from the material contained in the complaint and its annexes alone. To give the Complainant “a second bite at the apple” would not be in line with the spirit of expediency and efficiency suggested in the Policy”.
Although the Panel In this case DENIED transfer of the domain name to the Complainant, they did offer some sound counsel to the Complainant in the form of some well thought out questions:
“The Complainant must show that the Respondent had the Complainant’s rights in mind at the time when it registered the disputed domain name and that it is using the disputed domain name with intent to target such rights. The Complainant does not provide any information regarding its institution or organization which might have assisted on this point. What type of institution is the Complainant? Is it the only institution of this name in existence? Is it a prominent institution? How well-known is the trademark relied upon by the Complainant?”
The moral of the story is that Complainant’s need to spend more time understanding the policy and showing respect for the requirements. When a Complainant truly appreciates the burden that they must satisfy then they will make more effort to ensure they make good use of the generous 5000 word limit they have been given to make a thorough and accurate complaint.