In an interesting  UDRP decision today  the domain holder Futurename of Paris said they purchased a 1,000 domain name portfolio for  $1,000,000 in August  2014.

Some of the domain names purchased according to Futurename have the following values:  colis.com USD 7,600, though.com, USD 59,000, monnaie.fr – EUR 10,000, bons.com – USD 12,000, milkshake.net – USD 4,000.

The domain at issue in the UDRP is VW.qa

The complainant Volkswagen said the price paid for the portfolio was “not credible” and the panel pretty much agreed since the domain holder produced no evidence of the purchase and some of the dates where the whois records updated did not match the time frame of the supposed purchase.

The killer for the domain holder, is that they reached out to Volkswagen offering to sell the domain for $7,500 which was in excess of their out of pocket cost.

The one member panel of Nick J. Gardner ordered the domain transferred finding:

“The Respondents’ case in this regard rests on two contentions. ”

“The first is to say that there are other persons who could use the term VW to refer to themselves.

The Respondents suggests Verizon Wireless, Vera Wang, VoyeurWeb, Void Walker (World of Warcraft), VistaWay (Disney Group) and VolksWriter as examples of such persons.

The Respondents have not produced any further evidence explaining who such persons are or why they would have such rights or why that would assist the Respondents. It is not clear to the Panel that the Respondents claim in this regard is correct though each case would need to be assessed on its merits with the benefit of proper evidence.

The Panel does not know what such evidence would comprise (and the Respondents have not provided any assistance in this regard) but it is perhaps easier to surmise that Vera Wang, (who the Panel understands is an international dress designer) might have a claim to a legitimate interest in using her own initials, but rather harder to see how that can be the case for “Void Walker” (who the Panel understands to be a type of character in the World of Warcraft game series). However the point does not matter as nowhere are the Respondents suggesting they themselves are any of these persons or acting on their behalf.

As such nothing the Respondents have produced in this respect establishes a legitimate interest on the part of the Respondents themselves in the letters “VW”.

More generally, the Respondents suggest that the Complainant cannot own a two letter acronym and that there are many other references or meanings for that acronym.

Were that to be correct, there might be some substance to this claim. However the examples the Respondents give are as follows: VeryWell, Virtual Worlds, Viet Nam War, Vintage Wine, Vapor-Ware, Vehicle Warranty and Very Welcome.

The Respondents have not attempted to put in evidence any examples showing the acronym “VW” being used as a reference to any of these terms or as shorthand for any of these terms and the Panel finds the Respondents’ argument wholly unconvincing.

Taking for example one of the terms the Respondents suggest, the Panel cannot recall or readily conceive of the Vietnam War being referred to as “VW” in any sensible context that would be readily recognised by the public.

If confirmation of this were required a Google search for either the terms “vietnam war vw” or “war vw” does not produce, as far as the Panel can see, even a single example of such usage.

In fact, all of the examples produced by the Respondents seem to the Panel to indicate precisely the reverse of what the Respondents contend – namely that the two letter acronym “VW” is entirely associated with the Complainant and does not commonly have any wider usage referring to other unrelated matters.

Again, if confirmation of this is required a Google search for “VW” produces results over many pages (the Panel reviewed the first 10 pages of results) all of which clearly refer to the Complainant or its products. These results include material generated directly by the Complainant as well as other legitimate references to the Complainant’s products (by, for example, motoring publications, third party motor dealers, and enthusiast clubs, and so on).

The Panel accordingly concludes the Respondents have failed to show that the letters “VW” are widely used in relation to subject matter unconnected with the Complainant such that they can claim a legitimate interest in themselves using the letters.

Accordingly the Panel finds that the Respondents have has no rights or legitimate interests in the letters “VW” and the second condition of paragraph 4(a) of the Policy has been fulfilled.

In the present circumstances, the distinctive nature of the VW trade mark, and the evidence as to the extent of the reputation the Complainant enjoy in the VW trade mark, and the identity of the Domain Name to the VW trade mark, lead the Panel to conclude the registration must have been effected with the Complainant and its VW trade mark in mind. Was this registration or use in bad faith?

The history of the Domain Name requires some explanation.

The Panel does not know when the Domain Name was first registered, or by whom.

The WhoIs data provided by the Complainant as an annex to its Complaint simply shows that the record was last modified on August 12, 2014, and provides details of the First Respondent as the registrant.

This does not show when the Domain Name was first registered or by whom, or when the Second Respondent (if it was not the original registrant) acquired it.

However, the material provided by the Registrar which showed the Second Respondent as the actual registrant also stated that

“The domain name was transferred into the current registrant’s account within our system on the 13th Dec 2013.” It also showed the expiry date of the Domain Name as December 21, 2014.

So far as the evidence is concerned, the Second Respondent first offered the Domain Name to the Complainant by an email sent on August 31, 2014, to an email address address for the Complainant reading as follows:

“To whom it may concern, We are a communication agency specialised on branding and naming. One of our client recently acquired a domain portfolio, not without difficulty, and we think that one of them could be interesting for you as part of the development of your activities, We would like to propose you the following domain name, before it’s auctioned: HTTP://WWW.VW.QA This domain name is open to offers. We thank you in advance for the attention given to our proposal and remain available for further information.”

This appears clearly an offer to sell the Domain Name on a commercial basis, failing which it would be auctioned.

It is not clear to the Panel whether this email was actually received and no reply to it is present in the evidence.

However the subsequent correspondence following the Complainant’s cease- and-desist letter (above) resulted in an offer from the Second respondent to sell the Domain Name for USD 7,500.

Given the original cost of registration of the Domain Name was likely to have been only a relatively few dollars, the clear and natural inference to be drawn from this correspondence is that the Domain Name was to be sold for a price higher than it had cost the Second Respondent (or its supposed client) to obtain it.

This would also be consistent with the obvious commercial nature of the Second Respondent’s approach.

As such this amounts to evidence of bad faith in accordance with paragraph 5(b)(i) of the Policy: “circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name.”

However the Respondents now say that they obtained the Domain Name when they purchased a portfolio of domain names for USD 1million in August 2014.

The relevance of that assertion is that it enables the Respondents to say there was a “price per domain” of USD 10,000 and hence suggest their offer to sell the Domain Name for USD 7,500 was for less than they paid for it and hence the inference that paragraph 5b(i) applies is displaced.

The question is whether the Respondents’ account of this transaction is to be accepted?

Having reviewed all the material available to it, the Panel, on the balance of probabilities, declines to accept this account from the Respondents.

The Panel is conscious that proceedings under the Policy are of a limited and restricted nature, do not involve oral hearings, discovery or cross examination, and hence are only applicable to clear cut cases, and it is not usually appropriate to decide disputed questions of fact or matters of truth or falsehood.

That does not, however, mean the Panel cannot reach a conclusion as to the veracity of a case that is being advanced where the only evidence that is provided is in the form of conclusory statements that are inherently not credible, and which are not supported by relevant corrobative or third-party evidence. The Panel considers this to be such a case. This is for the following reasons:

– No evidence has been produced to substantiate this supposed transaction.

This is despite the fact that the Complaint made very clear the Complainant did not consider the Respondents’ account to be true – e.g. “It is not credible that the respondent spent $1 million on a portfolio of domains” [emphasis present in original].

The Respondent has clearly understood this allegation as it repeats it in its Response and then simply states “About point V – C : ‘It is not credible that the Respondent spent [USD] $1 million for a portfolio of domains […]’ Well, this is our job, and the willingness of our clients.

“We are a branding agency, not a kind of cybersquatter.”

That is simply not an adequate response to a very clear allegation, especially when the means to answer it properly must have been readily available if the account was true.

It would have been very simple for the Respondents to have produced proper evidence showing the details of this transaction, exactly which names were comprised in the portfolio, and how much was actually paid, and by what means and so on.

Similarly the Respondents have not even attempted to explain who the second Respondent is and how it had the resources to effect such a transaction.

The supposed acquisition of the Domain Name in August 2014 is inconsistent with the information provided by the Registrar stating that the Domain Name was transferred to the Second Respondent’s account in December 2013.

In relation to the supposed portfolio acquisition, the Respondents have only provided details of what they say are five other names in the portfolio – the Panel notes that all of these appear to be generic terms (<colis.com>, <though.com>, <monnaie.fr>, and <milkshake.net> – colis is French for “parcel” and monnaie is French for “currency”) and this limited information with the values the Respondents say apply to these names is simply not sufficient to suggest a figure of USD 1 million or anything like it was an appropriate valuation for the entire portfolio.

The Second Respondent claimed in correspondence with the Complainant to be acting on behalf of a client, which it did not identify. It now appears that no such client exists.

-The Panel has also reviewed the Second Respondent’s website at “www.future.name”.

This simply comprises a single page with the wording “Future.Name. We are an expert agency specialized [sic] in naming and branding. We are located in USA (NYC) and Europe (Paris). Because we take great care of our patners [sic] and clients our website is not yet available. Enjoy this awesome splashpage and feel free to contact us whenever you need to.” The web page then has the word “clients” and the logos of four organisations – Square, Google, Microsoft and Renault. The rudimentary nature of this page, the lack of any substantive content and the grammatical/spelling mistakes cast further doubt on the veracity of the Respondents’ explanation.

-The Panel does not consider that the Respondents now claimed intention to use the Domain Name for a project called “VieW, Questions and Answers” alters this position – no real details of this project have been provided.

The Respondents say they will use the Domain Name instead of <ecole.fr>, but as at the date of this decision attempting to access a website at “www.ecole.fr” simply redirects to the same Tumblr page as previously discussed.

No explanation has been provided by the Respondents of what this supposed project is or how it relates to the Second Respondent’s business.

The Panel doubts it exists and discounts it.

As a result, the Panel considers that the offer by the Second Respondent to sell the Domain Name to the Complainant was an offer to sell it for more than the Respondents’ documented out-of-pocket costs and is evidence of the Domain Name having been used in bad faith.

Under the Policy use in bad faith suffices to satisfy the third condition of paragraph 5(a) of the Policy which has therefore been fulfilled in respect of the Domain Name.