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D ; The E. Scripps Company v. D ; PepsiCo, Inc. D ; Deutsche Post AG v. D ; Kirkbi AG v.
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D ; Classmates Online, Inc. D ; Avanade Inc. D ; Rolex Watch U. Spider Webs, Ltd. D ; Telstra Corporation Limited v. D ; Goldline International, Inc. D ; Parfums Christian Dior S. D ; Viz Communications, Inc. Redsun dba www. D ; Wal-Mart Stores, Inc. D ; Universal City Studios, Inc.
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D ; Plaza Operating Partners, Ltd. International Electronic Communications Inc. D ; Easyjet Airline Company Ltd v. Several panels in the past accepted supplemental filings, but only as an exception based on the particular circumstances of the case, as well as the quality and importance of the supplemental filings and evidence. See e. Design Technology Ltd.
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D ; Nabor B. Stanhome S.
In this Panel's view, the circumstances of the current case do not reach the required level, because the Respondent had an opportunity to address the Complainant's allegations in its Response and because there were no additional facts or a change of factual situation that rendered such supplemental filing necessary.
The Complainant did not justify its supplemental filing; it was simply sent to the Center. As a rule, such filings may be relevant when the party submitting the filing can show that it is responding to facts it could not have been reasonably expected to address in its initial filing. In addition, as is discussed briefly below, admitting that filing in this case would not have changed the result. Another relevant matter is whether the doctrine of laches might apply. The Complainant waited several years before taking action.
The doctrine was described as follows by Sam Ricketson in a panel decision Iogen Corporation v. D :. Some unjustified delay on the part of a person in taking a particular step, e. In some instances, delay alone may be sufficient, e. The most extreme case here is some limitation period that applies to cut off a particular proceeding once the time limit in question has passed. Circumstances other than delay from which it can be inferred that the complainant has consented to or acquiesced in conduct of another person that would otherwise be an infringement of the rights of the complainant.
In general, this will require that the other party has relied upon the conduct of the first party and has acted to his or her detriment on the basis of that reliance, e. As Mr. Ricketson also noted in that case, it is unclear whether such an equitable claim as it is understood in common law jurisdictions can be made here given that the jurisdiction stems from contractual arrangements. In addition, the Complainant is not based in a common law jurisdiction.
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For those reasons, the Panel does not make a finding that the complaint is barred under said doctrine. In accordance with Paragraph 4 a of the Policy, in order to succeed in this proceeding and obtain the transfer of the domain name, the Complainant must prove that each of the three following elements is satisfied:. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights see below, section 7.
The Respondent has no rights or legitimate interests in respect of the domain name see below, section 7. The domain name has been registered and is being used in bad faith see below, section 7.
Paragraph 4 a of the Policy clearly states that the burden of proving that all these elements are present lies with the Complainant. Pursuant to Paragraph 15 a of the Rules, the Panel shall decide the complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Moreover, in accordance with Paragraph 14 b of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom, as it considers appropriate. This question raises two issues: 1 does the Complainant have rights in a trademark or service mark; and 2 is the domain name identical or confusingly similar to such trademark or service mark.
The Complainant need not be the owner of the mark to show the rights in the mark. See inter alia DigiPoll Ltd. D , Grupo Televisa, S. Party Night Inc. D , and Miele, Inc. According to the record the Complainant used the marks since Registration of a common law mark after the registration of the domain name is akin to a confirmation of title.
The Complainant has rights in the mark, even though it was registered after the acquisition of the domain name by the Respondent. At common law, the trademark owner's rights stem from use, which, according to the Record, started in or , i. Absence of registration is relevant, however, when considering the Respondent's bad faith.
The Respondent's objection to the mark - that it is a generic word - is relevant.
According to the Oxford Dictionary, "hun" is defined as follows:. One of an Asiatic race of warlike nomads, who invaded Europe c A.
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A reckless or wilful destroyer of the beauties of nature or art: an uncultured devastator: cf. A person of brutal conduct or character; esp. Also attrib. A flying cadet: see quots. Air Force slang in the war of Hence esp. Yet, the presence of a common word does not defeat a finding of confusing similarity. What matters is the impression of an average Internet user. The similarity between the type of goods or services and the marketing method s used are other relevant factors. Given the high degree of similarity between the services offered, the Panel finds that the domain name is confusingly similar to the Complainant's mark.
See Banque Saudi Fransi v.