Early Learning Centre in the UK challenged registration of the domain name www.earlylearningcentre.com by a respondent located in Viet Nam.  The respondent defaulted.

Early Learning Centre Limited v. Kiansu Thoi, Case No. D2005-0692

Panelist Warwick Smith denied relief, stating:

In summary, the Panel finds that the Complainant has failed to prove this part of the Complaint, for a combination of the following reasons:

1. The Respondent appears to be domiciled in Vietnam. There is no evidence of the Complainant’s mark being registered in that country, and insufficient evidence of its advertising or general reputation extending to that country.

2. The Panel is not prepared to apply any doctrine of “constructive knowledge” of the mark based on the registration of the mark in countries with which the Respondent has no proven connection.

3. Although the Complainant’s mark has no doubt become distinctive of certain goods and services supplied by it in some jurisdictions, the mark is equally capable of being purely descriptive of a common enough service, namely the provision of education facilities for pre-school or other young children.

4. Although the Respondent has failed to submit any Response, and the Panel is entitled to draw such inferences from that failure as it may consider appropriate, the existence or otherwise of a reputation and goodwill in the mark in Vietnam was a matter clearly within the knowledge of the Complainant. The Panel respectfully agrees with the Panelist in the Brooke Bollea case, that panels deciding cases under the Policy should not normally treat a respondent’s failure to respond to the complaint as proof of such matters.

5. The Domain Name has not so far been used, and the period of approximately eight and a half months between the registration of the Domain Name and the commencement of this proceeding is too short for the Panel to draw any useful inferences about the Respondent’s intentions for the use of the Domain Name.

6. There are none of the other common indicia of bad faith registration and use, such as false names or contact information provided in the Whois registration details. (While the Respondent’s physical address provided in the Whois details for the Domain Name appears to have changed, that is not enough on its own to indicate any bad faith desire on the part of the Respondent to avoid contact. If that had been his intention one might have expected him to provide a fictitious email address, but he appears not to have done so.)

7. Having regard to the factors listed 3, 5, and 6 above, the Panel is unable to say that any use of the Domain Name by the Respondent would necessarily be unlawful or otherwise male fide. Accordingly, this is not a case for a finding of bad faith registration and use by passive holding of a domain name under the principles discussed in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.