The Complainant, RAI Radiotelevisione Italiana S.p.A. of Italy, filed a complaint with the WIPO Arbitration and Mediation Center in connection with the domain rai.mobi. The Complainant alleged that in registering the domain rai.mobi the Respondent, Netwizzy Company S.L of Spain, infringed on the Complainant’s trademarks which incorporate the letters “RAI” to which the Complainant is widely recognized. The Complainant stated that they had previously sent the Respondent a letter seeking to acquire the domain but that the Respondent never acknowledged their request.
In order to defend their registration of the domain, the Respondent produced evidence establishing the following points. First, the Respondent produced Google search results which show that “RAI” was not a term that was exclusively used by the Complainant. In fact, the Respondent noted that most of the search results referred to the “Registro de Aceptaciones Impagadas” which the Respondent claims to be the largest source of information in Spain regarding defaults and debts. Second, the Respondent claimed that even though they had not yet utilized the domain, they intended to use it to exploit an online business related to the search service of the “Registro de Aceptaciones Impagadas” through mobile terminals as the domain is specifically for mobile phone use. Third, the Respondent claimed that failure to respond to the letter of inquiry does not constitute proof of anything as it does not fall into any of the three elements that the Complainant is required to show in order to be successful in their claim. Therefore, the Respondent contended that the Panel does not have any right to draw inferences from their failure to respond to the Complainant’s request.
In making their decision the Panel explicitly stated that the basis of their decision depended on whether they believed the Respondent’s story to be credible. Despite the Respondent’s insistence that the letter and their failure to respond should not hold any merit in the Panel’s decision making process, the Panel felt otherwise. First, the Panel noted that if the Respondent was acting in good faith they would have responded to the initial letter sent by the complainant. By not responding the Panel assumed that the Respondent, as a company in the same line of business as the Complainant, was guilty as, “innocent people do not like being falsely accused and are normally quick to put the accuser right.” Additionally, the Panel noted that because the respondent did not wait for general registration but instead registered the domain at a premium price, the Panel was able to draw the conclusion that if the domain was worth a premium value then it must be associated with the Complainant as they are well known and likely have given it the said premium value. With these assumptions as the forefront, the Panel determined that the Respondent had no credible story and that it registered the domain with the Complainant’s Trademark in mind and therefore in bad faith.
The Panel’s determination on Respondent’s credibility clearly did not rely on any specific evidence or affidavits submitted by the parties but mostly on personal assumptions and generalities that they believed to be true. In particular the inferences drawn by the panel as they relate to the criteria for a finding of bad faith are sparse and reaching. These inferences, if used in subsequent WIPO decisions could be bad for domain owners as they seemingly allow the Panel to draw conclusions not from the facts but from their own points of view.