WIPO ADMINISTRATIVE PANEL DECISION
Eneco BV v. Eneco
Case No. D2010-0548
Decided July 7, 2010
(Domain name in dispute: eneco.com)

Sometimes the other side shoots down your case with evidence they produce.  It happens, and that’s the legal process.

What’s worse, however, is when you, as Complainant submit evidence that you believe makes your case, and yet utterly disproves a necessary element of the UDRP, resulting in the loss of your action.  It’s even worse when the Respondent did not file a reply to the action!

Take as an example the UDRP case of Eneco BV v. Eneco, decided by the WIPO in July, 2010.  As you might guess, the case involves the trademark name “eneco” and the domain name eneco.com.

Complainant Eneco BV filed its trademarks as early at 1994.  Respondent Eneco was a corporation formed in 1991 in Utah, USA.  It appears that the Utah Eneco lost its corporate status for non-renewal in 2008.

Here’s where Eneco BV killed its own case: As said by the Administrative Panel,

“Complainant attached as an annex to the Complaint a copy of the Business Entity Search for Respondent, in which documents from the records of the Utah Department of Commerce disclosed that Respondent’s status had expired on June 6, 2008, for failure to file renewal.”

That gave the Panel a clear legal indication that Eneco (Utah) likely had some legal rights to the name “Eneco” so that was the first nail in Complainant’s coffin which it hammered in, itself.

Then, helpfully, Eneco BV hammered another nail in its coffin:

“Complainant filed as part of its evidence a copy of a Business Entity Search of the State of Utah, Department of Commerce dated April 12, 2010, relating to Respondent, Eneco, Inc. The Business Entity Search shows the Registration Date of Respondent as a corporation was March 6, 1991. The address of Respondent corporation is shown as Salt Lake City, UT. The Business Entity Search shows an individual having the same address as Respondent as the Registered Agent of Respondent. The Business Entity Search shows the status of Respondent corporation as “Expired” for “failure to File Renewal” on June 10, 2008.” (Emphasis added)

Helpfully, the Panel added a couple of nails of its own in Eneco BV’s coffin:

“A search of <eneco.com> on the Internet Archive Wayback Machine at “www.archive.org” provided copies of numerous webpages of Eneco in the period between 2002 and 2008 relating to high-efficiency semiconductor technology for heat-to-electricity converters and solid state heat pumps. Some webpages disclosed the United States Trademark Registration identifier comprised of the letter “R” in a circle. The entry of “eneco” as a search term in the United States Patent and Trademarks Office database disclosed Respondent as the registered owner of United States Trademark Registration Number 1963651 on the Principal Register for the trademark ENECO applied for on September 14, 1993 and registered on March 26, 1996 in relation to licensing of intellectual property rights respecting clean energy.”

So, without further ado, the Panel made its obvious findings:

“The Panel finds that Respondent Eneco, Inc. was registered as a corporation on March 6, 1991 based on the information of the State of Utah, Department of Commerce, Business Entity Search and part of the record in this case. The 1991 corporate registration date receives proximate time support from Respondent’s United States Trade Mark application for ENECO applied for in 1993 in the name of Eneco, Inc. and registered in 1996 in the name of Eneco, Inc.

Respondent having registered a corporation under the name Eneco, Inc. in 1991 and carried on business under that name prior to Complainant’s evidence of use of, application for and registration of its Benelux and other trademarks for or including ENECO was not involved in the abusive registration of the disputed domain name <eneco.com>.

The Panel finds that Complainant has failed to prove that Respondent registered the disputed domain name in bad faith.”

As the burden is on the Complainant to prove all of the elements of the UDRP, so its own evidence killed its case, and lead the Panel to find additional evidence to seal Eneco BV’s fate.

What was left unsaid by the Panel was whether they considered a Reverse Domain Name Hijacking charge against Eneco BV.   Because of the evidence submitted by Eneco BV, it knew or should have known that it could not prove in good faith all of the UDRP elements.  Some panels have taken it upon themselves to make the RDNH finding without prompting from the Respondent.

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If you think you need assistance in a domain name UDRP case, whether as the Complainant or the Respondent, please contact us for a free initial consultation.  Even the call is free. 877-789-UDRP (877-789-8377).