1. This petition under Section 34 of the Arbitration and Conciliation Act, 1996 (“Act”) has been filed by Thought Works Inc. a company organised and existing under the laws of Delaware, United States of America challenging an Award dated 12th July, 2015 passed by the sole Arbitrator, National Internet Exchange of India (“NIXI”), in the disputes between the Petitioner and the Respondent, Super Software Pvt. Ltd.

2. The Petitioner is stated to be engaged in the business of IT consulting, software development services and sale of proprietary software under its coined trademark/tradename, Thought Works, since 1993. It is stated that it has expanded its business under the above mark to 13 countries and has about 34 offices, which includes an office in India. It is stated that in India the Petitioner has been directly using the trademark at lease since 2001. The Petitioner has registered its trademark Thought Works in India on 22nd June, 2001 under class 9.

3. It is stated that in March, 2015, the Petitioner became aware that the domain name Thought works in was registered by Respondent No. 1 when one of the analysts of the Petitioner accessed the website of Respondent No. 1 mistaking it to be the Petitioners website. An email to that effect was sent to the Petitioner, a copy of which has been placed on record. The Petitioner has also placed on record the details in the WHOIS record of the impugned domain name.

4. In May, 2015 itself, the Petitioner filed a complaint against Respondent No. 1 before NIXI under the In Domain Dispute Resolution Policy (“INDRP”) and the Procedure Rules of NIXI. The Respondent contested the above complaint and filed a reply on 26th June, 2015 contending that “the generic nature in a combined phrase was deemed harmless and not infringing on any one's existing Indian trademark or copyright” at the time of registration of the domain name. It was further contended that while the Petitioner was a technology service company, neither did it transact any business online nor offer any e-commerce related services. It was further contended that the Petitioner had not made any effort to contact Respondent No. 1 or to resolve the matter amicably. In the impugned Award dated 12th July, 2015, the sole Arbitrator held as under:-

(i) There were three addresses given for the Petitioner in the complaint as regards the owner of the trademark “Thought-works” and there was no explanation available for the discrepancy. Therefore, it became difficult to hold whether, in India, the Petitioner having its office in Chicago in the USA was the owner of the trademark “Thought-Works”.

(ii) Along with the complaint, no copy of the certificate of registration of the trademark of any country, including India, was submitted or provided by the Petitioner. Even the date of registration of the trademark “Thought-Works” in India was not provided. Therefore, it could not be held that the domain name www.thoughtworks.in was confusingly similar or identical to the trademark of the Petitioner.

(iii) The Respondent was making a legitimate and fair use of the domain name although he was carrying on business „very much similar to the business of the Complainant”.

(iv) For over three years, the Petitioner had not claimed the disputed domain name. Between the period of 18th August, 2011 till the registration of the domain name in favour of Petitioner on 31st October, 2014, the domain name remained unregistered and freely available.

(v) The Petitioner, on the other hand, had no explanation as to why the action was not taken for all these years. Therefore, the Petitioner had failed to establish four elements constituting the INDRP policy which had to be fulfilled for a complaint to be successful.

5. In the present petition, none appeared for the Respondent No. 1 despite service. As far as Respondent No. 2, NIXI, is concerned, the entire record has been produced. Otherwise Respondent No.2 is not a party to the Award.

6. This Court has heard the submissio