WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vetrotex France v. Domain Name Clearing Company LLC
Case No. D2000-1396
1. The Parties
Complainant is Vetrotex France, 130 avenue des Follaz, 73009 Chambéry Cedex, France, represented by Isabelle Roujou de Boubée, hereinafter the "Complainant".
Respondent is Domain Name Clearing Company LLC, 4640 Jewell, Ste. 202 A, San Diego, CA 92109, USA, represented by Chris Truax, attorney, hereinafter the "Respondent".
2. Domain Name and Registrar
The domain name at issue is "vetrotex.com", registered on March 18, 1997, hereinafter referred to as the "Domain Name". The registrar is Tierranet, Inc.
3. Procedural History
The WIPO Arbitration and Mediation Center (the Center) received the Complainant’s complaint on October 16, 2000, (electronic version) and October 17, 2000, (hard copy). The Center verified that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). Complainant made the required payment to the Center. The formal date of the commencement of this administrative proceeding is November 29, 2000.
The Center transmitted to Tierranet, Inc. a request for registrar verification in connection with this case. Tierranet, Inc. replied, confirming that the Respondent is the registrant.
Having verified that the complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted on November 29, 2000, to Respondent, Notification of Complaint and Commencement of the Administrative Proceeding, via post/courier and e-mail, in accordance with the following contact details:
Domain Name Clearing Company, LLC
2630 First, Ave., Ste. 202
San Diego, CA 92103
Domain Name Clearing Company, LLC
4640 Jewell, Ste. 202A
San Diego, CA 92109
Domain Name Clearing Company, LLC
P.O. Box 2127
La Mesa, CA 91943
The Center advised that the Response was due by December 18, 2000. On December 18, 2000, the Center received an email from Chris Truax, stating that he was the attorney representing Respondent and that because of the difficulties in gathering the information necessary to properly oppose the complaint, he requested a 30-day extension to file Respondent's response. Although Complainant objected, the Center granted an extension of time to file the response until January 10, 2001. However, no response was filed and the Panel is not aware of any response filed until today. Accordingly, the Center issued a Notification of Respondent Default on January 12, 2001.
In view of the Complainant’s designation of a single panelist, the Center invited Mr. Geert Glas to serve as a panelist.
Having received on January 31, 2001, Mr. Geert Glas' Statement of Acceptance and Declaration of Impartiality and Independence, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Geert Glas was formally appointed as the Sole Panelist. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.
The Administrative Panel shall issue its Decision based on the complaint, the evidence presented, the Policy, the Rules and the Supplemental Rules.
4. Factual Background
According to Complainant, the Saint Gobain Company groups together the main areas of its activity as a glass fiber reinforcement producer under the "Vetrotex" banner, making it the number one European producer and the second producer worldwide. It is supported by a number of production companies in Argentina, Brazil, France, Germany, India, Italy, South Korea, Spain, Thailand, United States and sells its products in all continents under the trademark "Vetrotex".
The complaint is based upon the following trademark registrations for "Vetrotex", copies of which appear in an annex to the complaint:
US Trademark "Vetrotex" N° 961,812 registered on the Principal Register on June 26, 1973, for glass fiber products of the international classes 17, 21, 22, 23 and 24.
French Trademark N° 1 612 841 "Vetrotex" registered on July 1, 1980, for products of the international classes 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34.
It appears from a document attached to the Complaint that on July 7, 1997, and following a request by Complainant to use the Domain Name, Complainant's network manager, received following email:
"My name is Chris Truax. I am an attorney representing Domain Name Clearing Company, LLC. In addition to providing legal advice, I also assist DNCC with its business affairs.
DNCC does own vetrotex.com. I believe it was acquired for one of DNCC's projects. However, if you would like to purchase the name, I will see that DNCC considers any offers you might care to make.
It is interesting to note that the email address of Respondent is email@example.com, whereas the domain name "lexlaw.com" belongs to Respondent's representative, according to Network Solutions' WHOIS record. Moreover, according to the same record, Respondent and his representative share offices, since Respondent's representative is, like Respondent, located at 4640 Jewell, Ste. 202A, San Diego, Ca. 92109, US.
There is no relation between Respondent and Complainant and Respondent is not a licensee of Complainant, nor has he otherwise obtained an authorization to use Complainant’s marks.
The Domain Name is not connected to any web site.
5. Parties Contentions
Complainant contends that Respondent has registered the Domain Name which is identical to Complainant's "Vetrotex" trademarks, that Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name has been registered and is being used in bad faith.
Consequently, Complainant requires the transfer of the Domain Name registration.
No response has been submitted.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Applied to this case, Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the Domain Name registered by the Respondent is identical or confusingly similar to the trademark in which the Complainant has rights; and,
(2) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and,
(3) that the Domain Name has been registered and is used in bad faith.
The Domain Name is "vetrotex.com".
"Vetrotex" is a registered trademark of Complainant.
In view of the above, the Administrative Panel finds that the Domain Name is identical to the trademark "Vetrotex" of the Complainant.
b. Rights or Legitimate Interests
Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks or to apply for any domain name incorporating any of those marks. In addition to that, as pointed out by Complainant, it appears that Respondent has not registered nor used the name "Vetrotex" as a trademark, nor has it ever been known by this name, although the Domain Name has been registered by Respondent since a fairly long time.
The fact that Respondent held the Domain Name during almost four years without connecting or otherwise using it tends to demonstrate that Respondent does not have a legitimate interest in the Domain Name.
Moreover, by not submitting a response, Respondent has failed to invoke any circumstance, which could demonstrate, pursuant to paragraph 4c of the Policy, any rights or legitimate interests in the Domain Name.
The Administrative Panel therefore finds that Respondent has no right or legitimate interest in the Domain Name.
c. Registration and Use in Bad Faith
Several facts have to be taken into consideration when assessing the absence/presence of bad faith in this matter:
1. When Respondent was contacted by Complainant in July 1997, some months after the Domain Name was registered, Respondent's attorney indicated that Respondent had registered the Domain Name for one of its projects. He however immediately offered to see to it that any purchase offers would be considered by Respondent.
2. Although Respondent requested and received an extension of time to file of more than 20 days, Respondent did not submit any response as of today.
3. Respondent does not make any demonstrable use of the Domain Name, although Respondent registered the Domain Name almost four years ago and had registered it "for one of [its] projects".
4. It is unclear what the nature is of Respondent's business. It's name (Domain Name Clearing Company) seems to suggest that Respondent's activities relate to clearing and filing domain names for third parties. The close links which seem to exist between Respondent and his attorney (same address, attorney's domain name ("lexlaw.com") is used for Respondent's administrative contact, the attorney states to also assist Respondent with its business affairs) corroborate the impression that Respondent's activities relate to the trading in domain names, rather than the bona fide use of domain names.
In view of the above, the Panel finds that circumstances are present indicating that Respondent has registered the Domain Name for the purpose of, among others, selling, renting, or otherwise transferring the Domain Name registration to the Complainant, who is the owner of the trademark "Vetrotex", or to a competitor of Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the Domain Name.
Moreover, the Panel finds that the fact that Respondent held the Domain Name during such a long time without making any use of it tends to show bad faith on behalf of Respondent.
Finally, by not submitting a response, Respondent has failed to invoke any circumstance, which could demonstrate that he registered and used the Domain Name in good faith. This fact is even more troubling in the current case: Respondent had knowledge of the complaint and even instructed his attorney to request an extension to file a response, "because of difficulties in gathering the information necessary to oppose the complaint". It is unclear to which "difficulties" Respondent's attorney is referring. Respondent's failure to file such response therefore comes as close as one can come to a tacit acknowledgment of the absence of such elements of good faith.
In light of the foregoing, the Administrative Panel decides that the Domain Name "vetrotex.com" registered by Respondent is identical to the trademark of Complainant, that the Respondent has no right or legitimate interest in respect of the Domain Name, and that the Domain Name has been registered and is being used in bad faith.
Accordingly, pursuant to Paragraph 4, i of the Policy, the Administrative Panel requires that the registration of the Domain Name "vetrotex.com" be transferred to Complainant.
Dated: February 22, 2001