WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

CGNU Plc v. Studio Promoart

Case No. D2001-1152

 

1. The Parties

Complainant is CGNU Plc, a corporation organised under the laws of Great Britain, having its principal place of business in (EC3P 3DQ) London (St. Helenís, 1 Undershaft), Great Britain and represented by Miss Siobhán Leslie, ("Complainant").

Respondent is STUDIO PROMOART, a company organised under the laws of Poland, having its principal place of business in (PL 31-416) Krakow, Poland ("Respondent").

 

2. The Domain Name and Registrar

The domain name at issue is <commercial-union.com>. The Registrar is NamesDirect.com, Inc. ("the Registrar").

 

3. Procedural history

On September 20, 2001, Complainant sent an electronic copy of the Complaint to the World Intellectual Property Organization Arbitration and Mediation Center ("the Center") and also directly to Respondent. A hard copy under cover of a letter of the same date was received on September 25, 2001 ("the Complaint").

On September 21, 2001, an Acknowledgement of Receipt of Complaint was sent by the Center to the Complainant.

On September 24, 2001, Respondent sent a Polish language email to the Center.

On September 24, 2001, a Request for Registrar Verification was transmitted by the Center to the Registrar.

On September 25, 2001, the Registrar confirmed by email that the domain name <commercial-union.com> is registered with the Registrar and that Respondent is the current registrant of that domain name.

On October 1, 2001, the Center sent a Complaint Deficiency Notification to Complainant and Respondent.

On October 12, 2001, Complainant submitted an amended Complaint.

On October 16, 2001, the Center sent a Notification of Complaint and Commencement of the Administrative Proceedings to Complainant and Respondent.

On November 7, 2001, the Center sent Respondent a Notification of Respondent Default.

On November 19, 2001, the Center sent by email a Notification of Appointment of Administrative Panel and Projected Decision Date to the parties, in which Wolter Wefers Bettink was appointed as Sole Panelist.

On November 29, 2001, the Panelist issued an Interim Administrative Panel Order in which it requested the Center to invite Respondent to submit a Response in the English language, indicating that the e-mail submitted in the Polish language cannot be accepted as a Response since it is not the language of the proceedings. The Interim Administrative Panel Order allowed Respondent to submit a Response in the English language before December 19, 2001.

On January 8, 2002, the WIPO Center informed the Panel that no Response had been received from Respondent.

 

4. Applicable Rules

Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:

(i) the domain name in issue is identical or confusingly similar to Complainant's trademark, and

(ii) the Respondent has no rights or legitimate interest in respect of the domain name, and

(iii) the domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the Policy sets out, by way of example, four circumstances, each of which, if proven, shall be evidence of the registration and use of the domain name in bad faith for the purpose of Paragraph 4(a)(iii) above.

Paragraph 4(c) of the Policy sets out, by way of example, three circumstances, each of which, if proven by Respondent, shall demonstrate Respondentís rights or legitimate interest to the domain name for the purpose of Paragraph 4(a)(ii) above.

 

5. Parties Contentions

Complainant has submitted a very brief Complaint in which it states that Commercial Union is a trading name of CGNU Plc in Eastern Europe and elsewhere and that Commercial Union is a registered trademark of CGNU Plc.

Complainant furthermore states that Respondent has no rights or legitimate interest in respect of the domain name and that the domain name is confusingly similar to the registered trademark, which is a registered trademark of CGNU Plc.

Complainant also states that the domain name was registered and is being used in bad faith as is evident by an e-mail received from Respondent on August 22, 2001, in which Respondent offered the domain name <commercial-union.com> for sale to Complainant.

As Respondent has not submitted a Response, Complainantís contentions are not contested.

 

6. Due Process

Where, as in this case, Respondent does not submit a Response, the rules of due process require the Panel to verify, to the extent possible, that Respondent is aware of the present proceedings. The Panel is satisfied, on the basis of the file documentation, that this is the case. Respondent has sent an e-mail in the Polish language to the WIPO Center, after receiving the Complaint. Since the WIPO Center has, in addition to other communications both by mail and by e-mail, used this e-mail address of Respondent for all communications in this case, the Panel assumes that Respondent has chosen not to respond.

 

7. Discussion

Complainant must provide evidence of all elements of Paragraph 4(a) of the Policy. As the decision to transfer or cancel a domain name may have serious consequences for the domain name holder, the evidence should be sufficient in all respects to support such a decision. The absence of a Response from Respondent, as in this case, does not discharge the Panel from its duty to establish that the evidence is sufficient.

In this case the Panel finds that the evidence provided by Complainant is insufficient in all three points Complainant must prove under the UDRP. The panel therefore dismisses the Complaint.

Complainant has stated that Commercial Union is a trading name of Complainant. However, no evidence thereof has been provided. Moreover, the Panel notes that Complainantís name CGNU Plc is not confusingly similar to the domain name <commercial-union.com>. Furthermore, Complainant submits to be the owner of the registered trademark Commercial Union. The Complainant has however not provided any evidence of these trademark rights. From article 4(a) of the UDRP it follows that the Complainant must prove its trademark rights. In view of this article and of the earlier case, WIPO Case No. D2000-1529 <commercialunion.net>, in which CGNU Plc also was the Complainant (against a Turkish Respondent), Complainant must have been aware that it has to provide evidence of its trademark rights, but apparently chose not to do so.

Complainant has stated that Respondent has no rights or legitimate interest in respect of the domain name. Complainant has however not substantiated this statement with any arguments or factual statements.

Complainant has stated that the domain name <commercial-union.com> was registered and is being used in bad faith. In this context, Complainant refers to an e-mail received on August 22, 2001, with the text "I have a domain name <commercial-union.com>, so now I must sell it, if you want buy this domain, please contact with me." The undersigned is Radoslaw Wal. According to the WHOIS, Mr. Wal is the administrative, technical and billing contact for the domain name in question. By this reference Complainant apparently wishes to rely on article 4b(i) UDRP which provides: that "circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark of service mark or to o competitor of that Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name" shall be evidence of the registration and use of a domain name in bad faith.

This e-mail does not sufficiently demonstrate the bad faith of Respondent. Apart from the fact that it is not clear that it relates to a sale of more than out-of-pocket costs to the domain name, Complainant has not provided any other information from which the Panel might conclude that the domain name was registered and is being used in bad faith. Therefore Complainant has also not met its burden of proof on this aspect of the UDRP.

 

8. The Decision

On the basis of the foregoing, the Panel decides that Complainant has failed to provide the required evidence to request a transfer of the domain name <commercial-union.com> from Respondent to Complainant. Accordingly, the Panel denies the request to transfer the domain name <commercial-union.com> to Complainant.

 


 

Wolter Wefers Bettink
Sole Panelist

Dated: January 14, 2002