WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
HBO Einkauf und Marketing GmbH & Co v. Motec Personnel Services Pty
Case No. DBIZ2001-00053
1. The Parties
The Complainant is HBO EINKAUF UND MARKETING GMBH & CO., a company organised under the laws of Germany, having its principal place of business at Oldenburg, (Dietrichsweg 64, D-26127), Germany ("the Complainant").
The Respondent is MOTEC PERSONNEL SERVICES PTY, a company organised under the laws of Australia, having its principal place of business at St. Kilda (Level 1, 222 St. Kilda Road, 3182 Victoria), Australia ("the Respondent").
2. The Domain Name and Registrar
The domain name at issue is <motec.biz>.
The Registrar is Network Solutions Inc. ("the Registrar").
3. Procedural History
The complaint was submitted for decision in accordance with the Start-up Trademark Opposition Policy for .biz (the "STOP"), the Rules for Start-up Trademark Opposition Policy for .biz, (the "STOP Rules"), adopted by NeuLevel Inc. and approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") on May 11, 2001, and the WIPO Supplemental Rules for Start-up Trademark Opposition Policy for .biz (the "WIPO Supplemental STOP Rules").
The complaint was received by email by the WIPO Arbitration and Mediation Center (the "Center") on December 19, 2001. A hardcopy version of the complaint dated December 14, 2001, was received by the Center on December 18, 2001.
On December 20, 2001, the Center sent a Notification of the STOP Complaint and Commencement of Administrative Proceedings to Respondent, setting a deadline of January 8, 2002, by which Respondent could submit a response to the complaint.
On January 28, 2002, the Center sent a Notification of Respondent Default to Respondent.
On February 28, 2002, the Center sent a Notification of Appointment of Administrative Panel and Projected Decision Date by email to the parties, in which Wolter Wefers Bettink was appointed as Sole Panelist.
4. Factual Background
Complainant has filed an intellectual property claim ("IP Claim") pursuant to the instructions and the format provided by NeuLevel.
On November 19, 2001, Respondent registered the domain name <motec.biz>.
On November 19, 2001, NeuLevel notified Complainant that Respondent had registered the domain name <motec.biz> and informed Complainant that it was entitled to commence a STOP complaint against Respondent.
On December 14, 2001, Complainant filed the complaint pursuant to the STOP.
5. Partiesí Contentions
The Complainant states it is acting for MOTEC Motorgeräte Vertrieb GmbH & Co KG.
MOTEC Motorgeräte Vertrieb GmbH & Co KG is the owner of the European Community trademark MOTEC, number 000167296, registered in class 7 (among others mechanical, agricultural and horticultural equipment and apparatus).
Respondent has no national or international trademark for MOTEC.
Respondent has registered the domain name <motec.biz> in order to prevent MOTEC Motorgeräte Vertrieb GmbH & Co KG, as the owner of the a.m. trademarks from reflecting the marks in a corresponding domain name.
As Respondent has not submitted a Response to the Center, Complainantís contentions are uncontested.
6. Due Process
Where, as in this case, a Respondent does not submit a response and the file does not contain any communication from Respondent, 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 documents that this is the case.
A hard copy of the complaint was sent by the Center to Respondentís address as mentioned under 1 above, by courier and by email. The Center has discharged its responsibility under paragraph 4(a) of the STOP Rules to notify the complaint.
7. Discussion and Findings
Under the STOP, a complaint can only be filed by an "IP claimant" who had filed an IP claim for a particular alpha-numeric string. If that string becomes registered as a .biz domain name, NeuLevel notifies the IP claimant and invites it to initiate a STOP proceeding within 20 days. The Panel has been informed by the Center that this period has been extended to 25 days. NeuLevel determines priority if there are multiple claimants on a random basis. Only the priority claimant will be invited to initiate a STOP complaint, which is allocated a ticket number which allows dispute resolution providers to verify whether a STOP complaint is filed by the priority complainant. The service provider (in this case the Center) is required to advise the Panelist if a disputed domain name is subject to more than one claim. In the present case, no such advice has been given to the Panelist.
Complainant must under the STOP show and provide evidence that:
(a) the domain name is identical to Complainantís trademark or service mark (Paragraph 4a (i));
(b) Respondent has no rights or legitimate interests in the domain name (Paragraph 4a (ii));
(c) the domain name was either registered or used in bad faith (Paragraph 4a (iii)).
Since the decision to transfer a domain name may have serious consequences for the domain name holder, the evidence should be sufficient in all aspects 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.
(a) Trademark rights
Complainant is HBO Einkauf und Marketing GmbH & Co. Complainant is relying on the trademark rights of MOTEC Motorgeräte Vertrieb GmbH & Co KG in the European Community trademark Motec and states that it is acting for this company. Complainant has, however, not provided any evidence that it is entitled to invoke the trademark rights of MOTEC Motorgeräte Vertrieb GmbH & Co KG, nor a Power of Attorney authorising Complainant to act in these proceedings on behalf of said trademark owner. In view of the considerations below, it is not necessary to allow Complainant to remedy this.
(b) Rights or legitimate interests
It is doubtful whether Complainant has proven that Respondent has no rights or legitimate interests in the domain name <motec.biz>. Complainant has stated that Respondent has no national or international trademark for MOTEC, but has not provided evidence thereof. On the other hand, the Panel has found that, while "Motec" is a part of Respondentís name, it cannot be found on the worldwide web through a Google search, a company under another name (Robotron Pty) is located at the address 222 St. Kilda Road in St. Kilda, Victoria, Australia. In view of the considerations below, it is not necessary to conclude for the second criterion.
(c) Bad faith
In any case, since Complainant has not provided evidence that Respondentís use of the domain name is in bad faith within the meaning of the STOP the complaint should be denied. Complainant has presented no meritorious argument and submitted no evidence in support of its contention that Respondent has registered the domain name in order to prevent MOTEC Motorgeräte Vertrieb GmbH & Co KG to register the domain name <motec.biz>. Complainant has failed to come forward with evidence to explain why an Australian company should have heard of, let alone intended to target a German company dealing in mechanical, agricultural and horticultural equipment.
Moreover, Complainant has failed to provide any other evidence which may indicate bad faith on the Respondentís side.
On the basis of the foregoing, the Panel decides that the complaint should be denied.
Wolter Wefers Bettink
Dated: March 14, 2002