WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Pelle Pelle, Inc. v. Mr. Igor Nikolenko
Case No. D2002-1002
1. The Parties
Complainant is Pelle Pelle, Inc. ("Complainant") of the United States of America. Respondent is Mr. Igor Nikolenko ("Respondent") of Odessa, Ukraine.
2. The Domain Name and Registrar
The domain name the subject of this Complaint is <pellepelle.com>.
The Registrar is BulkRegister.com. The remedy sought by Complainant is transfer of the domain name <pellepelle.com> to Complainant.
3. Procedural History
On October 31, 2002, (by e-mail) and November 5, 2002 (in hard copy), Complainant submitted to the WIPO Arbitration and Mediation Center (the "Center") a Complaint under the Uniform Domain Name Dispute Resolution Policy (the "Policy") and the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"). The Panel agrees that payment was properly made, that the Center rightly assessed the Complaintís compliance with the formal requirements; that Complaint was properly notified in accordance with paragraph 2 (a) of the Rules. Respondent was declared in default. The Panel agrees that it was properly constituted and that Panelist submitted a Statement of Acceptance and Declaration of Impartiality. The Panel also acknowledges that no other proceedings are pending before any Justice Court.
4. Factual Background
Complainant is the owner of the trademark PELLE PELLE, registered in several countries of the world for leather goods and other fashion products.
Respondent, Mr. Igor Nikolenko of Odessa (Ukraine) registered the domain name <pellepelle.com>. The registration of the domain name <pellepelle.com>, occurred, without dispute, well after trademark rights from the name PELLE PELLE were acquired by Complainant, and has no known connection with any activity or trade carried out under the trade name or trademark PELLE PELLE. There is no Web site operating at <pellepelle.com> as of December 6, 2002, although Complainant claims that it was in the past "used as a conduit to bring Internet users to a site known as coolhits.com".
5. Partiesí Contentions
a. Complainant claims that it is owner of the well-known and largely used PELLE PELLE trademark for leather goods and other fashion products.
b. Complainant claims that the domain name <pellepelle.com> has been registered by Respondent in bad faith. Respondent could not ignore Complainantís trademark rights, nor has Respondent any rights or legitimate interests in respect of the domain name.
c. Complainant claims that the domain name <pellepelle.com> has been, or is being used by Respondent in bad faith as a conduit to bring Internet users to the site "coolhits.com".
a. Respondent is in default and, accordingly, has not challenged the conclusions of Complainant.
6. Discussion and Findings
A. General Principles
Under paragraph 4 (a) of the Policy, the Panel should be satisfied that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the domain name;
(iii) the domain name has been registered in bad faith;
(iv) the domain name is being used in bad faith.
B. Confusion with Complainantís Trademark
The Panel finds that Complainant has established that it is the owner of the trademark PELLE PELLE for leather goods and other fashion products. The validity of its trademarks is beyond dispute. Respondentís domain name is identical to Complainantís Trademark.
C. Respondentís Absence of Rights or Legitimate Interests in the Domain Name
There is no evidence that Respondent has any right or legitimate interest whatsoever in respect of a domain name including the well-known trademark PELLE PELLE, or any association between the trademark PELLE PELLE and its activity. There is no evidence that Respondent intends to use the domain name through any fair or legitimate use. On this point also, Complainant prevails.
D. Registration in Bad Faith
The trademark PELLE PELLE is well-known enough that it is presumable that Respondent knew it when registering the domain name (see Banca Sella S.p.A. v. Mr. Paolo Parente, WIPO Case No. D2000-1157; Expedia, Inc. v. European Travel Network, WIPO Case No. D2000-0137). No argument has been submitted by the defaulting Respondent in order to counter these findings.
The Panel concludes that the domain name has been registered in bad faith.
E. Use in Bad Faith
Complainant states that the domain name is being used in bad faith "as a conduit to bring Internet users to a site known as coolhits.com", resulting in "instances of actual confusion". No evidence of this was offered, however, and on December 6, 2002, the Panel found that an URL "http://www.pellepelle.com" could not be retrieved. The Complainant does not mention any other argument about "use in bad faith". As such, the Panel may conclude that Complainant has not proved that the domain name is used in bad faith pursuant to the Policy. This Panel, however, believes that the poor drafting of a Complaint should not deprive a Complainant of substantial justice, when arguments not explicitly mentioned in the Complaint both are somewhat obvious and may be inferred from the global structure of the Complaint. It is clear that, even if he never used or ceased to use the domain name as a conduit to another Web site, Mr. Nikolenko is at least in a position of "passive holding". "Passive holding" has been recognised as sufficient in a number of cases (Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Ingersoll-Rand Co. v. Frank Gully, d/b/a Advcomren, WIPO Case No. D2000-0021; Compaq Computer Corporation v. Boris Beric, WIPO Case No. D2000-0042; InfoSpace.com, Inc. v. Tenenbaum Ofer, WIPO Case No. D2000-0075; Association of British Travel Agents Ltd. .v. Sterling Hotel Group Ltd., WIPO Case No. D2000-0086; Marconi Data Systems, Inc. v. IRG Coins and Ink Source, Inc., WIPO Case No. D2000-0090; Sanrio Company, Ltd. and Sanrio, Inc. v. Neric Lau, WIPO Case No. D2000-0172; J. García Carrión, S.A. v. M™ José Catalán Frías, WIPO Case No. D2000-0239; Advanced Micro Devices, Inc. v. [No Name], WIPO Case No. D2000-0515; Teledesic LLC v. McDougal Design, WIPO Case No. D2000-0620; Clinica Corachan, S.A. v. Fc Team Car, S.L., WIPO Case No. D2000-0723; Red Bull GmbH v. Harold Gutch, WIPO Case No. D2000-0766). This Panel sees no reason to challenge this prevailing opinion. Respondent, by remaining in default, has not offered any counter-argument.
The Panel concludes that the domain name <pellepelle.com> is used by Respondent, although probably through passive holding only, and is used in bad faith.
Pursuant to Paragraph 4(i) of the Policy and Rule 15 of the Uniform Rules, this Panel orders that the domain name <pellepelle.com> be transferred to Complainant.
Dr. Massimo Introvigne
Dated: December 6, 2002