WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AUDI Aktiengesellschaft v. Moreira
Case No. DBIZ2002-00049
1. The Parties
Complainant is AUDI Aktiengesellschaft, represented by HK2 Rechtsanwälte, Philip Koch, Karlplatz 7, 10117 Berlin, Germany, hereinafter the "Complainant".
Respondent is Moreira, P.O. Box 590643, Miami, Florida 33159, United States of America, hereinafter the "Respondent".
2. Domain Name and Registrar
The domain name in dispute is <nsu.biz>, hereinafter the Domain Name.
The registrar for the disputed domain name is Dotster Inc., N.E. 99th St. 117807, Vancouver, Washington 98682, United States of America.
3. Procedural History
The essential procedural history of the administrative proceeding is as follows:
(a) Complainant initiated the proceeding by the filing of a Complaint, received by the WIPO Arbitration and Mediation Center ("WIPO") on April 25, 2002, and resending of the Complaint on May 22, 2002. On April 25, 2002, WIPO sent an Acknowledgement of Receipt of the Complaint to the Complainant.
(b) On June 13, 2002, WIPO transmitted Notification of the Complaint and Commencement of the Administrative Proceeding to the Respondent, after having satisfied itself that the Complainant had complied with all formal requirements pursuant to the Start-up Trademark Opposition Policy for .BIZ ("STOP") adopted by NeuLevel Inc. and approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") on May 11, 2001, the Rules for Start-up Trademark Opposition Policy (the "STOP Rules") and the WIPO Supplemental Rules for Start-up Trademark Opposition Policy for .BIZ (the "WIPO Supplemental STOP Rules").
(c) No Response has been submitted by the Respondent. Accordingly, WIPO issued a Notification of Respondent Default on June 26, 2002.
(d) WIPO invited Mr. Peter Nitter to serve as a panelist. Having received his Statement of Acceptance and Declaration of Impartiality and Independence, WIPO formally appointed him as Panelist. The Parties were informed about the appointment on July 16, 2002.
(e) The Administrative Panel finds that it is properly constituted and appointed in accordance with the STOP and the STOP Supplemental Rules, and shall issue its Decision based on the STOP, the STOP Rules and the WIPO Supplemental STOP Rules. The proceedings have been conducted in English.
4. Factual Background
Complainant is a German company manufacturing cars. Complainant is the holder of trademark registrations for the trademark NSU.
Respondent has registered the domain name <nsu.biz>.
5. Partiesí Contentions
The Complainant asserts that:
With the exception of the Top Level Domain "biz", the Domain Name is identical to the trademark NSU in which the Complainant has rights.
The Respondent should be considered as having no rights or legitimate interests in the Domain Name because:
(1) There is no relationship between the Complainant and the Respondent, the Respondent is not a licensee of the Complainant, and no other permission or consent has been granted to the Respondent to use the NSU mark or to apply for any domain name incorporating this mark.
(2) The Respondent is not commonly known by the Domain Name, especially his name does not contain the string "NSU".
(3) The Respondent does not seem to be owner of a trademark "NSU".
(4) The Respondent did not use or prepare to use the Domain Name or a name corresponding to the Domain Name in connection with bona fide offering of goods. Its registration of the Domain Name includes an intentional infringement of the Complainantís rights.
(5) Respondent seems to be acting privately. By holding a .biz domain for private purposes, the Respondent infringes the .biz Registration Restrictions.
The Domain Name should be considered registered in bad faith because:
(1) The Domain Name indicates no reference to the Respondent.
(2) The registration despite the IP Claim and the famous trademark of the Complainant indicates that the Respondent primarily registered the Domain Name for the purpose of selling, renting or otherwise transferring the name registration to the Complainant or a competitor of him. This fact also indicates that the registration was made in order to prevent the Complainant form reflecting his mark in a corresponding domain name.
The Complainant requests the Administrative Panel to issue a decision that the contested Domain Name be transferred to the Complainant.
The Respondent has not submitted a response, and is thus in default. Respondent has neither made any submissions after the Notification of Respondent Default.
6. Discussion and Findings
Paragraph 4(a) of the STOP sets out the three circumstances which the Complainant must prove in order to succeed with the administrative proceeding:
i. the domain name is identical to a trademark or service mark in which the complainant has rights; and
ii. the respondent has no rights or legitimate interests in respect of such domain name; and
iii. the domain name has been registered in bad faith or is being used in bad faith.
6.1 Identity to a trademark or service mark in which the Complainant has rights
Based on the evidence, the Panel finds that the Complainant has rights to the trademark NSU.
The domain name at issue is <nsu.biz>.
The Panel considers that the suffix .biz does not influence on the consideration of similarity, and so the Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights.
6.2 Rights or legitimate interests in the Domain Name
The Panel has considered the allegations by the Complainant as to the lack of rights or legitimate interests of the Respondent in respect of the Domain Name.
There is no relationship between the Complainant and the Respondent. The Complainant has not licensed Respondent to use their trademark, and no other permission or consent has been granted to the Respondent to use the Complainantís trademark or to apply for any domain name incorporating this mark.
There is nothing to suggest that Respondent has been commonly known by the Domain Name.
The Panel bases this discussion on the Complainantís assertion that Respondent has not used or made any preparations to use the Domain Name in connection with a bona fide offering of goods or services.
Based on the above, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name.
6.3 Registration or use in bad faith
The Panel has considered Complainantís allegations and evidence with regard to the Respondentís registration of the Domain Name in bad faith.
Complainant has put forward evidence that his trademarks are well known. In addition, the Respondent was informed of the Complainantís alleged trademark rights when registering the Domain Name. The Panel finds that Respondent when registering the Domain Name knew the trademarks of the Complainant.
The Panel does not agree that the mere registration of the Domain Name is evidence that Respondent registered the Domain Name for the purpose of selling, renting or otherwise transferring it to the Complainant or a competitor of the Complainant.
However, as the Respondent continued the registration of the Domain Name in spite of his knowledge of the Complainantís rights, this can be considered to be an attempt to prevent the Complainant from reflecting its mark in a corresponding domain name as well as for the purpose of disrupting the business of a competitor.
By not submitting a response, Respondent has failed to invoke any circumstances that could demonstrate that it did not register the Domain Name in bad faith.
Based on the above discussion, the Panel finds that the Respondent has registered the Domain Name in bad faith.
The Panel has found that the Domain Name <nsu.biz> is identical to a trademark in which the Complainant has rights, and that the Respondent has no rights or legitimate interests in the Domain Name. The Panel further finds that the Domain Name has been registered in bad faith.
Accordingly, pursuant to Paragraph 4(i) of STOP and Paragraph 15 of the STOP Rules the Panel decides that the Domain Name <nsu.biz> be transferred to the Complainant.
Peter G. Nitter
Dated: July 30, 2002