WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Constructor Dexion v. Legal Services
Case No. DBIZ2002- 00099
1. The Parties
The Complainant in these Administrative Proceedings is Constructor Dexion having an address at Marylands Avenue, Hemel Hempstead, Hertfordshire, HP2 7DF, United Kingdom.
The Respondent is Legal Services having an address at 2201 Fern Street, 2C Apartment A, New Orleans, Louisiana, 70118, United States of America.
2. The Domain Name and Registrar
The domain name in dispute is <constructor.biz>.
The Registrar with which said domain name is registered is Intercosmos Media Group d/b/a directNIC.com (hereinafter "the Registrar").
3. Procedural History
On April 26, 2002, the Complaint was received by the WIPO Arbitration and Mediation Center ("the Center") by e-mail and in hard copy on April 30, 2002.
In accordance with Paragraph 4(a) of the Rules for Start-up Trademark Opposition Policy for .BIZ ("the STOP Rules") the Center verified that the Complaint satisfied the formal requirements of the Start-up Trademark Opposition Policy for .BIZ ("the STOP Policy"), the STOP Rules and the WIPO Supplemental STOP Rules and that payment in the required amount had been paid by the Complainant.
On May 7, 2002, the Center sent a Notification of STOP Complaint and Commencement of Administrative Proceeding to the Respondent by post/courier (with enclosures) and by e-mail (Complaint without attachments). A copy of said Notification was sent to the authorized representative of the Complainant by e-mail. Further copies of said Notification were sent to the Internet Corporation for Assigned Names and Numbers ("ICANN") and to the Registrar by e-mail.
Said Notification of Complaint and Commencement of Administrative Proceeding inter alia advised the Respondent that this Administrative Proceeding had commenced on May 7, 2002, and that the Respondent was required to submit a Response to the Center on or before May 27, 2002.
No Response was received by the Center and on May 29, 2002, the Center sent a Notification of Respondent Default to the Respondent by post/courier and by e-mail. A copy of said Notification of Respondent Default was on the same date sent to the authorized representative of the Complainant by e-mail.
On May 29, 2002, there followed an exchange of e-mail correspondence between a Mr. Sigmund Solares and the Center. Mr. Solares complained that the documentation sent by the Center to the Respondent was incorrect and that there was an incorrect deadline set for the Response. The Center checked the documentation sent and confirmed that both the documentation and the deadline for filing the Response were in fact correct and complied with the STOP Policy, the Stop Rules and WIPO Supplemental STOP Rules.
On June 6, 2002, after having received a Statement of Acceptance and Declaration of Impartiality from him in accordance with paragraph 7 of the Rules, the Center proceeded to appoint James Bridgeman as the Administrative Panel. On the same day the case file was transmitted to the Administrative Panel.
In the view of the Administrative Panel, proper procedures were followed and this Administrative Panel was properly constituted.
4. Factual Background
The Complainant claims to be the owner of Benelux Trademark Registration number 463888 for CONSTRUCTOR in international classes 6,7 and 20.
There is no information about the Respondent except the address and contact details as found on the Registrarís records set out in the Complaint.
5. Partiesí Contentions
The Complainant submits that this dispute is properly within the scope of the STOP Policy and that the Respondent is required to submit to these Administrative Proceedings in accordance with paragraph 4(a) of the STOP Policy on the grounds that
(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 the domain name; and
(iii) the Domain name was registered or is being used in bad faith.
The Complainant claims to be the registered owner of the above Benelux Registered Trademark.. The Complainant also claims to be a market leading supplier of shelving and racking systems carrying the name CONSTRUCTOR.
The Complainant submits that the said domain name <constructor.biz> featuring the word "constructor" is identical to the Complainantís said registered trade mark.
The Complainant alleges that the Respondent has no legitimate trademark rights in the name CONSTRUCTOR. A search of the US trade mark database did not reveal any trade mark rights in the name of the Respondent. The Complainant also submits that a search of the Respondentís www site does not reveal any use of the name which could give rise to common law rights.
The Complainant finally submits that the Respondent is also the proprietor of another domain name <homeville.com> which is a hard core porn site and submits that such sites are renowned for diverting internet traffic from other sites. The Complainant further submits that the Respondentís www site at <homeville.com> has links to and is connected to various other pornographic sites including some which feature graphic images of bestiality. The Complainant submitted a print out of a page from such a site with the Complaint.
There was no Response filed by the Respondent.
6. Discussion and Findings
As a preliminary point relating to the exchange of e-mail correspondence on May 29, 2002, between Mr. Sigmund Solares and the Center, Mr. Solares connection with the Respondent is not clear and there is no evidence that he has been authorized by the Respondent to make any representations. Nonetheless and without prejudice to the question of Mr. Sigmund Solaresí locus standi in these Administrative Proceedings, this Administrative Panel has considered the Case File and is satisfied that the documentation sent to the Respondent and the deadline set by the Center for filing the Response were in fact correct and complied with the STOP Policy, the Stop Rules and WIPO Supplemental STOP Rules. Mr. Sigmund Solares was incorrect in suggesting otherwise in his e-mails of May 29, 2002, referred to above.
In the light of the finding on the issue of bad faith, infra, this Administrative Panel has found it unnecessary to consider whether the Respondent should be given the opportunity to file a late Response.
In accordance with paragraph 4(a) of the STOP Policy, the Complainant must prove that:
(i) the domain name in dispute 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 the domain name; and
(iii) the domain name has been registered or is being used in bad faith.
While the Complainant submits that it is the owner of Benelux Trademark No 463888 for CONSTRUCTOR in international classes 6,7 and 20, but has not provided any evidence of its ownership of this registration. At paragraph 21 of the Complaint, the Complainant has however made the standard certification that the information contained in the Complaint is, to the best of the Complainantís knowledge, complete and accurate.
For the purposes of these Administrative Proceedings and in particular in the light of this Administrative Panelís decision in relation to the issue of bad faith below, this Administrative Panel is willing to accept that the Complainant has rights in the CONSTRUCTOR trademark.
It is clear that the said domain name is identical to the CONSTRUCTOR trademark.
Rights or Legitimate Interests
As to whether the Respondent has any rights or legitimate interest in the said domain name, the Complainant alleges that the Respondent has no legitimate trademark rights in the name CONSTRUCTOR. The Complainant has also alleged that a search of the US trade mark database did not reveal any trademark rights in the name of the Respondent. Furthermore the Complainant has submitted that a search of the Respondentís www site does not reveal any use of the name which could give rise to common law rights.
The Respondent has not provided this Administrative Panel with any evidence of these searches or any print-outs of the content of the Respondentís site.
In a number of decisions under the UDRP, panelists have accepted that because there is a difficulty in proving a negative, once the Complainant makes the allegation that the Respondent has no rights or legitimate interest in a domain name the onus of proof on that element of the test shifts to the Respondent. This Administrative Panel is willing to take the same approach under the STOP Policy and to find that the Respondent has satisfied the second element in the test in paragraph 4(a) of the STOP Policy.
Paragraph 4(b) of the STOP Policy sets out the following examples of circumstances that will be considered by an Administrative Panel to be evidence of the bad faith registration and use of a domain name viz. circumstances indicating :
(i) that the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondentís out-of-pocket costs directly related to the domain name; or
(ii) that the Respondent registered the domain name in order to prevent the Complainant from reflecting the mark in a corresponding domain name; or
(iii) the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent intentionally attempted to attract for financial gain, Internet users to the Respondentís web site or other on-line location, by creating a likelihood of confusion with the Complainantís mark as to the source, sponsorship, affiliation, or endorsement of the Respondentís web site or location or of a product or service on the Respondentís web site or location.
The Complainant alleges that the Respondent is the owner of another domain name <homeville.com> which it claims resolves to a hard core pornographic site that has links to and is connected to various other pornographic sites including some which feature graphic images of bestiality. The Complainant submits that such sites are renowned for diverting Internet traffic from other sites. The Complainant has submitted a print out of a page of a pornographic site, but there is nothing on that page to indicate any connection whatsoever with the Respondent, the <constructor.biz> domain name, the Complainants trademark or even the <homeville.com> domain name.
There is no evidence that the Respondent has been using the <constructor.biz> domain name in connection with any pornographic site.
In the view of this Administrative Panel, the Complainant has not provided any evidence whatsoever that the domain name has been registered or is being used in bad faith and has therefore failed to establish the third element in the test set out in paragraph 4(a) of the STOP Policy.
This Administrative Panel finds that the Complainant has failed to establish that the Respondent registered or is using the <constructor.biz> in bad faith and the Complainantís application must therefore be refused.
Dated: June 19, 2002