WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
MXM v. Mixed Media, Inc.
Case No. DBIZ2002-00110
1. The Parties
The Complainant is MXM S.A., with offices at 2720, Chemin de Saint-Bernard, 06224 Vallauris, France, represented by its general manager, Paul Martel.
The Respondent is Mixed Media, Inc., P.O. Box 191, Oita, 8708691, Japan.
2. Domain Name and Registrar
The domain name at issue is <mxm.biz>(the Domain Name), registered on March 27, 2002, with DomainPeople, Inc., Vancouver, Canada.
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received Complainantís complaint on April 26, 2002, (electronic version) and April 30, 2002 (hard copy). The Center verified that the complaint satisfies the formal requirements of the Start-up Trademark Opposition Policy for .BIZ (the STOP), the Rules for Start-up Trademark Opposition Policy (the STOP Rules), and the Supplemental Rules for Start-up Trademark Opposition Policy for .BIZ (the WIPO Supplemental STOP Rules). The formal date of the commencement of this administrative proceeding is May 7, 2002.
Having verified that the complaint satisfied the formal requirements of the STOP and the STOP Rules, the Center transmitted on May 7, 2002, to the Notification of Complaint and Commencement of the Administrative Proceeding, by post and by e-mail.
The Center advised that the response was due by May 27, 2002. However, Respondent did not file any response and consequently the Center issued a Notification of Respondent Default on May 29, 2002.
On June 4, 2002, the Center invited Mr. Geert Glas to serve as a panelist. Having received Mr. Geert Glasí Statement of Acceptance and Declaration of Impartiality and Independence on June 5, 2002, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Geert Glas was formally appointed as the Sole Panelist, on June 6, 2002. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the STOP Rules and WIPO Supplemental STOP Rules.
The Administrative Panel shall issue its Decision based on the complaint, the evidence presented, the STOP, the STOP Rules and the WIPO Supplemental STOP Rules.
4. Factual Background
Complainant invokes several trademark registrations and applications in various countries for the trademark "MXM". Copies of trademark registrations are attached to the complaint. These are:
- the French mark, filed on February 20, 2001, for the device mark "MXM", for goods of the classes 5, 9 and 10. This trademark is registered in the name of Complainant;
- the French mark with registration number 960268, filed on July 16, 1976, for the word mark "MXM", for goods of the classes 9 and 10. This trademark is registered in the name of Mr. Guy Charvin who, according to Complainant, is the founder of Complainant and president of its board ever since its creation;
- the French mark with registration number 1601562, filed on March 15, 1990, for the word mark "MXM", for goods of the classes 9 and 10. This trademark is also registered in the name of Mr. Guy Charvin;
- the French mark with registration number 1583923, filed on March 22, 1990, for the word mark "MXM", for goods of class 5. This trademark is also registered in the name of Mr. Guy Charvin;
It appears from the file that Complainant did not contact Respondent prior to filing its complaint.
There is no relation between Respondent and Complainant, and Respondent is not a licensee of Complainant, nor has Respondent otherwise obtained an authorization to use Complainantís trademarks.
The Domain Name does not resolve to any web page.
5. Partiesí Contentions
According to Complainant, it is in the business of developing and selling medical devices since its creation in 1977.
Complainant has used the name MXM intensively and continuously to promote and market its activities and products. All its technical or commercial brochures always contain references to this name.
Complainant contends that the Domain Name registered by Respondent is identical to Complainant's trademark.
Complainant requires the transfer of the Domain Name registration.
Respondent did not submit any response.
6. Discussion and Findings
Paragraph 15(a) of the STOP Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the STOP, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the STOP directs that Complainant must prove each of the following:
(1) that the Domain Name registered by Respondent is identical to the trademark or service mark in which the Complainant has rights; and,
(2) that Respondent has no rights or legitimate interests in respect of the Domain Name; and,
(3) that the Domain Name has been registered or is being used in bad faith.
The Domain Name is <mxm.biz>.
"MXM" is a registered trademark of Complainant.
In view of the above, the Administrative Panel finds that the Domain Name is identical to the trademark of Complainant.
b. Rights or Legitimate Interests
The Administrative Panel is somewhat at a loss to assess the absence of rights or legitimate interests in the Domain Name. In view of the difficulty to prove such negative fact, UDRP decisions have often rightly considered this burden of proof satisfied when Complainant could credibly state, taken into account all the facts of the case, that he was unaware of any element or circumstance which could be indicative of such right or legitimate interest. In this case however, Complainant does not even invoke any element or circumstance which would be indicative of the absence of such rights or legitimate interests.
It can be said that by not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to paragraph 4(c) of the STOP, any rights or legitimate interests in the Domain Name.
However, Respondent's failure to submit a response cannot, in the absence of any other fact, indication or circumstance, justify a finding that Complainant would have proven that Respondent has no rights or legitimate interests in respect of the Domain Name.
c. Registration or Use in Bad Faith
Complainant does not allege, even implicitly, that Respondent registered or used the Domain Name in bad faith and does not bring forward any illustration, evidence or even circumstance to sustain this point.
Under these circumstances, the Panel is not in a position to find that Respondent registered or used the Domain Name in bad faith.
In light of the foregoing, the Administrative Panel decides that the Domain Name <mxm.biz> registered by Respondent is identical to the trademark of Complainant. However, the Administrative Panel finds that it is not sufficiently proven that Respondent has no right or legitimate interest in respect of the Domain Name, nor that Respondent may have registered or used the Domain Name in bad faith.
Accordingly, pursuant to Paragraph 4(i) of the STOP, the Administrative Panel denies Complainant's request for transfer.
Dated: June 20, 2002