WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
EOS GmbH Electro Optical Systems v. News America Incorporated
Case No. DBIZ2002-00238
1. The Parties
The Complainant is EOS GmbH Electro Optical Systems, of Pasinger Str. 2, 82152 Planegg, Federal Republic of Germany.
The Respondent is News America Incorporated, of 1211 Avenue of the Americas, 4th floor, New York, New York, 10036, United States of America.
2. The Domain Name and Registrar
The contested domain name is <eos.biz>.
The registrar is Corporate Domains, Inc.
3. Procedural History
The electronic version of the Complaint was filed on May 17, 2002. The hardcopy of the Complaint was received on May 27, 2002.
In accordance with Paragraph 4(a) of the STOP Rules, the Center verified that the Complaint satisfies the formal requirements of the STOP Policy, the STOP Rules and the WIPO Supplemental STOP Rules.
Payment in the required amount was received by the WIPO Arbitration and Mediation Center ("the Center").
On May 28, 2002, the Center formally notified the Respondent by courier, fax and email of the Complaint and of the commencement of this administrative proceeding and sent copies to the Complainant, the Registrar and ICANN.
The Respondent failed to file a Response. On June 19, 2002, the Center sent a Notification of Respondent Default by email and fax to the Respondent and copied to the Complainant.
On June 25, 2002, the Center contacted John Swinson and requested that he act as panelist in this case. Mr. Swinson accepted to act as panelist in this case and submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
On June 28, 2002, the parties were notified that Mr. Swinson had been appointed and that a decision was to be, save exceptional circumstances, handed down on July 12, 2002.
The language of the proceeding was English.
The Panel is satisfied that the Complaint was filed in accordance with the requirements of the STOP Rules and the WIPO Supplemental STOP Rules; payment was properly made; the Panel agrees with the Centerís assessment concerning the Complaintís compliance with the formal requirements; the Complaint was properly notified to the Respondent in accordance with paragraph 2(a) of the STOP Rules; no Response was filed; and the administrative Panel was properly constituted.
4. Factual Background
The Complainant is the owner of a German trademark registration for "EOS".
The Respondent has registered the domain name <eos.biz>.
5. Partiesí Contentions
The entire "factual and legal grounds" section of the Complainantís submissions is as follows:
"Complainant is owner of several trademarks "EOS", with or without combinations with other words, e.g. "EOSINT", worldwide. A copy of complainantís valid German trademark registration No. 2 075 778 "EOS" is attached as Annex 1.
This trademark is identical to the disputed domain name.
Respondent has no rights to the domain name as it neither owns a registered nor a common law identical trademark. No registration or application therefor nor any proof of actual use of such trademark is available.
As Respondent has no rights to any corresponding trademark Respondent registered the disputed domain name in bad faith."
The supporting documentation shows that the Complainant is the owner of a German registered trademark for "EOS" (registration No. 2075778).
The Respondent failed to file a Response.
In accordance with Rule 5(e) of the STOP Rules, this dispute shall be decided on the basis of the Complaint alone.
6. Discussion and Findings
In order to qualify for a remedy, the Complainant must prove each of the three elements set out in Paragraph 4(a) of the STOP Policy, as approved by ICANN on May 11, 2001, namely:
(a) the domain name is identical to a trademark or service mark in which the complainant has rights; and
(b) the respondent has no rights or legitimate interests in respect of the domain name; and
(c) the domain name has been registered or is being used in bad faith.
The onus of proving these elements is that of the Complainant. The Respondent failed to submit a Response, so that Panel may draw inferences against the Respondent.
6.1 Identical to a trade mark or service mark
The Panel finds that the Complainant is the owner of the registered trademark EOS and that the domain name is identical to the EOS trademark, apart from the generic ".biz" identifier. The addition of the generic identifier ".biz" does nothing to deflect the impact of the viewer of the "EOS" mark.
The Complainant succeeds on this requirement.
The Complainant contends that the Respondent has no legitimate interest in the use of the domain name as the Respondent does not own any trademark or service mark registrations for EOS and has no rights in the EOS mark. The Panel accepts this.
There is no apparent association between the disputed domain name and Respondentís name (News America Incorporated).
The Panel finds that the Respondent does not satisfy any element of Paragraph 4(c) of the STOP Policy.
The Complainant succeeds on this requirement.
6.3 Bad Faith
The Complainant contends that the Respondent registered and is using the domain name in bad faith as the Respondent does not own any trademark or service mark registrations for EOS and has no rights in the EOS mark. This is the only ground that the Complainant is relying on to show bad faith.
The disputed domain name has not been used.
The Complainant provided no evidence of any correspondence or communication between the Complainant and the Respondent.
The Complainant has not provided any evidence to suggest that the "EOS" trademark is well-known, or is used by it, or is used or known in the United States (where the Respondent is located.) It is not improbable that the Respondent has never heard of the Complainant. It is possible that the Respondent registered the domain name for a purpose completely unrelated to the Complainantís trademark or business. The Complainant has not presented any evidence of the Respondentís knowledge or likely knowledge of the Complainantís business or trademark.
It is possible that the Complainant and the Respondent do not compete with each other. No evidence was presented by the Complainant as to its business or the Respondentís business. From the Panelís review of the Complainantís website at http://www.eosint.com and the Respondentís website at http://www.newsamerica.com, it appears that the goods and services offered by the parties are completely different. Even drawing inferences against the Respondent because the Respondent did not file a Response, the Panel concludes that the Respondent is unlikely to know of the Complainantís existence, and it is even more unlikely that the Respondent, in registering the disputed domain name, had any intention of disrupting the Complainantís business or trading off the Complainantís reputation. Compare The Boots Company Plc v. Challenge Services (CSI), WIPO Case No. DBIZ2002-00096.
The Panel has reviewed the helpful Gene Logic decision (Gene Logic Inc v. Cho Kyu Bock, Claim Number: FA0112000103042), which discusses notice and bad faith. The Panel does not believe that the principles in the Gene Logic decision relating to bad faith have relevance where there is no evidence that the Complainant and the Respondent are competitors or potential competitors.
Contrary to the Complainantís weak assertion, the fact that the Respondent does not own any trademark or service mark registrations for EOS is not on its own enough to show bad faith on the part of the Respondent: Whirlpool Properties Inc. v. Palne Gyurkovits, WIPO Case No. DBIZ2002-00007.
There is no evidence that the Respondent registered the domain name for any of the purposes set out in paragraph 4(b) of the STOP Policy. The Complainant has not provided sufficient evidence of any of the conduct listed as evidence of bad faith in paragraph 4(b) of the STOP Policy, nor has it provided sufficient evidence of any other conduct showing bad faith on the Respondentís part for the purpose of paragraph 4(a) of the STOP Policy. Domain Bank, Inc. v Sonic Co., Ltd, WIPO Case No. DBIZ2001-00014; Whirlpool Properties Inc. v. Palne Gyurkovits, WIPO Case No. DBIZ2002-00007.
The Panel decides that there is no evidence of bad faith. The Panel is unable to draw the required conclusions where no evidence has been presented on this issue, where the disputed domain name has not been used, and where the Complainant and Respondent are located in different countries and do not appear to be competitors. Domain Bank, Inc. v Sonic Co., Ltd, WIPO Case No. DBIZ2001-00014; Whirlpool Properties Inc. v. Palne Gyurkovits, WIPO Case No. DBIZ2002-00007.
For the reasons set forth above, the Panel decides that the Complaint fails.
According to STOP paragraph 15(e), the Panel decides that subsequent challenges under STOP against the domain name shall be permitted.
Dated: July 11, 2002