WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kelemata S.p.A. v. Mr. Hugo Bazzo
Case No. D2003-0594
1. The Parties
The Complainant is Kelemata S.p.A. of Torino, Italy, represented by Studio Legale Jacobacci & Associati of Torino, Italy.
The Respondent is Mr. Hugo Bazzo of Paratiba, Chile.
2. The Domain Name and Registrar
The disputed domain name <kelemata.com> is registered with Key-Systems GmbH dba domaindiscount24.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 29, 2003. On July 30, 2003, the Center transmitted by email to Key-Systems GmbH dba domaindiscount24.com a request for registrar verification in connection with the domain name at issue. On August 1, 2003, Key-Systems GmbH dba domaindiscount24.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 4, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was August 24, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on August 29, 2003.
The Center appointed Mr. Anders Janson as the sole panelist in this matter on September 3, 2003. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant is an Italian joint-stock corporation, in the field of cosmetics. Complainant is the owner of several trademark registrations for KELÉMATA in Class 3, which include among other products, cosmetics, such as, inter alia.:
- Registration No 845425, of KELÉMATA in France, registered August 12, 1971;
- Registration No 928976, of KELÉMATA, in Germany, registered March 12, 1975;
- Registration No 1076059, of KELÉMATA, in Great Britain, registered July 4, 1978;
- Registration No 250969, of KELÉMATA in Italy, registered April 3, 1971;
- Registration No. 74200, of KELÉMATA in Italy, registered May 12, 1947;
- Registration No. 301191, of KELÉMATA, in Italy, registered January 3, 1977;
- Registration No. 346829, of KELÉMATA, in Italy, registered July 15, 1977;
- Registration No. 335506, of KELÉMATA, in Italy, registered June 6, 1983;
- Registration No 1212062, of KELÉMATA, in USA, registered October 12, 1982;
- Registration No. 267320, of KELÉMATA, in Uruguay, registered August 8, 1995;
- Registration No. 101150-F, of KELÉMATA, in Venezuela, registered January 10, 1983.
The panel notes that the registration dates of all of the above-referenced registrations as well as the vast majority of the registrations listed in the Complaint predate the date of registration of the disputed domain name by the Respondent.
The panel finds it established that KELÉMATA is a well-recognized trademark and that the trademark is both distinctive and famous.
The Respondentís stated name is Hugo Bazzo who, when he registered the disputed domain name, provided the registrar with a contact address in Chile. The Complainant has concluded that there exists no such address in Chile. Furthermore, the Complainant has concluded that there exists no telephone subscriber called "Hugo Bazzo" in Chile. The Respondent is in default, and accordingly, has not challenged the conclusions of the Complainant.
The Respondent has registered several other domain names, such as <sergiosoldano.info> and <valentinogaravani.info> which both are similar to well-known trademarks. Both sites link to the same web site as the disputed domain name.
The disputed domain name <kelemata.com> was registered by the Respondent with Key-Systems GmbH dba domaindiscount24.com. The disputed domain name links to a pornographic site at "www.jizzattack.com" with a web site called "Jizz attack".
5. Partiesí Contentions
The Complainant contends that:
- The disputed domain name is identical and confusingly similar to a trademark or service mark in which the Complainant has rights;
- The Respondent has no rights or legitimate interests in respect of the domain name;
- The domain name has been registered and is being used in bad faith; and
- The domain name <kelemata.com> should be transferred to the Complainant
The Respondent did not reply to the Complainantís contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The domain name at issue is <kelemata.com>. Complainant is the holder of a large number of registered trademarks of the word Kelémata'. KELÉMATA is a well-known trademark throughout the world. The Complainant has provided statements to support the supposition that the disputed domain name and the trade name and trademark of the Complainant are confusingly similar.
The Respondent does not contest this supposition.
The panel finds that the Complainantís well-known trademark is identical with the trade name Kelemata S. p. A. Furthermore, the disputed domain name is confusingly similar to the Complainantís trademark and is, by virtue only of the omission of an acute accent not identical. The Panel notes that so far, it is for technical reasons a necessity to omit the acute accent in a domain name. The domain name must therefore be considered identical with the trademark KELÉMATA. The panel holds that the Complainant has established element (i) of the Policyís Paragraph 4(a).
B. Rights or Legitimate Interests
The Respondent has not filed a Response in accordance with the Rules, Paragraph 5. There is no apparent connection between the Respondent and the disputed domain name, and no obvious legitimate connection between the disputed domain name and the content of the site to which it links. There is no evidence of the Respondent's use of, or demonstrable preparation to use the domain name with a bona fide offering of goods and services. The Respondent has not presented any evidence of rights or legitimate interest in using the disputed domain name.
Under these circumstances, the mere assertion from the Complainant that the Respondent has no rights or legitimate interests is enough to shift the burden of proof to the Respondent for him to demonstrate such a right or a legitimate interest. The Respondent has not presented any evidence of rights or legitimate interests in using the disputed domain name and has no obvious connection to it. The panel therefore holds that the Complainant has established element (ii) of the Policyís Paragraph 4(a).
C. Registered and Used in Bad Faith
For the purposes of Paragraph 4(a)(iii), evidence of the registration and use of a domain name in bad faith shall include, inter alia, proof that by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to a web site, by creating a likelihood of confusion with the Complainantís mark as to the source or affiliation of the web site or of a product or service on the web site (Policy, Paragraph 4(b)(iv)).
The Panel has already established that the mark KELÉMATA is well known and that the disputed domain name is identical and confusingly similar to the Complainantís famous mark. The trademark registrations of KELÉMATA date back to 1947 in Italy, and have been registered in many countries for decades. It is highly unlikely that the Respondent registered the disputed domain name not knowing of the Complainantís mark. Furthermore, the Respondent has not presented any reasons, evidence or arguments of a legitimate interest in using or registering the disputed domain name. In addition, the Respondent has, by all accounts, given a false address and telephone number. The Panel finds that the Respondent has registered the disputed domain name in bad faith.
The pornographic site to which the disputed domain name links can be further navigated only if the user pays a fee. Any Internet user with a legitimate interest in the Complainants products is likely to be confused by the Respondents use of the Complainantís trademark. Furthermore, the Respondents use of the domain name is likely to tarnish the trademark.
The Panel therefore, concludes that the Complainant has proven that the Respondent was acting in bad faith pursuant to Paragraph 4(a)(iii) of the Policy.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <kelemata.com> be transferred to the Complainant.
Dated: September 16, 2003