WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
GEA AG v. Josue da Silva
Case No. D2003-0727
1. The Parties
Complainant is GEA Aktiengesellschaft, Bochum, Germany. Respondent is Josue da Silva, Rio de Janeiro, Brazil.
2. The Domain Name and Registrar
The disputed domain name <gea.biz> is registered with iHoldings.com d/b/a DotRegistrar.com, Miami, FL, United States of America.
3. Procedural History
The combined UDRP and RDRP Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 17, 2003, in hardcopy and on September 22, 2003, by e-mail. On September 17 and 22, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On September 22, 2003, iHoldings.com Inc. d/b/a DotRegistrar.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") and the RDRP, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy and the additional RDRP Rules (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 September 23, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was October 13, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondentís default on October 14, 2003.
The Center appointed Knud Wallberg as the Sole Panelist in this matter on October 23, 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 following information is derived from the Complaint.
Complainant is a global technology group founded in 1920 with 15.000 employees worldwide and sales of approximately 2,9 billion Euro in fiscal year 2000/2001. Complainantís headquarters are located in Germany. However, GEA employs almost 60 % of its staff outside Germany. Complainantís companies and branch offices are located all over the world, including South-America, particularly Brazil, were Respondent is located.
Complainant owns various trademarks protecting the company name "GEA" in numerous countries all over the world for a large variety of goods and services including trademarks protected in Brazil. In accordance with supplemental RDRP Rules para. 1 and UDRP Rules para. 3 (b) (viii) some of these trademarks are specified as follows: 1) German trademark number 1009372 "GEA" including heating installations, cleaning installations for water, data processing installations and equipment; 2) Community trademark number 224709 "GEA" including machine tools, regulating installations, data processing installations, heating installations, advertising business management services, building construction, etc. 3) Brazilian trademark number 800346831 "GEA" for building and engineering services, distribution and control of electricity, water and gas, repairing and maintenance services of electrical, hydraulic and gas installations.
No information is provided about the Respondent.
5. Partiesí Contentions
The domain is not being used primarily for a bona fide business or commercial purpose as requested by the .biz registration restriction.
The website made available under the domain name contains information of and for students of astronomy including information about events of astronomic bodies, classes and lessons, photos of some planets and festivities and links to other astronomic information sources. The website available under the disputed domain appears to be the website of a group of astronomy students of the Federal University of Santa Catarina, Brazil. The homepage bears the headline "Grupo de Estudos de Astronomia" (group of astronomy students) and another page of the website points out that this studentís group belongs to the geology division of the Federal University of Santa Catarina, Brazil. Furthermore, it is clearly stated on the homepage of the "group of astronomy students" that they do not have any commercial purposes. Accordingly, the website does not offer any goods or services and does not include any advertisement except a link "technohelp" leading to a provider of domain name services and links to astronomic journals.
According to Citigroup, Inc. v. Joseph Parvin, WIPO Case No. D2002-0969, such links are not sufficient to establish that the website is "primarily" used for a bona fide business or commercial purpose as requested by the ".biz" registration rules. A website which is merely used "as a referral to other businesses [...] is not the purpose of the Ď.bizí domain."
Additionally, the non-commercial purpose of the website is underlined by the express statement in the first sentence of the homepage stating that the group of students allegedly behind the website does not have any commercial purposes. Along with the decision of United Feature Syndicate, Inc. v. Takeshi Komaba, WIPO Case No. D2002-0901, such statement must be regarded as sufficient evidence of an instance of non-commercial use within the terms of para. 4(c)(iii)(a) of the RDRP.
Hence, the domain being used for an information website of a group of astronomy students who do not have any commercial purposes as expressly stated in the first sentence of the homepage of said website, it is clear that the domain is being used and intended to be used exclusively for personal, non-commercial purposes within the terms of para. 4(c)(iii)(a) of the RDRP and not to exchange goods, services or property of any kind within the terms of para. 4(b)(i) of the RDRP or within the terms of para. 4(a)(ii), (iii) of the RDRP. The domain name does not comply with the ".biz" registration restrictions.
Furthermore the domain name must be transferred to the Complainant according to the provisions of para. 4(a)(i) Ė (iii) of the UDRP:
1) The domain name is identical to Complainantís Brazilian trademark "GEA" and his other trademarks specified above.
2) The Respondent does not have any rights or legitimate interests in respect of the domain name for the following reasons:
Respondent does not use the domain name in connection with a bona fide offering of goods within the terms of para. 4(c)(i) of the UDRP for the reasons set out above (b), nor is Respondent - Mr. Da Silva - commonly known by the domain name "GEA" (para. 4(c)(ii) of the UDRP).
Also, Respondent does not make any legitimate non-commercial or fair use of the domain name within the terms of para. 4(c)(iii) of the UDRP for various reasons:
The website pretends to be a website of and about a group of astronomy students "without any commercial purposes" but for information purposes only. There are no legitimate interests of non-commercial websites in being connected to a .biz domain. No one would expect or look for non-commercial information under a .biz domain as they are open for commercial business purposes only according to the .biz registration restrictions.
Interestingly, the domain <gea.br> is still available so Registrant could easily register his identical second level domain under the country code top level domain .br. This is surprising and does not fit to the purposes pretended on the "gea.biz" website. The Brazilian country code top level domain .br would be best suited for the purposes of a Portuguese speaking website of a local Brazilian organization of students.
The fact that domain <gea.br> is still available is all the more surprising and sheds serious doubts on alleged information purposes as the group of astronomy students pretends to be an organization of the Federal University of Santa Catarina (Universidade Federal de Santa Catarina). However, the website of this University is - naturally - accessible via the country code top level domain ".br," namely <usfc.br>, and not by <usfc.biz>.
With that in mind, there is no interest conceivable for registering the disputed domain <gea.biz> whilst the domain <gea.br> would have been and still is available, which obviously would much better suit the alleged purposes of a non-commercial organization of students of the Brazilian University of Santa Catarina.
The choice of the .biz domain refutes any legitimate information purposes Registrant pretends to aim at with his "gea.biz" site.
Consequently, an Internet research has revealed that Registrantís website is feigned. The official website of the organization of astronomy students of the Federal University of Santa Catarina (Universidade Federal de Santa Catarina) is not available under <gea.biz> as Registrants pretends but Ė naturally Ė under a subdirectory of the universityís domain ufsc.br, namely under "edugraf.ufsc.br/eclipse/gea.html".
Rounding off this finding of non-legitimate interests Complainant has observed that the website has not been updated for years even in subpages which are expressly declared as "new."
Last not least, confirming all indications above that the disputed domain serves domain grabbing purposes only, Respondent has informed Complainant that he was interested in selling the domain name.
3) Respondentís domain name has been registered and is being used in bad faith within the terms of rule 4(a)(iii) UDRP. Respondent has registered the domain name primarily for the purpose of selling it (rule 4 para.(b)(i) UDRP) and/or intentionally attempt to attract Internet users by creating a likelihood of confusion as to sponsorship (rule 4(b)(iv) UDRP) for the following reasons:
The above (a) mentioned trademarks of the Complainant also represent Complainantís company name. Being a global technology group Complainantís company name and "GEA" trademarks are known in many countries all over the world, especially in Respondentís country, where Complainant has a branch office and has also registered its company name as a trademark (see above a).
Complainant has also registered several domain names including its company and trademark name well before Respondent has registered the disputed domain on March 27, 2002, namely the domain <gea-ag.com>, which was registered in November 2001, <gea-ag.info>, registration date October 2001, <gea-ag.biz>, registration date November 2001 and <gea-ag.de>, which was registered on November 7, 2001.
Complainant has first tried to contact Respondent by email to the email address Respondent has provided in the registration sheet. As the mail sent to that address was returned as undeliverable, Respondent has obviously provided false contact details when registering the domain name.
However, Complainant succeeded in sending an email to a different email address mentioned on Respondentís website. Requesting whether the domain name was for sale, Complainant received an answer under the name of a "Geraldo Mattos" of the Federal University of Santa Catarinaís "Financial Control Service" ("Servico di Controle Financeiro S/N"), stating that this request was interesting and that he would answer soon.
The contact details provided in that email also turned out to be feigned. The phone numbers mentioned in that email (48) 331-9122, 331-9868 belong to the University Hospital according to the Universityís telephone list and not to the Universityís Financial Control Service as pretended in the above mentioned email; a Financial Control Service ("Servico di Controle Financeiro S/N") does not appear on the Universityís telephone list at all.
According to Bayer Aktiengesellschaft v. Dangos & Partners, WIPO Case No. D2002-1115 (with references to further WIPO decisions) the provision of false contact information when registering the domain name is sufficient to establish the bad faith element. Additionally, taking into consideration the fact that Respondentís website is not authentic but feigned and that he is very likely to have known Complainantís company name at the time of the registration, there can be no serious doubt, that Respondent has registered the domain for the purpose of selling it to Complainant or, at least, to attract Internet users to his website, insinuating Complainantís sponsorship of the studentsí group in order to raise the interest for advertisement banners.
Respondent did not file a Response.
6. Discussion and Findings
Since this is a combined RDRP and UDRP case the Panel shall base its findings on the Complaint, the RDRP and the UDRP, the UDRP Rules and Supplemental RDRP Rules as well as WIPO Supplemental UDRP Rules and applicable substantive law.
1. UDRP findings
In accordance with Paragraph 4(a) of the UDRP, the Complainant must prove that each of the three following elements are satisfied:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences there from, as it considers appropriate.
A. Identical or Confusingly Similar
The evidence presented by the Complainant demonstrates without doubt that the Complainantís trademark GEA has long been a registered trademark inter alia in Brazil.
The Complainant has used the mark for a number of years, and the Panel is convinced that the mark is broadly known.
The Panel finds that the domain name <gea.biz> is identical to the Complainantís mark GEA apart from the gTLD denomination .biz, which is irrelevant here.
The requirement of Paragraph 4(a)(i) is met.
B. Rights or Legitimate Interests
Although the corresponding website under "www.gea.biz" appears to be used by "Groupo de Estudos de Astronomia" and that GEA could be an acronym for this organization, it is clear from the evidence including from the mail sent by a representative of this group to the WIPO Center, that the said page is not the organizationís official website.
Primarily on this basis the Complainant alleges that the Respondent has no rights or legitimate interests in the domain name. The Respondent has not rebutted this allegation and has not provided the Panel with any explanation as to whether this is the case or not or whether there are indeed legitimate reasons for his choice of the domain name.
The Respondent must bear the consequences of this lack of information and in the light of the other information provided by the Complainant and which raises serious doubts as to the legitimacy of the Respondents registration, the Panel finds that the requirement of Paragraph 4(a)(ii) is also met.
C. Registered and Used in Bad Faith
GEA is registered and has been used in Brazil as well as in many other countries for a number of years. Complainant has not provided any information showing the extent to which GEA is well known in Brazil, or other information that could show or make it probable that Respondent knew of Complainants rights. The mere registration and use of the trademark is not enough to establish that the Respondent registered and is using the domain name in bad faith.
Although there are some elements pointing in the direction of the bad faith of the Respondent, such as the incorrect contact information and the apparent willingness to sell the domain name to the Complainant, the Panel finds that it has not sufficiently been established that the requirements of Paragraph 4(a)(iii) are met.
2. RDRP findings
Under paragraph 4(a) of the RDRP, a respondent is required to submit to an administrative proceeding if a complainant asserts that a ".biz" domain name "is not being or will not be used primarily for a bona fide business or commercial purpose." The RDRP then (in paragraph 4(b)) goes on to define what is meant by "Bona fide business or commercial use." Finally, paragraph 4(c), provides as follows:
"Not a bona fide Business or Commercial Use. Registering a domain name solely for the purposes identified below shall not constitute a "bona fide business or commercial use" of that domain name:
(i) Selling, trading or leasing the domain name for compensation, or
(ii) The unsolicited offering to sell, trade or lease the domain name for compensation.
(iii) For illustration purposes, the following shall not constitute a "bona fide business or commercial use" of a domain name:
(a) Using or intending to use the domain name exclusively for personal, noncommercial purposes; or
(b) Using or intending to use the domain name exclusively for the expression of noncommercial ideas (e.g. registering exclusively to criticize or otherwise express an opinion on the products or services of ABC company, with no other intended business or commercial purpose).
In the present case the Respondent has not filed a Response, but based on the information presented to the Panel by the Complainant, and which can be found above, the Panel finds, without any reasonable doubt, that the contested domain name is used for non-commercial purposes within the terms of paragraph 4(c)(iii)(a) of the RDRP
With reference to Paragraphs 4(i) of the RDRP, the Panel concludes that the Complainant has established that the domain name <gea.biz> is not being used for a bona fide business or commercial purpose, and that therefore the Complainant has made out its case under the RDRP.
Accordingly, the Panel orders that the Domain Name <gea.biz> be transferred to the Complainant.
Dated: November 3, 2003