WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Globovisión Tele C.A. v. Contragolpe en Venezuela
Case No. D2004-0058
1. The Parties
The Complainant is Globovision Tele, C.A., a corporation duly organized and validly existing under the laws of the Republic of Venezuela, with its principal place of business located in Alta Florida, Caracas, in Venezuela, and represented by the law firm of Tinoco, Travieso, Planchart & Núñez, from Venezuela.
The Respondent is an individual or entity doing business or simply registered as Contragolpe en Venezuela, with its place of business located in Caracas, Venezuela.
2. The Domain Name and Registrar
The domain name under dispute is <globovision.net> (the "Domain Name").
The registrar of the disputed domain name is Tucows, Inc. ("TUCOWS" or the Registrar), from Toronto, Ontario, Canada.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 23, 2004, and on January 29, 2004, through e-mail and hardcopy, respectively, with the required filing fee for a single-member administrative panel. The Complaint was filed in accordance with the Uniform Domain Name Dispute Resolution Policy (the "Policy") adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). An Acknowledgment of the Receipt of Complaint was sent to Complainant by the Center on January 23, 2004.
On January 23, 2004, the Center transmitted by email to TUCOWS a request for registrar verification in connection with the domain name at issue. On January 23, 2004, WIPO received via e-mail from TUCOWS the Registrar's Verification Response confirming that the Domain Name is currently registered to Respondent and that the Domain Name is currently on "registrar lock" status and will remain locked during the pending administrative proceeding; and, that a Registrar Service Agreement is in effect. Copy of the complaint was received by the Registrar on January 26, 2004.
On March 11, 2004, the Center verified that the Complaint satisfied the formal requirements of the Policy, the Rules, and the Supplemental Rules. It is worth mentioning that the undersigned sole panelist has independently determined and agrees with the Center's assessment that the Complaint is in formal compliance with the requirements of the Policy, the Rules, and the Supplemental Rules.
On March 11, 2004, the Center properly sent via e-mail and hardcopy through express mail to Respondent and to the technical and administrative contact, a "Notification of Complaint and Commencement of Administrative Proceeding" enclosing copy of Complainant's Complaint. This sole panelist considers that the Complaint was properly notified to the registered domain-name holder, the technical contact, and the administrative contact as provided for in paragraph 2(a) and 4(a), of the Rules.
In accordance with the Rules, paragraph 5(a), the due date for Response was March 31, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 5, 2004.
On April 14, 2004, the undersigned signed and sent to the Center, a Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On April 16, 2004, the Center sent to Complainant and Respondent a "Notification of Appointment of Administrative Panel and Projected Decision Date", appointing Pedro W. Buchanan Smith as sole panelist and scheduling April 30, 2004, as the date for issuance for the Panel's decision, pursuant to paragraphs 6(h) and 15(b) of the Rules. The Panel finds that it was properly constituted. On the same date, WIPO transferred the case file to the sole panelist, with copy being sent to Complainant and Respondent.
The Panel has not received any requests from Complainant or Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information, statements or documents from the parties (taking note of Respondent's default in responding to the Complaint), nor the need as an exceptional matter, to hold any in-person hearings as necessary for deciding the complaint, as provided for in paragraphs 12 and 13 of the Rules. Therefore, the Panel has decided to proceed under the customary expedited nature contemplated for this type of domain name dispute proceedings.
The language of the proceeding is English, as being the language of the domain registration and Service Agreement, pursuant to paragraph 11(a) of the Rules and as confirmed by the January 23, 2004, Registrar's Verification Response.
4. Factual Background
That the corporate name of the Complainant is Globovision Tele, C.A. as derives from its duly registered by-laws.
That the trademarks "GLOBOVISION", "GLOBOVISION TELE" and "TELE GLOBOVISION " were originally registered by the related company "Editora Notiglobo, C.A." under the competent Intellectual Property Venezuelan authority, and then legally transferred to the related company "Corpomedios GV Inversiones, C.A." who finally entered into a trademark license agreement with Complainant granting Complainant with exclusive right to use said trademarks. That said trademarks of the Complainant were registered since 1998. That said registry of trademarks grant the Complainant the exclusive use of the word "globovision".
That Complainant operates a news and information television station called "Globovision Tele", being the only TV station solely dedicated to news and information in such country. That such station enjoys great popularity in Venezuela and is nowadays has the third highest rating. That all the activity of said station, as well as that of its personnel and properties carry the distinctive sign "Globovision". That the word "globovision" is as of today immediately identified in Venezuela with the news and information TV channel owned by the Complainant. That the above can be verified by accessing Complainant's web site at "www.globovision.com", which was registered on March 13, 1997.
That later on January 19, 2001, which is practically four years after the Complainant's registry, Respondent requested the registry of a domain name with the same word "globovision", which is <globovision.net>. That in the domain name <globovision.net> the word "globovision" is, without a doubt, the fundamental phonetic and graphic basis of said domain name.
5. Parties' Contentions
That the trademarks "GLOBOVISION", "GLOBOVISION TELE" and "TELE GLOBOVISION " grant the Complainant the exclusive use of the word "globovision". That there is no doubt that there is absolute identity between the domain name of the Complainant <globovision.com> and the domain name of the Respondent <globovision.net>, once eliminated from the comparison the "net" and the "com".
That the Respondent absolutely lacks any right or legitimate interest with respect to the disputed domain name, as <globovision.net>, does not correspond to any Internet site on the web. That when entering "www.globovision.net" Complainant indicates that the user is immediately directed to Complainant's web site "www.globovision.com", and consequently, that Respondent does not seem to have had any special interest when choosing the name "globovision" for its domain. That the word "globovision" is as of today immediately identified in Venezuela with the news and information TV channel owned by the Complainant.
That Complainant's trademarks date from 1998, which registration grant the Complainant the exclusive use of the word "globovision".
That since Respondent "operates" in Venezuela (as he indicated in his domain registry) it was of his knowledge that he was registering a domain name which corresponds to a trademark over which he has no rights.
That domain name <globovision.net>, does not correspond to any internet site on the web.
That GLOBOVISION, (i) is the duly registered corporate name of the company, (ii) is a trademark which was duly registered in Venezuela and is of the exclusive use of the complainant, (iii) is the name of the TV station operated by the company and the name under which said station is generally identified in Venezuela and (iv) is the domain name under which Complainant operates its internet site.
That the Respondent, who resides in Venezuela, was fully aware of the fact that he was acquiring someone else's property which in itself evidences his bad faith when registering and using the name "globovision".
Respondent has provided false contact information in its registration for the Domain Name including a false name, phone number and fax number, further evidencing its bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The Panel considers that the Respondent by registering the contested domain name with TUCOWS (an ICANN accredited domain name registrar), it agreed to be bound by all terms and conditions of a certain Registration Agreement", and any pertinent rule or policy, and particularly agreed to be bound by the Policy (incorporated and made a part of the Registration Agreement by reference), which requests that proceedings be conducted according to the Rules and the selected administrative-dispute-resolution service provider's supplemental rules. Therefore, the dispute subject matter of this proceeding is within the scope of the above mentioned agreements and Policy, and this Panel has jurisdiction to decide this dispute.
Furthermore, the Panel considers that in the same manner by entering into the above mentioned Registration Agreement, under section 7 of such Agreement the Respondent acknowledged and agreed to be bound by the Policy.
The Panel also particularly considers that it is essential to dispute resolution proceedings that fundamental due process requirements be met.
Such requirements include that the parties and particularly the Respondent in this case be given adequate notice of proceedings initiated against them; that the parties may have a fair and reasonable opportunity to respond, exercise their rights and to present their respective cases; that the composition of the Panel be properly made and the parties be notified of the appointment of this Panel; and, that both parties be treated with equality in these administrative proceedings.
In the case subject matter of these proceedings, the Panel is satisfied that these proceedings have been carried out by complying with such elemental due diligence requirements, and particularly contemplating the notification of the filing of the Complaint and the initiation of these proceedings giving the Respondent a right to respond. The failure of the Respondent to submit a response is not due to any omission under these proceedings. There is sufficient and adequate evidence confirming the above.
Considering that the Respondent has defaulted in submitting a response to the allegations of Complainant, this Panel as directed by paragraphs 14(a) and (b) and 15(a) of the Rules shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable, and may draw such inferences there from as it may consider appropriate on the basis of Complainant's undisputed representations.
Paragraph 4(a) of the Policy directs that the Complainant must prove the presence of each of the following elements: (i) that the 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 domain name; and, (iii) that the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
This Panel finds that Respondent's Domain Name is identical to Complainant's GLOBOVISION trademark, to its corporate name, to its television station in Venezuela (where Respondent has its registered domicile) and to the name of Complainant's web page, as contemplated under paragraph 4 (a)(i) of the Policy.
B. Rights or Legitimate Interests
Furthermore, this Panel finds that there is no indication that the Respondent has any rights or legitimate interests in respect of the Domain Name as it has not used or prepared to use the GLOBOVISION domain name in connection with any bona fide offering of goods or services as contemplated under paragraph 4(c)(i) of the Policy; nor that the Respondent is commonly known by the domain name as contemplated under paragraph 4(c)(ii) of the Policy; nor that the Respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue as contemplated under paragraph 4(c)(iii) of the Policy.
C. Registered and Used in Bad Faith
The Panel also finds that Respondent has used the Domain Name in bad faith, in particular but without limitation, pursuant to paragraph 4(b)(iv) of the Policy, in view that Respondent registered a Domain Name identical to Complainant's GLOBOVISION trademark, absent the generic domain suffix, which trademark is used by a well known television station in Venezuela which is the registered domicile of the Respondent; and, also provided false contact information in its registration for the Domain Name including a false name, phone number and fax number, further evidencing its bad faith.
Lastly, it is hereby noted that no settlement has been reached by the Parties and made known to this Panel prior to the rendering of this Panel's decision, which may eventually affect or give ground for termination of this administrative proceedings as provided for under paragraph 17(a) of the Rules, nor is this Panel aware of the existence or initiation of any other type of legal proceedings before a court of competent jurisdiction for independent resolution, regarding the domain name dispute as contemplated under paragraph 4(k) of the Policy.
Therefore, and in consideration to the Complaint's compliance with the formal requirements for this domain dispute proceeding, to the factual evidence and legal contentions that were submitted, to the conclusive confirmation of the presence of each of the elements contemplated in paragraph 4(a)(i), (ii), and (iii) of the Policy, and on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and other applicable rules and principles of law, as directed by paragraphs 14(a) and (b) and 15(a) of the Rules, this Panel considers:
(1) that the Domain Name registered by Respondent is identical to Complainant's licensed trademark GLOBOVISION;
(2) that Respondent has no rights or legitimate interests in respect of the <globovision.net> Domain Name; and
(3) that the <globovision.net> Domain Name has been registered and is being used in bad faith by the Respondent.
Therefore, the Panel orders, pursuant to what is provided for under paragraphs 3(c) and 4(i) of the Policy and 15 of the Rules, that the registration of the domain name <globovision.net> be transferred to Globovision Tele, C.A., Complainant.
Pedro W. Buchanan Smith
Dated: April 27, 2004