WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Campsa Estaciones de Servicio, S.A. v. Maninfor Murcia GB, S.L.
Case No. D2004-0467
1. The Parties
The Complainant is Campsa Estaciones de Servicio, S.A., Madrid, Spain, represented by Clarke, Modet & Co., Spain.
The Respondent is Maninfor Murcia GB, S.L., Maninfor.com - Admin, Maninfor, Alguazas, Spain.
2. The Domain Name and Registrar
The disputed domain name <campsared.com> is registered with Gandi SARL.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 28, 2004. On June 28, 2004, the Center transmitted by email to Gandi SARL a request for registrar verification in connection with the domain name at issue. On June 29, 2004, Gandi SARL 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 July 7, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was July 27, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 29, 2004.
The Center appointed Paz Soler Masota as the sole panelist in this matter on August 5, 2004. 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.
On August 5, 2004, the Complainant submitted to the Center additional findings of law to be considered by the panelist, who admitted its submission. The Center provided this additional documentation to the panelist by fax, on August 5, 2004.
4. Factual Background
From the Complaint and the various Exhibits to it, the Panel has found the following:
(1) The Complainant is the legitimate owner of several worldwide marks “CAMPSARED”, along with many other trademarks and domain names incorporating the worldwide well-known CAMPSA mark. A previous decision of the panel has also recognized the goodwill associated with the CAMPSA marks, which are well-known in the field of petrol retail: WIPO Case No. D2000-1238; Productos Petroliferos, S.A. v. Juana Hidalgo Martos.
(2) The Respondent registered the disputed domain name on October 20, 2002, long after the registration of Complainant’s trademarks.
(3) On March 10, 2004, the Complainant sent a cease and desist letter to Respondent. According to Complainant’s contentions, this letter was never answered by Respondent.
(4) On April 27, 2004, the legal representative of Complainant, Ms. Elena Fernández, sent an e-mail to Respondent, offering an amicable solution to the conflict (the purchase of the disputed domain name for the out-ot-pocket cost) prior to the consideration of other options. According to Complainant’s contentions, this e-mail was never answered by Respondent.
(5) The Complainant has provided the Panel with cross-correspondence recently maintained with Respondent, in which the price for the sale of the domain would be firstly established in 5.000 and secondly in 2.000 (currency not identified). The Respondent attributes both prices to subsequent offers received from the Complainant, which the Complainant denies.
(6) The Panel has entered the website operated under the disputed domain name, on August 6 and 9, 2004, and confirmed the evidence provided by the Complainant, as to the current features of the website. The website contains only a page, apparently announcing information about real state properties to be rented, purchased or sold, among others, along with a telephone number. The site contains no more information than the said announcement, although a link is provided to an e-mail address.
5. Parties’ Contentions
The Complainant contends the following:
(1) That the domain name under discussion is absolutely identical to the various worldwide trademarks “CAMPSARED” owned by it, and also practically identical to the very well-known trademarks “CAMPSA”, also owned by it.
(2) That Respondent is perfectly aware and conscious of the existence of the trademarks “CAMPSARED” and “CAMPSA”, due to their notorious character, a circumstance which is even more evident as Respondent is located in Spain.
(3) That Complainant has never authorized the Respondent to use any of the marks abovereferred and thus, the Respondent has no legitimate interest in the controverted domain name.
(4) That the occupation of the domain name at issue by Respondent is preventing it from having a direct presence on the Internet.
(5) That the Respondent offered the sale of the disputed domain name to the public, through the website operated under the mentioned domain, by providing a link to the website of Respondent. The Complainant has provided a printout of the website “ www.campsared.com” of February 17, 2004, although not intervened by any authority holding competence to attest documents, so as to support the authentic character of the mentioned printout.
(6) That on March 10, 2004, it sent a cease and desist letter to Respondent, which was never answered, although received by Mr. Sergio Turpin (on behalf of Respondent), according to the data of the letter acknowledgement receipt. According to the Complainant, this letter lead to a change in the contents of the website under the name “campsared.com”, although this point has not been supported by any evidence thereof. The Panel, hence, would only take into account the current configuration of the website under the domain at issue.
(7) That on April 27, 2004, the Complainant sent an e-mail to the Respondent, offering the purchase of the disputed domain name for an amount (not specified) covering the registration and maintenance costs, which was never answered, according to the Complainant.
(8) That the Respondent tries to establish a ridiculous relationship between the name “CAMPSARED” and its presumed and non-existent real state business indicating that it is an acronym for “CAsas de Murcia Para Su Alquiler en la RED” (that is: “Houses of Murcia for Rent through the Internet”).
(9) That the Respondent has, in light of all the abovementioned, registered the disputed domain name to capitalize on Complainant’s hard-earned and valuable goodwill.
And consequently, Complainant requests that the domain name <campsared.com> be transferred to it.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, Complainant should show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which it has rights, that the Respondent has no rights or legitimate interests in respect of the domain name and that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel has compared the disputed domain name with the Complainants’ trademarks and easily arrived at the conclusion that: (i) the disputed domain name is identical letter-by-letter to the Complainant’s trademarks “CAMPSARED” and that, moreover, (ii) the disputed domain name also contains verbatim the very well-known trademark “CAMPSA”.
Therefore, the Panel finds that the disputed domain name is confusingly similar to the registered trademarks “CAMPSARED” and “CAMPSA” of the Complainant, the requirement of the Policy paragraph 4(a)(i) being thus satisfied.
B. Rights or Legitimate Interests
There is no evidence, as Respondent has not contested the Complaint, that it has any right or legitimate interest whatsoever in respect of the disputed domain name, which incorporates the trademarks of the Complainant.
The Complainant, moreover, has alleged that it has not authorized the Respondent to use the trademarks, nor to register the domain name containing them. Therefore, on this point, Complainant prevails.
Additionally, as it shall be discussed below, Complainant has provided enough evidence to demonstrate that Respondent has used the domain name in bad faith.
The Panel therefore finds that Respondent has no rights or legitimate interests in the disputed domain name, the requirement of the Policy paragraph 4(a)(ii) being thus satisfied.
C. Registered and Used in Bad Faith
The panel has carefully analyzed the information and documentation provided by Complainant, and has concluded that the Respondent has registered and used the disputed domain name in bad faith, in ways outlined in the Policy paragraph 4b(i) and (iv).
First and mainly, Respondent has offered the sale of the disputed domain name to the Complainant for a price exceeding the out-of-pocket costs of its registration and maintenance. This assumption is based on the fact that, although the Respondent alleges the existence of those costs in the e-mails addressed to the Complainant, provides no data to document them. On the contrary: the Respondent took into consideration, in the course of the negotiations between the parties, and in a short period of time, two very different prices (5000 and 2000 –currency not determined-, respectively), thus evidencing the true intention underlying its tactics. It is not clear to the Panel whether the offer to sell the domain was solicited or unsolicited, but this is ultimately an irrelevant circumstance: what really counts is the aim of the Respondent to obtain a profit out of the sale. This would be sufficient to establish that the disputed domain name was registered primarily for the purpose of selling, renting or otherwise transferring its registration to the Complainant or to a member of the public, for valuable consideration in excess of any documented out-of-pocket costs directly related to the domain name. See, among others, Caterpillar Inc. v. Roam the Planet, Ltd WIPO Case No. D2000-0275. It is also worth noticing that the Respondent’s offer of sale for an amount above the out-of-pocket costs took place after receipt of the cease and desist letter received by the Complainant, being thus fully aware of its illegitimate position regarding the disputed domain name.
The bad faith of Respondent is further supported by its naïve attempt to create an appearance of good faith, which is not at all reliable, consisting in the offer online of real state services, mainly because: (i) that offer would be inconsistent with the object declared in the By-laws of the Respondent, according to the information filed in the corresponding Mercantile Registry as provided by the Complainant; and (ii) the intent to develop an acronym is not credible (see again Productos Petroliferos, S.A. v. Juana Hidalgo Martos WIPO Case No. D2000-1238;). Moreover, the precarious design of the website under the disputed domain name leads to the conclusion that there has never been any serious intent, whatsoever, to develop any commercial activity.
The Respondent has not contradicted the contentions of the Complainant, for it has not responded. But it is clear to the Panel that the Respondent would have hardly provided any evidence of its good faith, either in the registration nor in the use of the disputed domain name: (i) given the famous character of Complainant’s trademarks, it is very much doubtful that the Respondent would not have been aware of the “CAMPSARED” or “CAMPSA” trademarks when registering the disputed domain name, specially considering that the Respondent has its residence in Spain; (ii) even in the case that the Respondent would be in the situation to demonstrate that it has developed (under the disputed domain name) some real state activity since it registered the domain, it is a certainty that it omits any reference in the website as to the lack of connection with the Complainant, creating vis-à-vis prospective consumers a likelihood of confusion with the Complainant’s well-known marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s activity under the disputed domain name (see among others Cortefiel, S.A. v. Javier García Quintas WIPO Case No. D2000-0141).
Now therefore, the Panel concludes that the domain name at issue was registered and used in bad faith.
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, <campsared.com> be transferred to the Complainant.
Paz Soler Masota
Dated: August 9, 2004