WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
PSR SPRL, OFFAC SPRL and ASTERIA SPRL v. Sanyi Vajai (Romania4you)
Case No. D2006-0261
1. The Parties
The Complainants are PSR SPRL, OFFAC SPRL and ASTERIA SPRL, Belgium, represented by an external representative.
The Respondent is Sanyi Vajai, Bucuresti, Romania.
2. The Domain Name and Registrar
The disputed domain name <ardennes-etape.net> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 2, 2006. On March 2, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On March 3, 2006, eNom transmitted by email to the Center its verification response 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 March 14, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was April 3, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 4, 2006.
The Center appointed Eva Fiammenghi as the sole panelist in this matter on April 19, 2006. 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 Complainants PSR SPRL, OFFAC SPRL and ASTERIA SPRL declare that all these companies are exclusive owners of the commercial name “ardennes-etape”, and their commercial activity is based on this commercial name.
The Complainants declare moreover that these companies offer services relating to renting of houses, villas, etc., in the area of the Belgian Ardennes.
The Complainant ASTERIA SPRL is the exclusive owner of the following trademark:
Reg. No. 070498
Filing Date 26/09/01
The Complainant PSR SPRL is the exclusive applicant for the Community trademark:
Appl.. No. : 004170213
Filing Date: 20/12/04
Cl: 35, 36, 41
The Respondent is based in Romania.
The Respondent is the owner of the domain name <ardennes-etape.net> registered on November 10, 2005.
5. Parties’ Contentions
The Complainants claim that they have rights to the above-mentioned trademarks.
The Complainants contend that the Respondent has no rights or legitimate interests in respect of the domain name. The Complainants declare that the Respondent has registered the domain name only with an intent to sell the domain name.
The Complainants assert that the domain name <ardennes-etape.net> has been registered in bad faith and has been used in bad faith, because the domain name is offering identical services to the Complainants’ services, i.e. renting of houses, villas etc. in the area of Belgian Ardennes.
The Respondent failed to respond to the Complainants’ contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, and
(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, “[…] In the administrative proceeding, the complainant must prove that each of these three elements is present.” Accordingly, the Respondent’s failure to submit a response does not result in the granting of the Complainants’ request automatically. The Panel is obliged to examine the evidence filed to determine whether or not the Complainants have proven the requirements of the Policy.
A. Identical or Confusingly Similar
ASTERIA SPRL is the exclusive owner of the trademark ARDENNES-ETAPE, Reg. No. 070498, filed on September 26, 2001, in Benelux, and the owner of the domain name <ardennes-etape.eu>.
The Complainants also claim that they have reserved many domain names including the trademark ARDENNES ETAPE, i.e.:
The Panel is of the opinion that the domain name <ardennes-etape.net> is identical to ASTERIA SPRL’s mark, ARDENNES-ETAPE, Reg. No. 070498.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy reads as follows:
“Any of the following circumstances, in particular, but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate non-commercial 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.”
The Complainants have demonstrated that the website with the disputed domain name used to display information and links to competing services to the Complainant’s services. Currently such information is no longer displayed and it appears that the website contains information on credit cards, lending and other financial services. In consideration of the fact that this modification has been introduced after the Complaint has been notified to the Respondent, the Panel does not find such use of the disputed domain name to be bona fide in the context of this case.
Further, there is no other circumstances indicating that the Respondent would have rights or legitimate interests to the domain name in accordance with paragraph 4(c) of the Policy.
Based on the record, and in the absence of a rebuttal from the Respondent, the Panel finds that the Respondent has no rights or legitimate interests in the domain name.
C. Registered and Used in Bad Faith
The Respondent has registered a domain name that incorporates the Complainant ASTERIA SPRL’s trademark in its entirety.
The domain name at issue was further being used to divert Internet users to sites offering services that compete with those of the Complainant.
On the basis of the above, the Panel finds that Respondent registered the domain name <ardennes-etape.net> to attract Internet users, for commercial gain, by creating a likelihood of confusion with the Complainant’s mark (Policy, Paragraph 4(b)(iv)).
Accordingly, pursuant to paragraph 4(b) of the Policy, this Panel finds that the disputed domain name was registered and has been used in bad faith by the Respondent.
For all the foregoing reasons, in accordance with paragraphs 4(a) of the Policy and 15 of the Rules, the Panel orders that the domain name <ardennes-etape.net> be transferred to the Complainant ASTERIA SPRL.
Dated: May 3, 2006