WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Centro Internacional de Negocios Monterrey, A.C., Cintermex v. Domains Ventures
Case No. D2007-0940
1. The Parties
The Complainant is Centro Internacional de Negocios Monterrey, A.C., Cintermex, of Monterrey, Nuevo Leon, México represented by GJ Y Asociados, Abogados, S.C., México.
The Respondent is Domains Ventures, of Xiamen, Fujian, China.
2. The Domain Name and Registrar
The disputed domain name <cintermex.com> is registered with Moniker Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 26, 2007. On June 29, 2007, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On June 29, 2007, Moniker Online Services, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on August 30, 2007. 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 30, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 19, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 20, 2007.
The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on October 1, 2007. 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
From the evidence submitted by the Complainant, as annexes to the Complaint, the Complainant is the owner of the following trademark: CINTERMEX registered in the Mexican Trademark Registry with Registration Number 461181 in Class 35 protecting publicity and business services in November 11, 1993.
The disputed domain name was created on February 9, 2002.
5. Parties’ Contentions
The Complainant asserts that the Respondent’s registered domain name <cintermex.com> is identical to the CINTERMEX trademark and public name, owned and used by the Complainant throughout Mexico, Latin America and the world.
With respect to the Respondent’s lack of rights and legitimate interests over the disputed domain name, the Complainant contends the Respondent is not the owner of any trademark registration that protects the denomination CINTERMEX and it is not commonly known by the domain name in dispute.
Furthermore, the Complainant contends that the disputed domain name has been registered and is being used in bad faith, merely to capture Internet customers who are seeking the Complainant’s our services, and to re-direct them to other websites. Using a domain name to intentionally attract, for commercial gain, Internet users to a website by creating a likelihood of confusion with a complainant’s mark is evidence of bad faith registration under the Policy. The Complainant asserts it is obvious that the Respondent knew the existence and identity of the Complainant and its trademark when registering the domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to the Policy, the Complainant must prove, as required by Paragraph 4(a) of the Policy, that:
(i) the contested 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.
The fact that the Respondent has not provided a Response to the Complaint does not relieve the Complainant of the burden of proving its case. In the absence of a Response, Paragraph 5(e) of the Rules expressly requires the Panel to “decide the dispute based upon the complaint”. Under Paragraph 14(a) of the Rules in the event of such a “default” the Panel is still required “to proceed with a decision on the complaint”, whilst under Paragraph 14(b) of the Rules it “shall draw such inferences there from as it considers appropriate”. This dispute resolution procedure is accepted by the domain name registrant as a condition of registration.
Thus where a party fails to present evidence in its control, the Panel may draw adverse inferences regarding those facts. (Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques, WIPO Case No. D2000-0004; State of Wisconsin v. Pro-Life Domains, Inc., WIPO Case No. D2003-0432). Here, since the Respondent has defaulted, it is appropriate to accept the facts asserted by the Complainant and to draw inferences there from as it considers appropriate.
A. Identical or Confusingly Similar
The facts clearly favor the Complainant. The domain name is identical to the trademark, except for the generic top-level domain name “.com”. As a rule, addition of the generic top-level domain (gTLD) reference, which is necessary for a domain name to be operational, does not alter the domain name, and is sufficient to establish functional identity with the complainant’s mark. See Pomellato S.p.A v. Richard Tonetti, WIPO Case No. D2000-0493, Telecom Personal, S.A., v. NAMEZERO.COM, Inc., WIPO Case No. D2001-0015, Société Générale and Fimat International Banque v. Lebanon Index/La France DN and Elie Khouri, WIPO Case No. D2002-0760.
The Panel thus finds for the Complainant on the first part of the test.
B. Rights or Legitimate Interests
The Panel finds that the Complainant has made a prima facie showing that Respondent does not have rights or legitimate interests in the domain name within the meaning of Paragraph 4 (a) of the Policy.
This finding is based on the following, non-disputed, circumstances brought forward by the Complainant.
There is no indication in the file that the Respondent is known under the disputed domain name.
The Respondent is not the owner of any trademark.
The Respondent is using the domain name for commercial gain to misleadingly divert consumers.
Furthermore, the Respondent has not provided evidences of circumstances of the type specified in Paragraph 4(c) of the Policy, or any other circumstances giving rise to rights or legitimate interests in the domain name.
Under these circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the domain name and that the requirement of paragraph 4(a)(ii) of the Policy is also satisfied.
C. Registered and Used in Bad Faith
The Panel has considered the Complainant’s assertions and evidence with regard to Respondent’s registrations and use of the domain name in bad faith. By not submitting a response, the Respondent has failed to invoke any circumstances that could demonstrate that it did not register and use the domain name in bad faith.
The Complainant has also established that its trademark has been used extensively in Mexico and is valuable. This Panel has checked how the Respondent’s webpage contains references to Mexico and Monterrey which is the city where the Complainant is located.
Given the evidence put forward by the Complainant, and the lack of any response from the Respondent, this Panel finds that the domain name <cintermex.com> was registered and is being 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 <cintermex.com> be transferred to the Complainant.
Date: October 15, 2007