WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
El Establo S.A v. Miroljub Petrovic
Case No. D2007-1405
1. The Parties
Complainant is El Establo S.A, El Dorado, Panama, represented by its internal representative.
Respondent is Miroljub Petrovic, Mississauga, Ontario, Canada.
2. The Domain Name and Registrar
The disputed domain name <pineapplesdulcemaria.com> is registered with Blue Razor Domains.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 11, 2007. On September 24, 2007, the Center transmitted by email to Blue Razor Domains a request for registrar verification in connection with the domain name at issue. On September 24, 2007, Blue Razor Domains transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on October 4, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was October 24, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 25, 2007.
The Center appointed Mark V.B. Partridge as the sole panelist in this matter on November 12, 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
Complainant is engaged in the sale of pineapples.
Complainant owns three registrations of DULCE MARIA and Design in Panama, Registration Numbers 143,652 (Registered July 8, 2005); 143,890 (Registered July 21, 2005); and 143,671 (Registered March 7, 2006).
Complainant owns trademark applications for DULCE MARIA and Design (Ser. No. 78/648,697) and DULCE MARIA (Ser. No. 78/647,026) in the United States of America.
Complainant operates a website at <www.pineappledulcemaria.com> to advertise its products.
Prior to the commencement of this proceeding the registrar of <www.pineapplesdulcemaria.com> suspended the domain name due to invalid Whois information.
The domain name <pineapplesdulcemaria.com> was registered on January 31, 2006.
5. Parties’ Contentions
In January 2006, Complainant requested its webmaster to register the domain <pineapplesdulcemaria.com>. The webmaster contacted a woman named Taya who agreed to register the domain name and host the website “pineapplesdulcemaria.com”. The domain <pineapplesdulcemaria.com> should have been registered in the name of El Establo S.A. but instead was registered in the name of Miroljub Petrovic.
In June 2006, the website “pineapplesdulcesmaria.com” developed hosting problems and went inactive. Complainant repeatedly attempted to contact Mr. Petrovic to resolve the hosting issues but to no avail.
After repeated attempts to contact either Mr. Petrovic or Taya, Complainant received a response from Taya in which she refused to either transfer the domain to Complainant or to allow Complainant to host its website at the domain name <pineapplesdulcemaria.com>.
In December 2006, Taya told Complainant she was planning on renewing the domain name in February 2007 because she did not want Complainant to gain control of the domain. Since February 2007 the website located at the domain <pineapplesdulcemaria.com> has been inactive.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 14 of the Rules provides in the event of default that the Panel “may draw such inferences therefrom as it considers appropriate.”
Paragraph 15(a) of the Rules instructs the Panel that “A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules or principles of law that it deems applicable.”
Where a party fails to present evidence in its control, the Panel may draw adverse inferences regarding those facts. Time Equipment Corp. v. Stage Presence WIPO Case No. D2003-0850 (December 23, 2003); Express Scripts, Inc. v. Roy Duke, WIPO Case No. D2003-0829 (February 26, 2003); Mondich v. Brown, WIPO Case No. D2000-0004 (February 16, 2000).
Here, since Respondent has defaulted, it is therefore appropriate to accept the facts asserted by Complainant and to draw adverse inferences of fact against Respondent where the Panel deems appropriate.
A. Identical or Confusingly Similar
Complainant has demonstrated that it owns trademark rights in the DULCE MARIA mark based on prior use and registration in its home country of Panama. The disputed domain name adds only the descriptive “pineapples”. Based on evidence provided by Complainant, its primary business is the export of pineapples. Therefore, the Panel concludes that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
B. Rights or Legitimate Interests
According to Complainant, in January 2006, its webmaster was directed to obtain the disputed domain name and provide hosting services for the Complainant. Complainant noticed the domain name was registered on January 31, 2006, in the name of Miroljub Petrovic. When Complainant informed its webmaster of the discrepancy, the webmaster explained that he used the services of a woman named Taya to register the domain name and host the website. Based on evidence provided by Complainant, the woman’s surname is Petrovic, the same as Respondent’s.
From January 2006 until June 2006, the domain name directed Internet users to Complainant’s website. Then the site became inactive. For the next five months, Complainant attempted to contact Respondent and Taya to resolve the hosting issues. In November 2006, Taya Petrovic responded to Complainant’s inquires and stated “she was trying to get it (the website) back online asap.” In December 2006, the Complainant contacted Taya in a chat room about the disputed domain name. Taya stated she was going to renew the domain name because she wanted Complainant “to lost it (sic).” Respondent does not deny these allegations.
Given the Respondent’s default, and the reasonable inferences flowing from that default, the Panel finds that Respondent lacks any rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
It appears that the Complainant’s webmaster hired Taya Petrovic to register the disputed domain name on Complainant’s behalf and to host Complainant’s website. Contrary to that expectation, the disputed domain name was registered in the name of Respondent. When Complainant learned that the domain name was registered in another’s name, it tried to contact the registrant without success. As a result, the Registrar suspended the disputed domain name due to invalid registration information.
Respondent has, of course, defaulted and provided no explanation for its registration and use of the disputed domain name. Although the facts are necessarily murky, given that much of the necessary information is known only to Respondent and Taya Petrovic, it is reasonable to infer that Taya Petrovic is related to the Respondent, or an agent for the Respondent, and that the disputed domain name was registered in bad faith contrary to the expectations and instructions of Complainant.
The combination of the passive holding of the domain name; the providing of false and/or misleading information in connection with the registration of the domain name, and the absence of any basis for a finding of good faith leads to the further conclusion that Respondent has used the domain name in bad faith to interfere with Complainant’s advertising of its business.
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, <pineapplesdulcemaria.com> be transferred to Complainant.
Mark V.B. Partridge
Dated: November 27, 2007