WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ria Blades, S.A. v. Davi Montero
Case No. D2011-1859
1. The Parties
The Complainant is Ria Blades S.A. of Vagos, Portugal, represented by FCB&A Sociedade de Advogados, Portugal.
The Respondent is Davi Montero of Porto, Portugal.
2. The Domain Name and Registrar
The disputed domain name <riablades.com> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 26, 2011. On October 31, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On the same date, GoDaddy.com, Inc. 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” or “UDRP”), 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 November 2, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 22, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 23, 2011.
The Center appointed Nuno Cruz as the sole panelist in this matter on November 29, 2011. 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 Complainant is a Portuguese company created in September 2007, and which is engaged in the manufacture of blades for wind energy generators, a product developed by REpower Systems to be installed on their MM92 machines.
The Complainant provided proof of ownership of the licence to use and register the Portuguese trademark No. 446.097, consisting of the word “Ria Blades” and a design. This registration was applied for on March 13, 2009 and granted on June 4, 2009 to designate products in class 7..
The trademark holder is REPower Systems AG. The Complainant has entered into a trademark use and development license agreement with REPower Systems AG which entitles it to protect and to defend the trademark from any unlawful use or infringement by unauthorized third parties, notably to file and to pursue any claims or proceedings, of judicial or administrative nature, regarding the unlawful of the trademark by any unauthorized third party (Annex 5 of the Complaint).
The Complainant is also the owner of the domain name <riablades.pt>, registered on May 24, 2010.
The disputed domain name <riablades.com> was registered on March 11, 2011.
The facts stated below were alleged by the Complainant and not refuted by the Respondent.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant contends that the disputed domain name was registered and is being use in bad faith. In fact, the Complainant alleges that it cannot, for itself and for the group within which it operates, allow that defamatory or libellous statements be made and go unpunished.
Finally, it also states that the website at the disputed domain name displays allegations that can be highly prejudicial and defamatory for the Complainant’s good name and reputation and clearly provide grounds for the fact that the disputed domain name is being used in bad faith.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Scope of the Policy
Paragraph 15(a) of the Rules provides that the panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the panel deems applicable.
Paragraph 4(a) of the Policy requires that the complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:
(i) 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) The respondent has no rights or legitimate interests with respect to the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a domain name is deemed to be in bad faith, but does not limit a finding of bad faith to only these situations.
Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in the domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often impossible task of proving a negative requiring information that is primarily if not exclusively within the knowledge of the respondent. Thus, the consensus view is that paragraph 4(c) shifts the burden to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing. See, e.g. Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
B. Identical or Confusingly Similar
The disputed domain name is confusingly similar to the Complainant’s trademark RIA BLADES, taking into account that the disputed domaina name reproduces in full the verbal element of the said trademark, for the purposes of paragraph 4(a)(i) of the Policy.
C. Rights or Legitimate Interests
The second element to establish is that the respondent has no rights or legitimate interests in respect of a domain name (Policy, paragraph 4(a)(ii).
Pursuant to paragraph 4(c) of the Policy, the respondent may establish rights to or legitimate interests in a domain name by demonstrating any of the following:
(i) before any notice to it of the dispute, the respondent’s 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) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or
(iii) 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.
First of all, it must be stressed that some UDRP panels have held that a respondent’s lack of response may be construed as an admission that the respondent has no rights or legitimate interests in a domain name. See, e.g., Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624. Other UDRP panels note that appropriate inferences may be drawn from a respondent’s failure to reply. See, e.g., Charles Jourdan Holding AG v. AAIM , WIPO Case No. D2000-0403.
In this case, the Respondent has not submitted a formal response to the Complaint, and in the absence of any such submission this Panel may accept all reasonable inferences and allegations included in the Complaint as true. See Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009. In any event, the Panel has carefully reviewed the record in this case, and finds nothing therein that would bring the Respondent’s registration and use of the disputed domain name within any of the requirements of paragraph 4(c) of the Policy.
As noted above, once the Complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, paragraph 4(c) shifts the burden to the Respondent to come forward with evidence of rights or legitimate interests in the disputed domain name.
After analysing the record of this case, the Panel finds that a prima facie showing under paragraph 4(a)(ii) has been made.
It is uncontested that the Respondent has not been authorized to use the Complainant’s trademark on the Respondent’s website or to appropriate its trademark for use as a domain name, and there is no indication that the Respondent has ever been commonly known by the disputed domain name.
In fact, in this Panel’s view, the intention of the Respondent for the disputed domain name is merely to attract consumers to its website in order to defame the image of the Complainant.
This Panel notes that the content of the website at the disputed domain name is as follows (in Portuguese): “Work at Ria Blades
If you see for a prosperous job this is the right place, where at least the renewable energies are out in force; however, be prepared to breathe microfibers 8 hours a day and being in contact with highly toxic and hazardous products…”.
This Panel finds that the right to criticize does not necessarily extend to registering and using a domain name that is identical or confusing similar to the Complainant’s trademark. (See paragraph 2.4 of the WIPO Overview 2.0).
In view of the above, there is no evidence either that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
Therefore, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) circumstances indicating that the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) circumstances indicating that the respondent intentionally is using the domain name in an attempt to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.
The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant is seeking to profit from and exploit the trademark of another. See Match.com, LP v. Bill Zag and NWLAWS.ORG, WIPO Case No. D2004-0230.
There is no indication in the record that the Respondent has been commonly known by the disputed domain name.
In this Panel’s view, what can be seen is that the Respondent created a website at the disputed domain name with the single purpose of defaming the image of the Respondent.
The Panel deems that although the Respondent does not obtain a commercial gain from the website at the disputed domain name, the type of allegations made thereon is highly prejudicial and defamatory for the Complainant’s name and reputation.
Accordingly, the Panel finds that the Complainant has met the requirements of paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <riablades.com> be transferred to the Complainant.
Dated: December 28, 2011