WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Excellence Resorts N.V. v. Media Insight
Case No. D2012-2497
1. The Parties
Complainant is Excellence Resorts N.V. of Curacao, Netherlands Antilles, Overseas Territory of the Kingdom of the Netherlands, represented by Luis Marco & Pomares Abogados, Spain.
Respondent is Media Insight of Florida, United States of America, represented by Gaebe, Mullen, Antonelli & Dimatteo, United States of America.
2. The Domain Names and Registrar
The disputed domain names are <excellenceplayamujeresresort.com>, <excellencepuntacanaresort.com> and <excellencerivieracancunresort.com> which are registered with Melbourne IT Ltd (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 18, 2012. On December 18, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 20, 2012, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on January 4, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was January 24, 2013. On January 25, 2013 the Center notified the parties about the commencement of the panel appointment process. On January 27 and January 28, 2013, the Center received two email communications from Respondent, whereby it submitted a response along with annexes. On the same dates, the Center acknowledged receipt of Respondent’s email communications, reminded Respondent that the due date for response was January 24, 2013 and informed that the communications would be transmitted to the Panel, once appointed, for its sole consideration and further procedural steps, if any.
The Center appointed Gerardo Saavedra as the sole panelist in this matter on February 5, 2013. This Panel finds that it was properly constituted. This 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 hotel business and has hotel resorts at Punta Cana, Dominican Republic, and Cancun and Playa Mujeres, Mexico.
Complainant has rights over the EXCELLENCE GROUP LUXURY RESORTS trademark, registration No. 1,032,421 in class 25, application date February 27, 2007, registered in March 2008; and registration No. 1056550 in class 41, application date February 27, 2007, registered in August 2008, both with the Mexican Institute of Industrial Property. Complainant also has rights over the (i) EXCELLENCE GROUP, LUXURY RESORTS and design trademark, registration No. 158241 and (ii) EXCELLENCE PUNTA CANA DOMINICAN REPUBLIC and design trademark, registration No. 158229, both in classes 39, 41 and 43, registered in December 2006, with the National Office of Industrial Property of Dominican Republic.
Excellence Resorts BV has rights over the EXCELLENCE GROUP LUXURY RESORTS and design trademark, registration No. 968,730 in class 36, application date August 30, 2006, registered in January 2007; and registration No. 973115 in class 44, application date August 30, 2006, registered in February 2007, both with the Mexican Institute of Industrial Property.
Complainant is the registrant of the domain name <excellence-resorts.com> which was created on October 4, 2005.
Media Insight, a Florida company incorporated in 2004, is the media division of Vacation Store. The latter is a wholesale tour operator that provides tour packages for travel to destinations outside of the United States of America. G. Alvarez is the President of Media Insight and was Vice President of Vacation Store.
G. Alvarez has rights over the EXCELLENCERIVIERAMAYA.COM trademark, registration No. 3821826 in class 43, application date December 31, 2009, registered in July 2010, and the EXCELLENCERESORTPUNTACANA.COM trademark, registration No. 3844935 in class 43, application date February 5, 2010, registered in September 2010, both with the United States Patent and Trademark Office.
According to the Registrar’s verification response, the disputed domain names were created as follows: <excellenceplayamujeresresort.com> on August 1, 2006, <excellencepuntacanaresort.com> on April 29, 2006, and <excellencerivieracancunresort.com> on March 11, 2006.
5. Parties’ Contentions
Complainant’s contentions may be summarized as follows:
Since 2004, when Complainant began as hotelier, it started to identify its practice using EXCELLENCE GROUP LUXURY RESORTS with a logo (a stylized star). Complainant has always been connected to hotel services and has always presented and published its services under its own name as a guarantee of the quality of the hotel services that it provides.
Complainant’s hotels are located in the Caribbean: in Mexico (Playa Mujeres and Riviera Cancun) in Dominican Republic (Punta Cana) and Jamaica (Oyster Bay).
In March, April and August 2006, Respondent acquired the disputed domain names. The content of the web sites associated to the disputed domain names show identical or similar mixed marks to those used by Complainant to identify its hotels, thus resulting in Respondent attempting to mislead consumers.
The disputed domain names are similar, almost identical, visually and aurally, to Complainant’s trademark since they include the most distinctive part of Complainant’s trademark, the “excellence” and “resorts” words in their totality. The disputed domain names most distinctive elements are those words. The word “excellence” is placed at the beginning of the disputed domain names and it is well established that the beginning of the trademarks and signs attract consumer's attention more. The word “resorts” is a clear reference to hotel services and is therefore descriptive thereof.
Respondent is using in the websites associated to the disputed domain names contents and logos identical to those used by Complainant, with the sole purpose of attracting consumers and take advantage of the reputation and goodwill of Complainant’s trademarks (screenshots of such websites attached to the Complaint).
Respondent has no rights or legitimate interests in respect of the disputed domain names. It is uncontroverted that Respondent is not affiliated with Complainant and has not been authorized to use Complainant’s trademarks. Respondent has not acquired any trademark or service mark rights and has no relation with Complainant’s name. Respondent's name is G. Alvarez, consequently, there is no evidence that Respondent has been commonly known by the disputed domain names. Independently to the communications and negotiations with Respondent, Mr. Alvarez has never provided Complainant with evidence of his rights or legitimate interests in registering or using the disputed domain names. In spite of that, Respondent has offered to sell the disputed domain names.
The trademark EXCELLENCE GROUP LUXURY RESORTS and the domain name <excellence-resorts.com> are not fanciful terms and have no other common meaning than Complainant’s names and trademark.
The disputed domain names were registered and are being used in bad faith. Bad faith is credited when the author of the application for registration as a domain name of a sign has knowledge of the use of an identical or similar sign for identical or similar goods or services by a competitor who has obtained an acquired right.
The disputed domain names were registered and/or maintained for the sole purpose of selling them to Complainant, its competitors or other interested parties.
By using the disputed domain names, Respondent intentionally attempted to attract, for commercial gain, Internet users to another on-line location, by creating a likelihood of confusion with Complainant’s trademarks. The disputed domain names contain links to other websites for Mexican hotels firms. Respondent is making a non-legitimate use of the disputed domain names by using them with the intent to mislead and for commercial gain by diverting consumers through links to competing Mexican hotels firms, which has been found by previous panels to be an illegitimate noncommercial and a non-fair use of a domain name, since Respondent obviously knew or should have known of Complainant’s rights.
Respondent owns other domain names, thus, it is expected that someone dealing with domain names on a regular basis should be familiar with the due process related to domain names and trademarks, in order to avoid using someone else’s right in connection with a domain name. In this case, it is reasonable to expect that Respondent knew or at least should have known of Complainant’s rights conflicting with the disputed domain names. This is a clear case of willful blindness on the part of Respondent.
Complainant requests the transfer of the disputed domain names.
Respondent’s contentions may be summarized as follows:
Vacation Store is a wholesale tour operator that provides tour packages for travel to destinations outside of the United States of America. The packages are sold to retail travel agencies and/or retail customers. The travel packages consist of air (either commercial or charter flights), land (hotel accommodations), and ground transfers to and from the airports and hotels. Wholesale tour operators have contractual and business relationships with various airlines, hotels, transportation companies, and tour companies. Wholesale tour operators are able to make a profit by putting together their services into travel packages, and selling the packages to the various travel agencies at an increased rate. Respondent does not own, control, operate, or otherwise have business interest in any hotels.
Vacation Store began a media division in the year 2000. On that year, or shortly thereafter, Vacation Store began registering various domain names. In 2003 Vacation Store formally named its media division as Media Insight. At that time, Respondent began registering domain names as Vacation Store d/b/a Media Insight. In 2004, Vacation Store incorporated its media division in the State of Florida, which became known as Media Insight, Inc. (in the Response, “Respondent” means both Media Insight and Vacation Store).
Vacation Store and Complainant have had a long standing business relationship including contracts that began in 2006. The contracts provided for reduced rates due to the large number of rooms that Vacation Store books for Complainant. As a tour operator, Respondent books rooms for various hotels. The websites associated to the disputed domain names do not divert users from Complainant’s business, rather result in substantial bookings to Complainant’s business. The record is devoid of any evidence that suggests that Respondent seeks to disrupt Complainant’s business. At no time has Respondent diverted any business from Complainant.
Respondent has had business dealings with Complainant for over 8 years. Throughout that time, Respondent has operated web pages on behalf of Complainant. Complainant authorized Respondent to use the web pages associated to the disputed domain names and approved Respondent’s use of the web pages.
Complainant has been aware of the use of the disputed domain names for a substantial period of time, requested changes to be made in the web pages, and provided photos and fact sheets to use in the disputed domain names websites, with specific reference to the disputed domain names (communications attached to the Response). In October 2008, Complainant’s representative sent to Vacation Store an email confirming the discussion and the proposed changes to the webpages. During the pertinent time periods, based upon the emails, it is apparent that Complainant knew of the use of the disputed domain names, authorized their use by Respondent, and received economic benefits as reflected in such October email discussing price mark ups that were contained in the webpages.
Respondent was responsible for the overall page structure of the websites associated to the disputed domain names. However, the photos and other promotional material were provided by Complainant to Respondent. Complainant provided to Respondent access to Complainant’s copyrighted materials, and enabled Respondent to obtain Complainant’s marks and logos directly from Complainant. Complainant has authorized and recognized Respondent as the owner of the disputed domain names websites. Complainant cannot claim that it had not authorized, and was unaware of Respondent’s use of the disputed domain names. The burden of proving that Respondent lacks rights of legitimate interests in respect of the disputed domain names rests completely on Complainant, and since Respondent was authorized by Complainant to use the disputed domain names, Complainant has failed to prove that Respondent lacks rights or legitimate interests.
There is no bad faith where a domain name is registered for use in conjunction with the bona fide offering of services. Where that exists, a respondent has rights or legitimate interests in the domain names. Respondent has registered a domain name in conjunction with the bona fide offering of services. In fact, Respondent sold Complainant’s hotel rooms pursuant to contracts.
The majority of panels have held that where a domain name registrant has legitimate interest in a domain name which incorporates a complainant’s mark, the domain name should not be transferred to the complainant. The UDRP specifically provides that there are circumstances which will establish the registrant’s rights to or legitimate interests in a domain name if prior to receipt of the notice of dispute, the registrant had used the domain name or a name corresponding to the domain name in connection with a bona fide offer of goods and services. Here it is undisputed that Respondent has used the disputed domain names for 8 years prior to any reactions from Complainant.
It is apparent that Respondent believed and had reasonable grounds to believe that the use of the disputed domain names was fair use and otherwise lawful. Nor is there anything that would indicate that Vacation Store was not authorized to use Complainant's marks and logos, since Complainant provided the marks and logos to use.
Like for the respondent in Adaptive Molecular Techs, Inc. v. Woodward, WIPO Case No. D2000-0006, the panel could not and should not determine whether the registrant had rights in the disputed domain name. Based upon the evidence presented by Respondent, issues as to acquiescence and fair use have arisen. Those issues require full analysis of all the facts, and are issues reserved for a Court.
Based upon the relationship of the Parties, the use constitutes fair use. Respondent believes that based upon the evidence, the panel should rule in Respondent's favor. Based upon past UDRP decisions, Respondent believes that if this Panel were inclined to rule in Complainant’s favor that the Panel should not and cannot rule on questions of legitimate use, since panels have held that if the question of legitimate use turns on facts, that the panels should not decide these cases, rather they should be decided by the Courts.
Equity dictates against Complainant now attempting to take over the disputed domain names and webpages that Respondent has spent years promoting. Respondent maintains that it has established rights for legitimate interest in the disputed domain names since Respondent was using the disputed domain names in connection with a bona fide offering of goods and services, mainly as a reseller of Complainant's hotel services.
In Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903, respondent was an authorized dealer (reseller) of complainant, and registered domain names which incorporated complainant’s trademark. The panel concluded that the use of the manufacturer's trademark as domain name by an authorized dealer or reseller is deemed a bona fide offering of goods or services. Since Respondent is a reseller of Complainant’s hotels, Respondent is permitted to use the disputed domain names.
The disputed domain names were not registered and used in bad faith.
The registration must be made in bad faith. If the registrant registers the domain name for any reason other than that with bad faith, a complainant cannot prevail. Complainant has failed to present any evidence which would contradict the arguments raised in the Response or would demonstrate bad faith. Complainant has simply repeated or paraphrased the criteria used in conclusory statements without any evidence or facts to support its position. Complainant has failed to submit documents or statements that support its claims. At best, Complainant submits bald allegations. Complainant has failed to present any evidence which would indicate that Respondent was attempting to disrupt Complainant’s business.
Complainant alleges that the disputed domain names were registered for the sole purpose of selling them to Complainant, its competitors, or other interested parties, without offering any proof. In this case, Registrant has never offered to sell the disputed domain names. The disputed domain names were registered two years before Complainant ever registered its trademark in Mexico, and there is no evidence of any discussions regarding the sale of the disputed domain names.
There is absolutely no evidence that Respondent used the disputed domain names in bad faith.
Complainant correctly acknowledges that Respondent registered the disputed domain names between March and July of 2006. What Complainant fails to present is that its trademark was not registered in Mexico until 2008, and was not registered in Santo Domingo until 2012. In fact, Complainant was not incorporated until January 2007. There are decisions supporting the view that a trademark that did not exist at the time the disputed domain name was registered cannot serve as a basis for claim under the Policy, since it is impossible for the domain name to have been registered in bad faith. The evidence establishes that the disputed domain names had been registered two years prior to the registration of Complainant’s trademark in Mexico in 2008. The evidence also shows that by the time of the registration of Complainants trademark in 2008, Complainant was well aware of the use of the disputed domain names by Respondent, had approved of the use of them by Respondent and had supplied content to Respondent for use on the corresponding web pages.
There is nothing in Complainant’s articles of incorporation or trademarks indicating that its trademarks were registered for travel services, making reservations, and bookings, or making hotel and lodging reservations.
Respondent does own the trademarks EXCELLENCERIVIERAMAYA.COM and EXCELLENCEPUNTACANA.COM, which are registered with the United States Patent and Trademark office. Their first use was April 29, 2006. The panels have recognized that a respondent’s registration of a trademark which corresponds to a disputed domain name normally establishes respondent’s rights of legitimate interest in that domain name for the purpose of the second element of the UDRP.
Complainant states that Respondent has not acquired any trademark or services trademark rights. Complainant is well aware that it is simply not true, based on Respondent’s letter dated January 9, 2012 that Respondent sent to Complainant for violation of Respondent's trademarks and which Complainant did not respond. Such marks are for travel services, namely making reservations and bookings for temporary lodging; and making reservations via a global computer network.
Respondent should be considered as having rights or legitimate interests in the disputed domain names. It obtained those rights through contracts and authorizations with Complainant. The evidence fails to demonstrate any bad faith.
Complainant has done nothing in a timely matter to protect its alleged exclusive interest in the disputed domain names. In fact, Complainant encouraged Respondent to operate and build up the disputed domain names and websites, since Complainant received income from the sale of the hotel rooms promoted therein. Complainant continues to do so today. In light of the knowledge that Complainant has had of Registrant’s use of the disputed domain names, Complainant’s should be barred. Equitable considerations would dictate against Complainant prevailing in this matter. Equity dictates against Complainant now attempting to take over the disputed domain names that Respondent has spent eight (8) years promoting.
Respondent requests that the remedy requested by Complainant be denied.
6. Discussion and Findings
A. Late Response and Respondent Identity
On January 25, 2013, the Center sent an email communication to Respondent pointing out that the Center had received no formal Response within the due date (January 24, 2013) and would initiate the Panel appointment process. On January 27, 2013, the Center received an email communication from Respondent stating that they had sent the Response on January 24, 2013, and attaching thereto a copy of the Response with its exhibits. From such email communications it was apparent that Respondent had sent the Response on January 24, 2013, to an incorrect email address (“@wipo.net” instead of “@wipo.int”). Although the Response was received by the Center after the due date, in view of the foregoing, this Panel has decided to take into account such Response.1
As set forth above, according to the WhoIs report for the disputed domain names provided as an exhibit to the Complaint and by the concerned Registrar in its verification response, the registrant of record of the disputed domain names appears to be Media Insight (also appearing as Media Insights). Complainant filed its Complaint against Respondent and G. Alvarez, who appears just as administrative and technical contact for the disputed domain name <excellenceplayamujeresresort.com>. Pursuant to paragraph 1 of the Rules “Respondent means the holder of a domain-name registration against which a complaint is initiated”. Thus this Panel decides to have only the named Respondent Media Insight (also appearing as Media Insights) as the proper respondent.
B. Other Preliminary Issues
Paragraph 15(a) of the Rules instructs this Panel to decide the Complaint on the grounds of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
The burden for Complainant, under paragraph 4(a) of the Policy, is to show:2 (i) that each disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) that Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) each disputed domain name has been registered and is being used in bad faith.
In examining the Complaint and its annexes, this Panel wonders whether Complainant could have put forward stronger arguments and more evidence in support of its Complaint.3
Respondent argues that the evidence Respondent presented raises issues as to acquiesence or fair use or legitimate use of the disputed domain names, which issues require full analysis of all the facts and are reserved for a Court. Respondent goes on to contend that if this Panel were inclined to rule in Complainant’s favor, that this Panel should not and cannot rule on questions of legitimate use. This Panel disagrees with Respondent’s contentions.
Respondent relies on Adaptive Molecular Techs, Inc. v. Woodward, WIPO Case No. D2000-0006, E. I. du Pont de Nemours and Company v. Avant Garde Composition, WIPO Case No. D2000-0130, and Bridgestone Firestone, Inc., Bridgestone/Firestone Research, Inc., and Bridgestone Corporation v. Jack Myers, WIPO Case No. D2000-0190. However, in all those case the panels rendered a decision under the Policy and the Rules and based on the arguments and evidence submitted by the parties thereto.
In connection with the aforesaid, it is well established that the Policy was designed to deal with abusive domain name registrations only and not with other disputes pertaining to trademark infringements. Issues relating to acquiesence or fair use or legitimate use of domain names are within the scope of the Policy, although subject to its purpose and tight procedure limitations. As set forth in other UDRP panel decisions, the Policy does not confer trademark owners the right to request transfer of domain names identical or confusingly similar to a trademark where the conditions of paragraphs 4(a)(ii) and (iii) are not met; the Policy does not recognize that such cases are cases of abusive domain name registration that should be addressed by an administrative proceeding such as the present one.4
C. Identical or Confusingly Similar
It is undisputed that Complainant has rights over the EXCELLENCE GROUP LUXURY RESORTS trademark.
The disputed domain names entirely incorporate the words “excellence” and “resort”, adding in between the characters “playamujeres”, “puntacana” and “rivieracancun”, respectively, which are geographic references to the location of Complainant’s hotel resorts. The addition of such geographic terms is not enough to avoid similarity, nor does it add anything to avoid confusion. Prior UDRP panel decisions support this Panel’s view (see PepsiCo, Inc. v. Kieran McGarry, WIPO Case No. D2005-0629; Volvo Trademark Holding AB v. SC-RAD Inc., WIPO Case No. D2003-0601; Viacom International Inc. v. Emperor Sedusa, WIPO Case No. D2001-1438).
Therefore, this Panel finds that each disputed domain name is confusingly similar to Complainant’s trademark.
D. Rights or Legitimate Interests
Complainant alleged that Respondent has no rights or legitimate interests in respect of the disputed domain names.5
Respondent argues that the disputed domain names are used to obtain reservations for Complainant’s hotels, based on a contractual relationship between Complainant and Vacation Store. However, no copy of those contracts was supplied by either party. Further, the Complaint makes no reference to such business relationship at all (aside from a vague statement of “independently with our communications and negotiations with the Respondent” that gives no light on the nature and scope of such communications and negotiations).
Respondent claims to be the owner of the trademarks EXCELLENCERIVIERAMAYA.COM and EXCELLENCERESORTPUNTACANA.COM, registered in July and September 2010, respectively, both with the United States Patent and Trademark Office. However, those trademarks are registered in the name of G. Alvarez, who appears to be an officer of Media Insight and a former officer of Vacation Store. Respondent contends that prior UDRP panel decisions have sustained that such a trademark registration normally establishes respondent’s rights or legitimate interests in a disputed domain name.
This Panel is aware of such prior UDRP panel decisions.6 In the case at hand it is uncontroverted that Complainant has used its trademarks since 2004, having acquired the domain name <excellence-resorts.com> and registered its relevant trademarks long before G. Alvarez proceed to obtain such trademark registrations in 2010. This Panel notices that such trademarks registered by G. Alvarez do not correspond in their entirety to any of the disputed domain names. Further, Respondent expressly stated to have had business dealings with Complainant since 8 years ago and that Complainant supplied Respondent with materials for the disputed domain names websites. There is no evidence that Complainant had consented on the registration of such trademarks by G. Alvarez. Although the registration of such trademarks by G. Alvarez looks somewhat suspicious to this Panel, it is not within the scope of the Policy to examine the validity of such trademark registrations. However, within the scope of the Policy, it is for this Panel to decide on the weight of the evidence submitted by the Parties (Rules, paragraph 10). In brief, taking into consideration the business relationship between Complainant and Vacation Store, this Panel considers that registration of such trademarks by G. Alvarez does not itself confer rights or legitimate interests in the disputed domain names to Respondent in this particular case.7
Respondent asserts to have had dealings with Complainant since 8 years ago (i.e. since 2004/2005), that Complainant consented to the use of the disputed domain names by Respondent and that Complainant supplied Respondent with materials for the disputed domain names websites.
Respondent supplied 3 communications between Complainant and Vacation Store, dated between June and October 2008, which show that (i) both had a business relationship at that time (specific reference to certain 2008-2009 contracts), (ii) Complainant asked Vacation Store to use certain pictures, fact sheets and rates in the websites corresponding to the disputed domain names, (iii) Complainant asked the websites be reviewed, and (iv) Complainant asked that the logo of Secrets Excellence be deleted from the Evacationtours’ website.
In this Panel’s view, the evidence in the present case shows that Complainant was aware of the registration and use of the disputed domain names since at least 2008, from which it may be inferred that Complainant tacitly acquiesced to such registration and use. Moreover, more than 4 years have elapsed since 2008 (time of those communications provided by Respondent) without Complainant having taken any action against Respondent, which further reinforces the inference in the present case that Complainant acquiesced to such registration and use. Further, it troubles this Panel that Complainant had not disclosed that business relationship, or the fact that (and extent to which) Complainant acquiesced to the use of the disputed domain names by Respondent.
Complainant asserts that the websites associated to the disputed domain names contain links to other websites associated to competing hotels. The screenshots of the disputed domain names websites supplied by Complainant do not show, on their face, advertisements of competing hotels. The screenshot corresponding to the <excellenceplayamujeresresort.com> website shows a heading, among others, for “<evacationtours.com>” which might be a link to another website. However, Complainant did not submit any evidence on whether such heading (or any other) in fact redirects to another website and, if this is the case, the contents of such other website in order for this Panel to evaluate the merits of its contention. Further, as set forth above, the evidence submitted by Respondent shows that Complainant was aware of Evacationtours’ website and its contents. This Panel reiterates that it is Complainant’s responsibility to present its case, with appropriate arguments and supporting evidence. Generally, it is not this Panel’s role to look for evidence not supplied by the parties.8
Because the evidence on the present record shows that Complainant encouraged or endorsed or otherwise acquiesced to the disputed domain names’ use by Respondent, and Complainant provided no explanation on that, this Panel finds that, based on the available record in the present case, Complainant has failed to prove Respondent’s lack of rights or legitimate interests in the disputed domain names.9
In the aggregate, this Panel finds that Complainant failed under paragraph 4(a)(ii) of the Policy.
Given the aforesaid, this Panel considers unnecessary to discuss whether Complainant might have succeeded under 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 Complaint is denied.
Date: February 19, 2013
1 See Internationale Spar Centrale B.V. v. Scientific Process & Research, Inc., WIPO Case No. D2005-0603 and AIB-Vincotte Belgium ASBL, AIB-Vincotte USA Inc./Corporation Texas v. Guillermo Lozada, Jr., WIPO Case No. D2005-0485.
2 See Koninklijke Philips Electronics N.V. v. Relson Limited, WIPO Case No. DWS2001-0003: “Each of the three stated elements are made up of a number of facts, each of which has to be proven in order for the Complainant to succeed [...] Facts are proven through evidence [...] Mere “assertions” are nothing more than argument and must in each case be based on facts proved through evidence”.
3 In The Skin Store, Inc. v. eSkinStore.com, WIPO Case No. D2004-0661, it was established: “The [p]anel suspects [...] that further evidence could have been produced, but it is not the job of the [p]anel to hunt it out”. See also GA Modefine S.A. v. Sparco P/L, WIPO Case No. D2000-0419.
5 See item 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, available at www.wipo.int/amc/en/domains/search/overview2.0/index.html.
6 See item 2.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, supra.
8 That is particularly true where parties have legal counsel at their side, who have the responsibility of collecting and presenting all evidence reasonably available to them.
9 See Caracol Primera Cadena Radial Colombiana S.A. d/b/a Caracol S.A. v. Diego Rubiano, WIPO Case No. D2003-0948: “Because Complainant encouraged or endorsed the domain name’s use by Respondent, the former has failed to prove such lack of rights or legitimate interest”. See also Celebrity Signatures International, Inc. v. Hera’s Incorporated Iris Linder, WIPO Case No. D2002-0936 and Levantur, S.A. v. Media Insight, WIPO Case No. D2009-0608.