WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Fundación Gala-Salvador Dalí v. Pascal Leemann-Pluot

Case No. DNAME2002-00001

 

1. The Parties

1.1.This Complaint was filed by Fundación Gala-Salvador Dalí, of Figueras, Girona, Spain ("Complainant").

1.2.The respondent is Pascal Leemann-Pluot, of Montclair, New Jersey, United States of America ("Respondent").

 

2. The Registration and Registrar

2.1.The domain name the subject of this complaint is <salvador.dali.name> ("domain name").

2.2.The registrar of this domain name is Alldomains.com, of Pleasant Hill, California, United States of America ("Registrar").

 

3. Procedural History

Issuance of Complaint

3.1.On May 3, 2002, the Complainant by email and by courier submitted to the World Intellectual Property Organization Arbitration and Mediation Center ("WIPO Center") a Complaint made pursuant to the Eligibility Requirements Dispute Resolution Policy for .NAME ("ERDRP"), and under the Rules for Eligibility Requirements Dispute Resolution Policy for .NAME ("ERDRP Rules"), both of which were approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 1, 2001. The Complaint were received by the WIPO Center on May 6, 2002. An Acknowledgement of Receipt of Complaint was sent by the WIPO Center to the Complainant by email on May 14, 2002.

Confirmation of Registration Details

3.2.A Request for Registrar Verification was dispatched by the WIPO Center to the Registrar by email on May 8, 2002. By email to the WIPO Center on the same day, the Registrar confirmed that it had received a copy of the Complaint from the Complainant; confirmed that it was the registrar of the domain name the subject of this Complaint; confirmed that the current registrant of the domain name is the Respondent, and provided a postal address and an email address for the Administration, Technical and Billing Contacts of the registrant; confirmed that the ERDRP applies to the domain name; and stated that the service agreement between it and the registrant is in the English language.

3.3.It subsequently came to the attention of the WIPO Center that registration details provided by the Registrar were not completely consistent with the registration details available from the publicly accessible WHOIS database of the registry for the .NAME domain space, Global Name Registry. Accordingly, the WIPO Center sent another email to the Registrar, requiring re-confirmation of all registration details for the registrant of the domain name. By email sent on June 28, 2002, the Registrar provided new contact details, obtained directly from Global Name Registry. These details matched the contact details obtained by the WIPO Center from the publicly accessible WHOIS database of the registry for the .NAME domain space.

Notification to the Respondent

3.4.On May 16, 2002, having verified that the Complaint satisfied the formal requirements of the ERDRP and the ERDRP Rules, and that payment of the filing fee had been properly made, the WIPO Center issued to the Respondent a Notification of Complaint and Commencement of Administrative Proceeding. This Notification was sent to the postal address of the registrant obtained from the WHOIS database of the registry for the .NAME domain space; to the facsimile numbers and email addresses of the Administration, Technical and Billing contacts of the registrant obtained from the WHOIS database of the registry for the .NAME domain space; and to the email address <postmaster@salvador.dali.name>. The transmissions to the facsimile numbers of the Administrative and Billing contacts of the registrant, and to the email address <postmaster@salvador.dali.name>, were not successful. Further, the courier records disclose that the dispatch to the postal address of the registrant failed due to "incorrect address". However, both the transmissions to the facsimile number of the Technical contact of the registrant, and to the email addresses of the Administrative, Technical and Billing contacts of the registrant, appear to have been successful.

3.5.Having reviewed the Case File in this matter, this Administrative Panel finds that the WIPO Center has discharged its responsibility under paragraph 2(a) of the ERDRP Rules "to employ reasonably available means calculated to achieve actual notice to Respondent".

Filing of Response

3.6.The Respondent did not file a Response by the due date. As at the date of this decision, no communication has been received from the Respondent.

3.7.On June 11, 2002, the WIPO Center sent to the Respondent by email a Notification of Respondent Default.

Constitution of Administrative Panel

3.8.In accordance with the request in the Complaint, the WIPO Center proceeded to appoint a single Panelist, and invited Andrew F. Christie to so act. On June 14, 2002, the WIPO Center issued to both parties a Notification of Appointment of Administrative Panel and Projected Decision Date, stating that Dr. Christie had submitted a Statement of Acceptance and Declaration of Impartiality and Independence and had been appointed the sole Panelist in this case. The case before this Administrative Panel was conducted in the English language, this being the language of the registration agreement applicable to the domain name in issue.

Compliance with the formalities of the ERDRP and the ERDRP Rules

3.9.Having reviewed the Case File in this matter, this Administrative Panel concurs with the assessment by the WIPO Center that the Complaint complies with the formal requirements of the ERDRP and ERDRP Rules.

 

4. Factual Background

Complainantís activities

4.1.The Complainant is the depositary entity of the exercise of the intellectual and industrial property rights of the renowned painter Mr Salvador Dalí, whose heir, the Spanish Estate, has granted the exercise of these rights to the Complainant by means of two ministerial orders of the Spanish Estate. Mr Dalí founded the Complainant with its current name, and he entrusted the Complainant with the creation and management of the Museum in Figueras that he called "Teatro Museo Dalí".

Respondentís Activities

4.2.The Respondent registered the domain name as a Personal Name Registration on March 21, 2002. The domain name resolves to a website at http://comingsoon.alldomains.com, which is a website of the Registrar. The Respondent appears to be an individual. No other information is known about the Respondent.

 

5. Partiesí Contentions

Complainant

5.1.The Complainant contends first, that "Salvador Dali" is not the legal name of the Respondent; secondly that "Salvador Dali" is not the name of a fictional character for which the Respondent has trademark or service mark rights; and thirdly, "Salvador Dali" is not the name by which the Respondent is commonly known. Accordingly, the Respondent does not meet the eligibility requirements established in paragraph 1(b) of Appendix L of the .NAME Accreditation Agreement to obtain registration of the domain <salvador.dali.name> as Personal Name Registration.

5.2.The Complainant further contends that, although it is not necessary to the resolution of this dispute, the Complainant can demonstrate it has a legitimate interest and is particularly concerned with the grant of domain name <salvador.dali.name>. This arises because of the following: (i) the Complainant is the depositary entity of the exercise of the intellectual and industrial property rights of Mr. Salvador Dalí; (ii) the Complainant, by virtue of the fact that Mr. Dalí established it with its current name, is expressly entitled to use Mr Dalíís name and surname; and (iii) the Complainant is also entitled to seek protection of itīs trade name on the basis of Article 8 of the Paris Convention for the Protection of Industrial Property, which states that a trade name shall be protected in all the countries of the Union without the obligation of filing or registration, whether or not it forms part of a trademark.

Respondent

5.3.The Respondent did not file a Response.

 

6. Discussion and Findings

6.1.The Respondent has registered the domain name as a Personal Name domain name. The Complainant has brought this Complaint under paragraph 4(a)(i) of the ERDRP, on the ground that the Respondent does not satisfy the Eligibility Requirements for a Personal Name domain name registration.

6.2.Paragraph 4(b) of the EDRP sets out the three facts which the Complainant must prove to succeed in a challenge brought under paragraph 4(a)(i). The three facts are: (i) that the name corresponding to the Registered Name is not the Respondentís legal name; (ii) that the name corresponding to the Registered Name is not the name of a fictional character in which the Respondent has trademark or service mark rights; and (iii) that the Respondent as an individual has not been commonly known by the name corresponding to the Registered Name.

6.3.In relation to the domain name <salvador.dali.name>, the name corresponding to the Registered Name, for the purpose of a challenge under the ERDRP to a Personal Name domain name registration, is "salavador dali".

Respondentís legal name

6.4.According to the Registrar, the registrant of the domain name is "Pascal Leemann-Pluot". In the absence of any evidence to the contrary, it must be assumed that this is the legal name of the Respondent. It is clear, therefore, that "salvador dali" is not the Respondentís legal name. Accordingly, this Panel finds that the Complainant has discharged its burden of proof in relation to paragraph 4(b)(i) of the ERDRP.

Fictional character in which Respondent has trademark or service mark rights

6.5.The Complainant has asserted that "salvador dali" is not the name of a fictional character in which the Respondent has trademark or service mark rights. In the absence of any evidence from the Respondent contrary to this assertion, this Panel finds that the Complainant has discharged its burden of proof in relation to paragraph 4(b)(ii) of the ERDRP.

Name by which Respondent is commonly known

6.6.The Complainant has asserted that "salvador dali" is not the name by which the Respondent has been commonly known. In the absence of any evidence from the Respondent contrary to this assertion, this Panel finds that the Complainant has discharged its burden of proof in relation to paragraph 4(b)(iii) of the ERDRP.

 

7. Decision

7.1.This Administrative Panel decides that the Complainant has proven each of the three elements in paragraph 4(b) of the ERDRP in relation to the domain name the subject of this Complaint.

7.2.Pursuant to paragraph 5(f) of the ERDRP and paragraph 15 of the ERDRP Rules, and in accordance with the request of the Complainant contained in the Complaint, this Administrative Panel requires that the Registrar, Alldomains.com, cancel the domain name <salvador.dali.name>.

 


 

Andrew F. Christie
Sole Panelist

Dated: July 8, 2002