WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Culto GmbH v. Valdaniel Eood / Mr. George At
Case No. D2005-1258
1. The Parties
The Complainant is Culto GmbH, Krummennaab, Germany, represented by Martin Mitlmeier, Germany.
The Respondent is Valdaniel Eood / Mr. George At, London, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <culto.info> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 6, 2005. On December 7, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On December 12, 2005, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on December 15, 2005. The Center verified that the Complaint together with the amendment to 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 December 20, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was January 9, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 6, 2006.
The Center appointed Knud Wallberg as the sole panelist in this matter on January 19, 2006. 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 has registered the trademark CULTO in a number of countries inter alia as a figurative mark under the Madrid system. The international mark was registered on June 6, 2001, under No. 761 816 for goods in classes 6, 20 and 21, which relate to goods of common metal, furniture, mirrors, picture frames, glassware, porcelain and earthenware .
Complainant has also registered many “culto”-domain names worldwide.
5. Parties’ Contentions
A. Complainant
1. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(Policy, para. 4(a)(i), Rules, paras. 3(b)(viii), (b)(ix)(1))
The domain name “www.culto.info” is identical to Complainants trademark.
2. The Respondent has no rights or legitimate interests in respect of the domain name;
(Policy, para. 4(a)(ii), Rules, para. 3(b)(ix)(2))
Complainant was previously the holder of the contested domain name, and despite the fact that Complainant had paid for the registration until October 21, 2005, the Respondent nevertheless was able to register the domain on October 6, 2005.
The respondent has no legitimate rights on the contested domain name, which is identical to Complainants registered trade mark.
3. The domain name was registered and is being used in bad faith.
(Policy, paras. 4(a)(iii), 4(b); Rules, para. 3(b)(ix)(3))
The Respondent has not registered the contested domain name for his own use. Respondent has thus been offering the domain name at www.afternic.com for the best possible price. As the domain name <culto.info> is a very important domain for Complainants business any sale of this domain can cause a very big image loss to Complainant.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide a Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with Paragraph 4(a) of the Policy, Complainant must prove that each of the three following elements are satisfied:
(i) The domain names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain names; and
(iii) The domain names have been registered and are being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with Complainant. At the same time, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate.
A. Identical or Confusingly Similar
The domain name <culto.info> is identical to Complainant’s distinctive trademark. The inclusion of the gTLD denomination “.info” shall be disregarded for the purpose of these proceedings.
The requirements in the Policy, paragraph 4(a)(i) are therefore fulfilled.
B. Rights or Legitimate Interests
Complainant alleges that Respondent has no rights or legitimate interests in the domain names. Respondent has not rebutted this allegation and, based on the record of this case, it is unlikely that any such rights or interests may exist.
Complainant has further not licensed or otherwise permitted Respondent to use its trademark or to apply for any domain name incorporating the mark.
CULTO is, to the best of the Panel’s knowledge, a coined word that has no specific meaning. It can therefore be ruled out that Respondent can claim to use the contested domain name for any generic or informative purpose.
The requirements of the Policy, paragraph 4(a)(ii) and paragraph 4(c) are also considered fulfilled.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy further provides that Complainant must prove registration and use of the domain name in bad faith. Paragraph 4(b) sets out, by way of example, the kind of evidence that may be put forward.
Complainant’s trademark is registered inter alia in the home country of the Respondent, the United Kingdom before Respondent registered the contested domain name. The domain name was previously registered and possibly also used by Complainant. Based on this and on the other facts of the case the Panel is satisfied that the domain name has been registered in bad faith.
The contested domain name is presently not used actively in the sense that it is not used for an active website. However, as first stated in WIPO Case No. D2000-0003 Telstra v. Nuclear Marshmallows and repeated in many subsequent decisions under the UDRP: “the concept of a domain name “being used in bad faith” is not limited to positive action; inaction is within the concept. That is to say, it is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith”.
In this case Complainant has claimed in the Complaint that the contested domain name has been offered for sale by Respondent. Although no positive proof of this has been furnished Respondent has not rebutted this statement. The offering of a registered domain name for sale in situations where you do not have any demonstrable rights or interests in the domain name may be an indication of bad faith.
The Panel finds that the domain name is being used in bad faith.
Considering all the facts and evidence, the Panel finds that the requirements of paragraph 4(a)(iii) of the Policy are met.
7. Decision
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 <culto.info> be transferred to the Complainant.
Knud Wallberg
Sole Panelist
Date: January 27, 2006