WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AREAS, S.A. v. Andres Sanchez Garcia
Case No. D2015-1482
1. The Parties
The Complainant is AREAS, S.A. of Barcelona, Spain, represented by Cabinet Beau de Lomenie, France.
The Respondent is Andres Sanchez Garcia of Sabadell, Spain.
2. The Domain Name and Registrar
The disputed domain name <areas.com> is registered with TLDS L.L.C. d/b/a SRSPlus (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 20, 2015. On August 20, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 21, 2015, the Registrar 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 1, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 21, 2015. The Respondent sent an email to the Center on September 2, 2015 stating that he does not want to lose the disputed domain name and asking for an explanation of the proceeding in Spanish. The Center sent to the Respondent a courtesy translation into Spanish of the notification of the Complaint on September 3, 2015. The Center received a phone call from the Respondent in which he indicated that he was aware of the case. The Center did not receive any Response from the Respondent answering the Complainant's contentions on September 21, 2015.
The Center appointed Alejandro Touriño as the sole panelist in this matter on October 16, 2015. 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.
The Panel issued administrative panel procedural order no. 1 granting the Respondent until November 7, 2015 to submit any response to the Complaint. The Center did not receive any communication from the Respondent on November 7, 2015.
4. Factual Background
The Complainant is a company founded in 1968, specialized in food and beverage services and travel retail, with an international presence in, among other countries, Spain, where the Respondent is based. The Complainant has a workforce of over 9.670 employees and manages 1.111 outlets in concession spaces.
The Complainant is the owner of several trademarks AREAS in different countries. In particular, the Complainant owns the following trademarks with effects in Spain, the country of residence of the Respondent:
- Spanish trademark AREAS n° 1543472 registered on December 2, 1992.
- Spanish trademark AREAS n° 1994643 registered on November 5, 1996.
- Community trademark AREAS n° 001823608 registered on January 22, 2003.
- Community trademark AREAS n° 10541894 registered on June 5, 2012.
The Complainant is the owner of the trade name "AREAS, S. A." since 1969.
The Complainant is also the owner of several domain names containing the trademark AREAS, including the following: <areas-mail.com>, <areas-spain.com>, <areas.biz>, <areas.cat>, <areas.club>, <areas.directory>, <areas.email>, <areas.es>, <areas.eu>, <areas.info>, etc.
The disputed domain name <areas.com> was registered on January 14, 1998.
5. Parties' Contentions
The Complainant contends that <areas.com> is identical or at least highly similar to the Complainant's trademarks, domain names and trade name AREAS, since they coincide in the distinctive and dominant part of the disputed domain name.
The Complainant has not licensed nor otherwise permitted the Respondent to use its trademark AREAS or to apply for any domain name incorporating its registered trademark AREAS.
The Respondent does not have any rights or legitimate interests in the disputed domain name <areas.com>. The Complainant also asserts that the Respondent has not been commonly known by the name AREAS, at any relevant time.
The Respondent does not associate the disputed domain name with a good faith offering of goods and services, since it is not active, being used and directed to an error page. In addition, the Respondent has no demonstrable intention to use the disputed domain name in connection with a bona fide offering of goods or services.
The disputed domain name <areas.com> was registered or acquired by the Respondent primarily for the purpose of disrupting the business of the Complainant and preventing the Complainant from reflecting its trademark in a domain name with the corresponding generic Top-Level Domain (gTLD) ".com".
The Respondent has not sent a formal Response to the Center and consequently has not contested the allegations of the Complainant.
6. Discussion and Findings
According to paragraph 15(a) of the Rules: "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 and principles of law that it deems applicable." Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or a service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has provided evidence of ownership of several trademark registrations for AREAS including in Spain, where the Respondent is based.
The distinctive part of the disputed domain name is identical to the Complainant trademark AREAS. Indeed, the gTLD ".com" cannot be taken into consideration in the present comparison. As it has been clearly stated by previous UDRP panel decisions: "It should be noted that when a domain name is composed in whole or in part of a trademark, neither the beginning of the URL, nor the gTLD (".com") have any source indicating significance. Those designations are merely devices that every Internet site provider must use as part of its address" (see NUTREXPA, S.A. v. Juan Silher, WIPO Case No. D2000-1386).
The Panel finds that the trademark AREAS, duly registered by the Complainant, is identical to the disputed domain name <areas.com>.
In view of the grounds above, the Panel finds that the Complainant has proven that the disputed domain name is identical or confusingly similar to the trademark AREAS in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant must show that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent may establish a right or legitimate interest in the disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy any of the following:
(i) before any notice to the Complainant of the dispute, the use by the Respondent 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 (as an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent 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.
It is commonly accepted that, under the UDRP Rules, the burden of proof lies on the Complainant. However, satisfying the burden of proving a lack of the respondent's rights or legitimate interests in respect of the disputed domain name according to paragraph 4(a)(ii) of the Policy is potentially quite onerous, since proving a negative circumstance is always more difficult than establishing a positive one.
Accordingly, in line with the previous UDRP decisions, it is sufficient that the Complainant show a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name in order to shift the burden of production on the Respondent. If the Respondent fails to demonstrate rights or legitimate interests in the disputed domain name in accordance with paragraph 4(c) of the Policy or on any other basis, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).
In the case at hand, by not submitting a formal Response, the Respondent has not discussed the Complainant's prima facie case, failing to invoke any circumstance that could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name.
The Panel observes that there is no relation, disclosed to the Panel or otherwise apparent from the files, between the Respondent and the Complainant. The Respondent is not licensee of the Complainant, nor has the Respondent otherwise obtained any authorization to use the Complainant's trademarks.
Furthermore, there is no indication before the Panel that the Respondent is commonly known by the disputed domain name, has made preparations to use the disputed domain name in connection with a bona fide offering of goods or services, or that it intends to make a legitimate, noncommercial or fair use of the disputed domain name.
The Panel notes that the disputed domain name <areas.com> has not been used and resolves to an error page. While this Panel notes that "areas" is a dictionary word in Spanish and in English, in this case the disputed domain name is not used in connection with a purpose related to its dictionary meaning.
Thus, in light of the above, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name, in accordance with paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
For the purpose of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of the disputed domain name in bad faith:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder's documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has 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 holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder's website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the holder's website or location or of a product or service on the holder's website or location.
In accordance with prior UDRP decisions, the Panel finds that a failure to respond the Complaint can be evidence of bad faith. See, e.g., Spyros Michopoulos S.A. v. John Tolias, ToJo Enterprises, WIPO Case No. D2008-1003, in which the Panel stated: "[a]ny such bad faith is compounded when the domain name owner, upon receipt of notice that the disputed domain name is identical or confusingly similar to a registered trade mark, refuses to respond".
Noting that both parties are located in Spain, the Panel finds it is also unlikely that the Respondent would not have been aware of the Complainant's trademark when registering the domain name. The Panel finds bad faith registration from the preceding facts.
In several WIPO UDRP decisions, it was ascertained that passive holding of a domain name may be sufficient to constitute bad faith use, taking into consideration the overall context of the Respondent's behavior. In the present case, the following circumstances seem relevant in this respect: the Respondent has provided no evidence of any good faith use of the disputed domain name; the Respondent does not seem to have associated the disputed domain name with any web site or online presence at all.
In view of the above, the Panel finds that the disputed domain name was registered and is being used in bad faith.
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 <areas.com> be transferred to the Complainant.
Date: November 9, 2015