WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Altamira Asset Management, S.A. v. Luis G. Mota
Case No. D2017-1298
1. The Parties
The Complainant is Altamira Asset Management, S.A. of Madrid, Spain, represented by Luis Guerra, Spain.
The Respondent is Luis G. Mota of Chicago, Illinois, United States of America (“United States”).
2. The Domain Name and Registrar
The disputed domain name <altamirarealestate.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 6, 2017. On July 6, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 7, 2017, 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 July 12, 2017. In accordance with the Rules, paragraph 5, the due date for Response was August 1, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 2, 2017.
The Center appointed Desmond J. Ryan as the sole panelist in this matter on August 20, 2017. 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 disputed domain name was created on January 31, 2017. The Complainant alleges that, at the date of the Complaint, the disputed domain name did not resolve to an active website. The disputed domain name currently resolves to the Registrar’s holding page.
The Complainant claims to be a leading real estate company in Spain. It is the owner of European trade mark No. 015162258, filed February 29, 2016, comprising a red block featuring prominently the word “Altamira” and a stylized representation of an apartment block, registered in International Classes 35 and 36 (“the ALTAMIRA trade mark”). The trade mark application was published on April 25, 2016 and the ALTAMIRA trade mark was registered on January 31, 2017. The Complainant also owns a Spanish trade mark registration, No. M3502483(6), registered on June 15, 2009.
The Complainant claims to have more than 30,000 real estate assets and to have had extensive use, promotion and advertising of its business by reference to the ALTAMIRA trade mark. As evidence to support that claim, the Complainant has annexed to the Complaint a copy of an undated brochure advertising an apartment block under the title “El Boulevard” at La Goleta in northern Spain. No further information is given in the Complaint about the Complainant or its activities under the ALTAMIRA trade mark.
No information is given in the Complaint about the Respondent.
Pursuant to the general powers conferred by paragraph 10 of the Rules, the Panel conducted an Internet search of publicly available records using “Altamira” as the search term – see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0, section 4.8). That search failed to reveal any reference to the Complainant or its trade mark in the first 10 search pages. What it did reveal is that Altamira is the site of famous caves with prehistoric cave paintings and that the caves and the paintings were the subject of a film released in 2016 relating to the 19th century discovery of the cave paintings. The Panel subsequently became aware that using the whole disputed domain name as the search term revealed reference to the Complainant. Whilst the Panel considers such a search to be irrelevant (since it is the Complainant’s reputation in the trade mark which is to be proven not in the disputed domain name), nevertheless, being possessed of that knowledge, the Panel felt it necessary to take it into account. Accordingly, the Panel conducted further searches using “Altamirarealestate” as the search term. That search yielded references to the Complainant and financial activity relating to the sale of the Complainant by its parent company to the Apollo Group. It also disclosed several other places in the world, including in the United States, Mexico, Canary Islands and Puerto Rico called “Altamira” and websites not related to the Complainant all offering real estate services at those locations, including a site at “www.altamirarentals.com” offering accommodation at Palm Springs, California.
5. Parties’ Contentions
The Complainant’s contentions may be summarized as follows:
i. the disputed domain name differs from the Complainant’s ALTAMIRA trade mark only by the addition of the words “real estate” and the generic Top-Level Domain (“gTLD”) “.com”.
ii. the Respondent has no rights or legitimate interest in the disputed domain name. It does not have any registered trade marks reflecting the disputed domain name; it has not been authorised by the Complainant to use the ALTAMIRA trade mark, and there has been no use by the Respondent of the disputed domain name in connection with the bona fide offering of goods or services.
iii. the ALTAMIRA trade mark is a well-known and reputed trade mark and the Respondent must have known of it and had the Complainant in mind when registering the disputed domain name.
iv. the fact of knowingly incorporating a third party’s well-known trade mark in a domain name constitutes registration in bad faith.
v. the disputed domain name is not being used and this is an indication of bad faith.
vi. the circumstances of this case indicate that the Respondent has registered the disputed domain name to prevent the Complainant from reflecting its trade mark in a corresponding domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant is the owner of a European trade mark registration for a mark comprising, as its dominant particular, the word “Altamira”, for services in International Classes 35 and 36. The Registration is based on an application filed February 29, 2016. The Complainant therefore has rights in that trade mark.
The disputed domain name wholly includes the word “Altamira” with the addition only of the words “real estate” and the gTLD. Neither of those additions serve to negate the dominant impression created by the word “Altamira”. (See WIPO Overview 3.0, section 1.8.)
The Panel therefore finds that the disputed domain name is confusingly similar to the Complainant’s trade mark.
B. Rights or Legitimate Interests
The Panel accepts the Complainant’s assertions that it has not authorised the Respondent to use the ALTAMIRA trade mark or to incorporate it into the disputed domain name. There is no evidence that the Respondent is commonly known by the disputed domain name and the Respondent appears not to have made any active use of the disputed domain name at any time.
Although, for the reasons set out in section C below, it is unnecessary to decide whether the Respondent has any rights or legitimate interests in the disputed domain name, the Panel accepts that, on balance, the Complainant has made out a prima facie case which the Respondent has failed to rebut.
C. Registered and Used in Bad Faith
Although the Respondent has failed to respond to the Complaint and has offered no explanation as to why it adopted the disputed domain name, it is nevertheless necessary for the Complainant to establish, on the balance of probability, that the Respondent’s registration and use of the disputed domain name was in bad faith. (See WIPO Overview 3.0, sections 4.2 and 4.3.) In the Panel’s opinion, the Complainant has failed to discharge that onus. Its unsupported conclusory statements alone are not enough to establish bad faith despite adverse inferences that may arise from the failure of the Respondent to rebut them. As noted in WIPO Overview 3.0, section 4.3, “In cases involving wholly unsupported and conclusory allegations advanced by the complainant, or where a good faith defense is apparent (e.g., from the content of the website to which a disputed domain name resolves), panels may find that – despite a respondent’s default – a complainant has failed to prove its case.”
The Respondent is located in Chicago, United States. The Complainant has produced no evidence that its reputation in the ALTAMIRA trade mark extends beyond Europe or at least beyond Spain. The only evidence which the Complainant has produced in this respect is an undated copy of a single brochure bearing the ALTAMIRA trade mark which advertises for sale apartments at La Goleta in northern Spain under the name “El Boulevard”. On the other hand, it is apparent from publicly available Internet sources that the name “Altamira” may be internationally known for other reasons not connected with the Complainant. First, because it is the location of important prehistoric cave paintings discovered in the 19th century, and secondly because of publicity associated with a film based on that discovery which was released in April, 2016 and which likely stimulated interest in Altamira and tourism and real estate in that area. Thirdly, there are several other places in the world (including the United States) named “Altamira” and other websites offering real estate services at those locations. Further, the trade mark registration on which the Complainant relies was filed only eleven months before the creation date of the disputed domain name and there is no evidence of the Complainant’s reputation prior to the date nor is there evidence to suggest that the Complainant’s reputation extended to the United States where there are at least three geographic locations named Altamira. Whilst in cases where the disputed domain name comprises the relevant trade mark with the addition of a term descriptive of the complainant’s goods or services, this may lead to a conclusion of an intention to target the complainant (see for example the decision of the panel in Fabiana Philippi S.R.A. v. Raymond Castro, WIPO Case No. D2017-1044), that alone is not enough. There needs to be further evidence of targeting such as, in the aforementioned case, evidence of wide reputation and impersonation of the complainant’s website.
In the Panel’s opinion, it is at least as likely that it was the events or locations discussed above which stimulated the Respondent’s interest in registration of the disputed domain name. It should be remembered that absent improper motive or conduct, the first creator of a domain name is entitled to it.
To support an argument that the Respondent has used the disputed domain name in bad faith, the Complainant relies upon the fact that at the date of the Complaint, the disputed domain name was inactive. (The Panel notes that the disputed domain name currently resolves to the Registrar’s holding page.) Whilst the decision in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, may be authority for the proposition that passive holding of a disputed domain name may in some circumstances be evidence of use in bad faith, mere holding of the domain name is not enough. Here, there is no other indication to suggest bad faith. The Respondent has not provided false contact particulars, it has not attempted to conceal its identity behind a privacy shield and there is no other evidence to suggest an improper motive. The Complaint was filed less than six months after the creation of the disputed domain name so absence of activity in that time is not all that surprising. As to the Complainant’s contention that the Respondent registered the disputed domain name to prevent the Complainant from reflecting its trade mark in a corresponding domain name, again there is no evidence to support that contention and further, in any event, there is no evidence that the Respondent has engaged in a pattern of such conduct as required by paragraph 4(b)(ii) of the Policy.
The Panel therefore finds that the Complainant has failed to establish, on the balance of probabilities, that the Respondent registered and has used the disputed domain name in bad faith.
For the foregoing reasons, the Complaint is denied.
Desmond J. Ryan AM
Date: September 11, 2017