WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Albino Vargas Ozuna v. Francisco Javier Gomez Vazquez
Case No. D2017-1328
1. The Parties
Complainant is Albino Vargas Ozuna of San Pedro El Alamo, Nuevo León, México, represented by iGerent, United States of America (“United States”).
Respondent is Francisco Javier Gomez Vazquez of México City, México.
2. The Domain Name and Registrar
The disputed domain name is <mimex.com> which 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 11, 2017. On July 11, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 12, 2017, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a clarification request by the Center, Complainant filed an amendment to the Complaint on July 18, 2017. In response to a further clarification request by the Center, Complainant filed another amendment to the Complaint on July 20, 2017.
The Center verified that the Complaint together with the amendments to 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 Respondent of the Complaint, and the proceedings commenced on July 21, 2017. In accordance with the Rules, paragraph 5, the due date for Response was August 10, 2017. An email from a third party was received by the Center on August 15, 2017. Respondent did not submit any response. Accordingly, the Center notified the parties the commencement of the panel appointment process on August 16, 2017.
The Center appointed Gerardo Saavedra as the sole panelist in this matter on August 25, 2017. 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. On August 25, 2017, the Center received another email communication from the same third party referred to above.
On September 1, 2017, the Center communicated to the parties Procedural Order No. 1. In such Procedural Order this Panel set forth September 14, 2017, as the deadline to forward his decision to the Center. On September 4, 2017, Complainant filed with the Center its reply to such Procedural Order. Respondent did not submit any reply to such Procedural Order.
4. Factual Background
Complainant has rights over the MIMEX trademark for which it holds registration No. 877324 with the Mexican Institute of Industrial Property, registered on April 22, 2005, in class 30, with stated first use in September 1995.
Complainant also holds an application for the registration of the MIMEX trademark with the United States Patent and Trademark Office, serial No. 87489342, filed on June 14, 2017, in classes 5 and 30.
The disputed domain name was registered on May 15, 2000, whose registration was updated on March 29, 2017. The disputed domain name does not resolve to an active website.
5. Parties’ Contentions
Complainant’s assertions may be summarized as follows.
The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights. Complainant is the owner of the registered trademark MIMEX.
Respondent has no rights or legitimate interests in respect of the disputed domain name. The disputed domain name was acquired on March 29, 2017, while Respondent and Complainant were negotiating a distribution contract that would allow Respondent certain distribution rights for the products that Complainant offers under such trademark. Before being granted the status of distributor, Respondent acquired the disputed domain name primarily for the purpose of negotiating such agreement. Due to the intention by Respondent to use the disputed domain name in order to press for a distribution agreement, Complainant refused to continue such negotiations. Respondent was never granted the status of distributor.
The disputed domain name was registered in bad faith, as Respondent when acquiring the disputed domain name knew perfectly well that the disputed domain name was identical to Complainant’s trademark. Products under Complainant’s trademark were acquired by Respondent while a possible distribution agreement was being negotiated.
Even if Respondent were to argue that it registered the disputed domain name with the mere intention of using it if a distribution agreement was granted, or plans on using to resell products, the following should be noted: (i) Respondent does not offer the products at issue; (ii) Respondent never used the disputed domain name either to sell those or other products; (iii) the disputed domain name was acquired solely for the purpose of negotiating an agreement with Complainant. Such negotiation was terminated due to the controversy regarding the disputed domain name.
The disputed domain name was registered and is being used in bad faith. Respondent has registered the disputed domain name primarily for the purpose of pressing for a distributing agreement. Being that such negotiations are no longer in progress, due to the controversy for the disputed domain name, Respondent now has the intention of selling the disputed domain name for MXN 200,000 (equivalent to USD 11,000) pursuant to an email sent by Respondent’s representative in the negotiations on June 26, 2017, that led to the Complaint. In Respondent’s proposal, the price for the disputed domain name is based on the intention of obtaining what Respondent has supposedly paid for obtaining the disputed domain name together with marketing expenses (of a trademark that Respondent has no legitimate rights to) and designs. Such expenses are unfounded as no agreement regarding distribution was ever obtained by Respondent.
Complainant requests that the disputed domain name be transferred to Complainant.
Respondent did not reply to Complainant’s contentions.1
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
The lack of response from Respondent does not automatically result in a favorable decision for Complainant (see Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465). The burden for Complainant, under paragraph 4(a) of the Policy, is to show: (i) that the 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 name; and (iii) the disputed domain name has been registered and is being used in bad faith.
In examining the Complaint and the evidence supplied by Complainant, this Panel wonders whether Complainant could have put forward stronger and better arguments and much more evidence. As set forth in other UDRP cases, this Panel reiterates that it is Complainant’s responsibility to present its case with appropriate arguments and evidence and that it is not this Panel’s role to ellaborate arguments on behalf of any party or to look for evidence not supplied by the parties.2
A. Identical or Confusingly Similar
It is undisputed that Complainant has rights over the MIMEX trademark.
The disputed domain name consists only of such trademark in its entirety and the generic Top-Level Domain (“gTLD”) suffix “.com”. Since the addition of a gTLD suffix after a domain name is technically required, it is well established that such element may be disregarded where assessing whether a domain name is identical or confusingly similar to a mark (see, for instance, Boehringer Ingelheim International GmbH v. Jiaai EAC International Co., Limited, WIPO Case No. D2014-0372). Based on the above, it is clear that the disputed domain name is identical to Complainant’s trademark.
Thus this Panel finds that Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Complainant has alleged and Respondent has failed to deny that Respondent has no rights or legitimate interests in respect of the disputed domain name.
It is clear that the MIMEX trademark has been registered for a number of years. Complainant asserts that a possible distribution agreement was being negotiated between Complainant and Respondent, and that Respondent acquired the disputed domain name for the purpose of negotiating and pressing for such agreement, which did not materialize. Complainant supplied a copy of some emails evidencing such negotiations, which also show that Complainant was surprised at the time it became aware of Respondent’s acquisition of the disputed domain name without Complainant’s authorization. In this Panel’s view, such negotiations do not confer rights or legitimate interests on Respondent.
Complainant asserts that Respondent never used the disputed domain name to sell any products. Since Complainant did not submit any screenshots of the website associated to the disputed domain name, in this particular case this Panel decided to access such website and found that it prominently shows the following legend: “Future home of something quite cool”.3
In the file there is no evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances, giving rise to a possible right or legitimate interest in the disputed domain name by Respondent. In the absence of any explanation from Respondent as to why it might consider it has a right or legitimate interest in using a domain name which entirely reflects Complainant’s trademark, this Panel considers that Complainant has established prima facie4 that Respondent has no rights or legitimate interests in the disputed domain name.
Thus, this Panel finds that paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
Complainant asserts that Respondent’s registration and use of the disputed domain name is in bad faith, which Respondent chose not to rebut.
Complainant contends that Respondent attempted to sell the disputed domain name for MXN 200,000.5 Complainant merely supplied a copy of an email sent to Complainant’s representative in this case, from allegedly Respondent’s representative. However, such email communication makes no reference at all to the disputed domain name or to Complainant or to Respondent, and Complainant provided no further evidence that might link such email communication to this case.6
This Panel notes that the MIMEX trademark was registered in April 2005, while the disputed domain name was registered in May 2000. The WhoIs report for the disputed domain name shows that its registration was updated on March 29, 2017. In this respect, Complainant asserts that Respondent acquired the disputed domain name on that date, March 29, 2017, which Respondent did not deny. Under the Policy, registration of a domain name generally encompasses later acquisitions of the same.7 The evidence in the file indicates that Respondent acquired the disputed domain name while negotiating a distribution agreement with Complainant and without Complainant’s authorization, thus it is clear that Respondent’s choice of the disputed domain name was deliberate for its identity with Complainant’s trademark, which is indicative of bad faith.
Notwithstanding that the disputed domain name does not resolve to an active website, it seems to this Panel that there are no bases to conceive a bona fide use of it by Respondent.8 In reaching that conclusion, this Panel has taken into account, in addition to all circumstances shown in the file surrounding Respondent’s obtention of the disputed domain name, the following: (i) the disputed domain name entirely and solely incorporates the MIMEX trademark; (ii) Respondent is using Complainant’s trademark at the disputed domain name without Complainant’s authorization; and (iii) Respondent’s failure to appear at this proceeding. In sum, from the overall evidence in the file it may be validly inferred that Respondent deliberately targeted Complainant’s trademark at the time it obtained the disputed domain name, most likely with the intention to benefit from such trademark and to take an unfair commercial advantage, which denotes bad faith.
In light of the above, this Panel finds that Complainant has satisfied 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, this Panel orders that the disputed domain name <mimex.com> be transferred to Complainant.
Date: September 14, 2017
1 As set forth above, the Center received several emails on August 15 and August 25, 2017, from a third party, allegedly Respondent’s representative (according to Complainant, who supplied the email address of such third party), which in essence contain the following statements: “This e-mail is just to let you know that I am not in charge of this case and I do not represent the defendant in this proceeding or any other”, and “Please stop sending me notifications and also to the e-mail […] in regards to this proceeding since I am not in charge of it”, respectively.
2 See Jones Apparel Group, Inc. v. jonesapparelgroup.com, WIPO Case No. D2001-0719: “it is not this Panel’s role to perfect a poor pleading”. See The Skin Store, Inc. v. eSkinStore.com, WIPO Case No. D2004-0661: “The Panel suspects [...] that further evidence could have been produced, but it is not the job of the Panel to hunt it out”. See also Servizi Interbancari S.p.A. v. Andrea Picaro, WIPO Case No. D2001-0881 and GA Modefine S.A. v. Sparco P/L, WIPO Case No. D2000-0419.
3 Access made on September 5, 2017. See section 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). See Sensis Pty Ltd., Telstra Corporation Limited v. Yellow Page Marketing B.V., WIPO Case No. D2011-0057: “UDRP panels frequently avail themselves of resources not supplied or mentioned by the parties, when these are publicly available and have a high degree of credibility for a relevant purpose [...] such resources may include the [...] websites associated with the domain names [...] The panel will use these resources, for example, to [...] fill in the factual gaps left by a silent respondent, or test the credibility and completeness of the parties’ statements”.
4 See section 2.1 of the WIPO Overview 3.0. Also, Casio Keisanki Kabushiki Kaisha (Casio Computer Co., Ltd.) v. Jongchan Kim, WIPO Case No. D2003-0400: “There is no evidence that the Complainant authorized the Respondent to register the disputed domain name or to use the CASIO trademark […] These circumstances are sufficient to constitute a prima facie showing by the Complainant of absence of rights or legitimate interest in the disputed domain name on the part of the Respondent”.
5 See paragraph 4(b)(i) of the Policy.
6 In Procedural Order No. 1 referred to above, this Panel invited Complainant to supply any such evidence, which Complainant did not. See also footnote 1 above.
8 See Ferrari S.p.A. v. Ms. Lee Joohee (or Joo-Hee), WIPO Caso No. D2003-0882: “Respondent has provided no evidence or suggestion of a possible legitimate use of the Domain Name. Thus, in the words of Telstra, it is not possible to conceive of any plausible actual or contemplated active use of the Domain Name by the Respondent that would not be illegitimate”.