WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Financiere Alma Capital v. Medhat AK Habbab, Alma Capital Holding Group
Case No. D2019-0072
1. The Parties
Complainant is Financiere Alma Capital of Paris, France represented by Novagraaf France, France.
Respondent is Medhat AK Habbab, Alma Capital Holding Group of Kowloon, Hong Kong, China.
2. The Domain Name and Registrar
The disputed domain name <almacapitalholdinggroup.net> is registered with Ascio Technologies Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 14, 2019. On January 14, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 22, 2019, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on January 23, 2019. In accordance with the Rules, paragraph 5, the due date for Response was February 12, 2019. Respondent did not submit any formal response. Accordingly, the Center notified Respondent’s about Commencement of Panel Appointment Process on February 13, 2019.
The Center appointed Georges Nahitchevansky the sole panelist in this matter on February 21, 2019. 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, Financiere Alma Capital, is an asset management company with offices in Luxembourg, Paris and London. Complainant is the owner of a European Union Trademark registration for ALMA CAPITAL (No. 002800969) in connection with various financial services. That registration issued to registration on December 18, 2003. Complainant also owns and currently uses the domain name <almacapital.com> to provide information on and to promote Complainant’s financial services. Complainant registered the <almacapital.com> domain name on February 7, 2005.
Respondent, Medhat Ak Habbab, is an individual affiliated with a Hong Kong based company by the name of Alma Capital Holding Group. The Alma Capital Holding Group company was registered in Hong Kong on June 14, 2016 and operates as a management company providing financial and commercial services, such as loans and financing for projects. Respondent Medhat Ak Habbad appears to be the Chairman and CEO of Alma Capital Holding Group.
Respondent registered the disputed domain name on May 9, 2017 and currently uses the disputed domain name with a website to promote its services. Complainant sent Respondent a demand letter on or about March 1, 2018. Respondent apparently has not responded to that letter.
5. Parties’ Contentions
Complainant contends that it owns rights in the mark ALMA CAPITAL mark by virtue of its 2003 trademark registration for ALMA CAPITAL in the European Union and its ownership of the domain name <almacapital.com>.
Complainant contends that the disputed domain name is confusingly similar to Complainant’s ALMA CAPITAL mark as the dominant component of the disputed domain name is ALMA CAPITAL and the words “holding group” are purely descriptive in nature.
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name as Respondent (i) owns no prior trademark registration for ALMA CAPITAL, (iii) registered the company name Alma Capital Holding Group in Hong Kong after Complainant had secured rights in ALMA CAPITAL for financial services, (iii) has no connection to Complainant and has not been authorized by Complainant to use the ALMA CAPITAL mark, and (iv) could not have been unaware of Complainant as a global leader of investment and financial services.
Complainant asserts that the disputed domain name has been registered and is being used in bad faith by Respondent. In that regard, Complainant maintains that Respondent could not ignore the existence of Complainant’s prior rights in ALMA CAPITAL, given that Respondent registered a disputed domain name that consists of the ALMA CAPITAL mark and used such to provide financial services. Complainant further asserts that Respondent’s registration and use of the disputed domain name makes clear that Respondent registered the disputed domain name to take advantage of Complainant’s reputation in order to attract clients. Complainant notes that two entities listed on Respondent’s website are well-known French companies and that accordingly this further establishes Respondent’s bad faith.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond to the complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A Panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006-0340.
A. Identical or Confusingly Similar
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0 at section 1.2.1. Complainant has provided evidence that it owns a trademark registration for ALMA CAPITAL in the European Union, and that such was registered before Respondent registered the Alma Capital Holding Group company in Hong Kong and registered and started using the disputed domain name.
With Complainant’s rights in the ALMA CAPITAL mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain (“gTLD”) such as “.net”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant’s ALMA CAPITAL mark as the disputed domain name consists of the ALMA CAPITAL mark in its entirety at the head of the disputed domain name. The addition of the descriptive words “holding group,” does not distinguish the disputed domain name for purposes of the first element as the dominant component of the disputed domain name is ALMA CAPITAL. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s ALMA CAPITAL mark and in showing that the disputed domain name is identical or confusingly similar to that trademark.
B. Rights or Legitimate Interests and Registration and Use in Bad Faith
Given that Complainant’s contentions under the second and third elements are largely similar and that the analysis of such contentions is based on the same limited evidence before the Panel, the discussion of these two elements has been combined.
Complainant argues that Respondent has acted in bad faith and has no rights or legitimate interests in the disputed domain name because Complainant has prior rights in the ALMA CAPITAL mark and Respondent, therefore, was aware that it was violating Complainant’s rights in the ALMA CAPITAL mark when Respondent registered the disputed domain name. Complainant further contends that Respondent’s registration and use of the disputed domain was done to take advantage in bad faith of Complainant’s rights in the ALMA CAPITAL mark.
In support of Complainant’s contentions, Complainant has provided a copy of its 2003 European Union trademark registration for ALMA CAPITAL and the Whois record for the <almacapital.com> domain name. Complainant, however, has provided no evidence of its use of the ALMA CAPITAL mark, but has simply made reference to its ownership of the domain name <almacapital.com>. What is lacking in the record is any evidence supporting Complainant’s claim that it is a “global leader in the investment and financial services,” that Complainant does any business beyond Europe, owns any trademark rights for ALMA CAPITAL outside of the European Union, has made any use of the ALMA CAPITAL mark outside the European Union, or has any reputation beyond the European Union. The Panel has looked at Complainant’s website at the domain name <almacapital.com>, and notes that Complainant currently offers asset management related financial services primarily in Europe.
Although Respondent has not filed a response in this proceeding, Complainant has provided evidence regarding (i) Respondent’s 2016 registration of the company name Alma Capital Holding Group in Hong Kong and (ii) Respondent’s use of the disputed domain name for a website offering financial, commercial, project management and construction services. The Panel has likewise looked at Respondent’s website at the disputed domain name. The website at the disputed domain name purports to offer a variety of financial, commercial, construction and project management services. The website also prominently features a logo for the Alma Capital Holding Group with an emphasis on Alma Capital. The website, however, appears to suggest that Respondent’s services are related to projects in Asia, the Middle East and Africa.
Based on the limited evidence before the Panel, it appears that Respondent has been operating a bona fide business in Hong Kong, which has been registered in Hong Kong, for at least two or more years and that the business is not based and does not operate in Europe where Complainant is located. What is lacking is any evidence in the record suggesting that Respondent’s business is a sham business or that the website at the disputed domain name is merely pretextual. Indeed, Complainant does not argue otherwise.
As no evidence has been submitted to suggest that Respondent operates in or targets Europe, beyond having a website that can be accessed in Europe, the issue then is whether Respondent has acted in bad faith in registering and using the disputed domain name based on the name of its registered company and actual business in Hong Kong. Complainant has only provided proof that it has rights in ALMA CAPITAL in Europe, but beyond that Complainant simply alleges that it is a global leader for investment and financial services without providing any evidence to support that contention. To be sure, conclusory allegations of fame or widespread renown that are unsubstantiated with specific evidence are entitled to little or no weight. SeeWIPO Overview 3.0 at sections 1.3 and 3.1. Complainant’s entire case is based on its ownership of a trademark registration in the European Union for ALMA CAPITAL and its ownership of the domain name <almacapital.com>. Although Complainant may have evidence that would show the extent of Complainant’s activities, the use of the ALMA CAPITAL mark, the reputation of Complainant globally, and Complainant’s rights in ALMA CAPITAL beyond the European Union, such evidence is completely lacking in this proceeding. Under these circumstances, it is difficult for the Panel to conclude that Complainant has strong or exclusive rights in ALMA CAPITAL, a mark that consists of the common name “Alma” and the generic financial term “capital,” outside of the European Union.
While Respondent’s use of ALMA CAPITAL could arguably be an infringement of Complainant’s rights, there is no evidence before the Panel that suggests that Respondent adopted the name Alma Capital Holding Group in Hong Kong for its services for the express purpose of exploiting Complainant’s rights in ALMA CAPITAL in Europe. That being said, the Panel notes the prominent use of ALMA CAPITAL in Respondent’s logo, but that in and of itself does not establish bad faith or a lack of a legitimate interest on the part of Respondent in registering and using the disputed domain name for its actual company and business in Hong Kong. To be sure, to the extent that Complainant may have a claim against Respondent for trademark infringement or unfair competition, such a claim belongs in another forum and is beyond the scope of a UDRP proceeding which is limited to considering whether a Respondent has a legitimate interest in a disputed domain name and whether a disputed domain name has been registered and used in bad faith pursuant to a non-exhaustive list of circumstances set forth in paragraph 4(b) of the Policy.
Accordingly, the Panel concludes that Complainant’s Complaint fails under both the second and third elements.
For the foregoing reasons, the Complaint is denied.
Date: March 5, 2019