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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bernardo Neustadt v. Link Commercial Corp.
Case D2000 – 1256
1. The Parties
The Complainant is Bernardo Neustadt an individual resident at Alicia Moreau de Justo 140, Piso 3 (C1107AAD) Buenos Aires, Argentina. The Respondent is Link Commercial Corp., a corporation in, Bitco Building Floor 3 Box 4852, Nassau Bahamas.
2. The Domain Name and Registrar
The domain name at issue is <bernardoneustadt.com> registered with Network Solutions, Inc. ("NSI"), based in Herndon, Virginia, United States of America.
3. Procedural History
A Complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on September 22, 2000, and the signed original together with four copies were received on September 25, 2000.
On October 2, 2000, after the Center sent a Request for verification to the Registrar concerning the registration data, WIPO received the Whois Search Results for the domain name at issue. The Whois details confirmed that the domain name is registered with NSI, is currently in active status, and that the Respondent is the current registrant of the name.
The WIPO Center determined that the Complaint satisfies the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Uniform Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel has determined and agrees with the assessment of the WIPO Center that the Complaint is in formal compliance with the requirements of the Policy, the Uniform Rules, and the Supplemental Rules. The Complainant paid on time the amount required for a sole Panelist.
No formal deficiencies having been recorded, on October 3, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI and ICANN), setting a deadline of October 22, 2000, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail addresses indicated in the Complaint and specified in NSI’s confirmation. In addition, the Complaint was sent to the Respondent’s postal address by express courier. Having reviewed the communications records in the case file, the Administrative Panel finds that the WIPO Center has discharged its responsibility under Paragraph 2(a) of the Uniform Rules "to employ reasonably available means calculated to achieve actual notice to Respondent."
On October 25, 2000, not having received any response, the WIPO Center sent the parties a formal Notification of Respondent Default.
On November 3, 2000, in view of the Complainant's designation of a single Panelist, the WIPO Center appointed Dr. Marco Proaño Maya to serve as sole Panelist.
4. Factual Background
The Complainant states that Bernardo Neustadt is a person of recognized trajectory and reputation in the journalistic world in Argentina, Uruguay and other countries. During 60 years of his professional work, the Complainant has promoted and contributed to the political, social, scientific and cultural life of Argentina.
The Complainant also states that during his professional life he has developed an outstanding career in newspaper, radio ("Millenium") and television ("Tiempo Nuevo" and "Al Estilo de Bernardo Neustadt") interviewing, due to his professionalism and reputation, several famous people.
Due to his outstanding career he won a series of awards, for example, the two bronze medals in the 2000 New York festival in the category of International Radio.
Mr Neustadt has recently launched a website containing information about his life and background, which is located at bernardoneustadt.org and has also, registered bernardoneustadt.net.
On December 12, 1996, Respondent registered the domain name at issue.
To date Respondent has not used the domain name to develop a web site.
5. Parties’ Contentions
Complainant contends that the disputed domain name is identical to his personal name. He further contends that Respondent has no rights or legitimate interests in the domain name at issue, and finally that Respondent has registered and is using the domain name at issue in bad faith.
Respondent has not contested the allegations of the Complaint.
6. Discussion and Findings
Even though Respondent has failed to file a Response or to contest Complainant’s assertions, the Sole Panelist will review the evidence proffered by Complainant to verify that the essential elements of the claims are met.
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: "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:
1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,
2) that the Respondent has no legitimate interests in respect of the domain name; and,
3) that the domain name has been registered and is being used in bad faith.
Identical or Confusing Similarity
From the point of view of trademark: Bernardo Neustadt demonstrates his trajectory and his reputation as journalist, and claims that his name should be considered as a well known trademark.
In Case N° D2000-0210, Julia Fiona Roberts v. Russell Boyd, like this case, the domain name in discussion was identical to a civil and professional name that was not a registered mark of commerce. The use of the name of a cinema actress with commercial finality and its diffusion transformed it into a mark "de facto" (common law trademark), therefore, protectible under the principles of the Policy applicable to the trademarks. The actress won the case and the domain name " juliaroberts.com " was transferred.
The same principle was applied in Case N° D2000-0235, Jeanette Winterson v. Mark Hogarth; and in Case N° D2000-0581 Rita Rudner v. Internetco Corp.
Being the extension " com " an attribute of gTLD, common to all domain names under this TLD, one can not dispute that the name and mark BERNARDO NEUSTADT is identical to the domain name "bernardoneustadt.com". Consequently, the requirement of the Paragraph 4.a.(i) of of the Policy is fulfilled in this case.
Rights or Legitimate Interest.
Complainant contends that Respondent has no rights or legitimate interest in the Domain Name pursuant to the Policy paragraph 4(a)(ii).
Respondent has no relationship with or permission from Complainant for the use of his personal name.
The Policy paragraph 4(c) allows three non-exclusive methods for Respondent to demonstrate that it has rights or a legitimate interest in the Domain Name:
(i) before any notice to you of the dispute, your use 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are 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.
Respondent has not answered the Complaint, consequently it has not offered evidence that the use of the Domain Name meets the elements for any of the non-exclusive items provided for in the Paragraph 4(c) of the Policy. Therefore, the Sole Panelist finds that Respondent has no rights or legitimate interest in the Domain Name pursuant to the Policy paragraph 4(a)(ii).
Complainant contends that Respondent registered and is using the Domain Name in bad faith in violation of the Policy paragraph 4(a)(iii).
To this effect the following should be considered:
1. Taking into consideration the journalistic material, photos, and the content of the CD-ROM 60, to which the Complainant makes reference in section V 12 (1) of the Complaint, this Panel finds that on the date of the registration of the domain name (December 12, 1996), the Respondent deliberately chose a person's name which was well known to the Argentinian public.
2. In light of this case's particular circumstances, the Administrative Panel concludes that the Respondent’s passive holding of the domain name satisfies the requirement of paragraph 4(a)(iii) that the domain name "is being used in bad faith" by Respondent. In that way the domain name cannot be registered or be used by any other person (ref. cases D2000-0003 Telstra Corporation Limited v. Nuclear Marshmallows; and D2000-0749 David Valls Biosca v. Alex Blasi Mas).
Paragraph 4(b) of the Policy has a non-exhaustive list of four criteria which the Complainant must establish in order to demonstrate the Respondents bad faith in the registration and use of the domain name in question.
In respect of the items listed in Paragraph 4(b), in the present case this Panel finds as follows:
There does not exist any evidence that the Respondent has engaged in a pattern of registering third party trademarks/names, however, the Panelist considers that in registering the domain name "bernardoneustadt.com", the Respondent prevented the Complainant from registering its own name.
There is no evidence that the domain name has been used intentionally to attract internet users for a commercial gain. However, the Panel finds that there is a likelihood of confusion for the internet users who could associate the Complainant's name to the site or that the Complainant is sponsoring or has some affiliation to the site encompassing his name.
Considering that the Domain Name in issue is the Complainant's civil name, that it is also the name by which the Complainant is known professionally, and that his name is synonymous with his well-earned reputation, it is this Panel's opinion that by using the Complainant's name, in which the Respondent has demonstrated no right or legitimate interest, the Respondent has acted in bad faith.
The Administrative Panel finds that that the Domain Name < bernardoneustadt.com > is identical to Complainant’s civil name and trademark; that the Respondent has no right or legitimate interest in respect to the Domain Name; and that the Respondent’s Domain Name has been registered and is being used in bad faith. Accordingly, pursuant to paragraph 4(i) of the Policy, the Administrative Panel requires that the registration of the Domain Name be transferred to the Complainant.
Dr. Marco Proaño Maya
Dated: November 16, 2000