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WIPO Domain Name Decision: D2000-1704
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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Rбdio Globo S.A. v. The Paradigm Corporation
Case No. D2000-1704
1. The Parties
The Complainant is Rбdio Globo S.A. of Rua do Russel 434 - 5° andar, Rio de Janeiro, 22210010, Brazil.
The Respondent is The Paradigm Corporation of 1750 Montgomery Street, San Francisco, CA 94111, U.S.A.
2. The Domain Name and Registrar
The disputed domain names are <radioglobo.net> and <radioglobo.org>. The Registrar of both these domain names is Network Solutions, Inc.
3. Procedural History
The essential procedural history of this proceeding is as follows:
(a) The Complainant initiated the proceeding by filing a complaint by email received by WIPO Arbitration and Mediation Center ("WIPO") on December 6, 2000 and by courier mail received by WIPO on December 7, 2000 together with payment. On December 12, 2000 WIPO transmitted a Request for Registrar Verification to the Registrar, Network Solutions, Inc. (with the Registrar’s Response received by WIPO on December 14, 2000).
(b) On December 14, 2000 the WIPO Case Administrator completed the Formal Requirements Compliance Checklist. The Panel has independently reviewed these Requirements and concurs with the assessment of the Case Administrator that the Complaint is in formal compliance with the requirements of the Rules for Uniform Domain Name Dispute Resolution Policy ("Rules") approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") on October 24, 1999 and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy, in effect as of December 1, 1999 (the "WIPO Supplemental Rules"). Payment by the Complainant of the requisite filing fees was made on time and in the required amount.
(c) On December 18, 2000 WIPO sent notification of the complaint and commencement of the proceeding to the Respondent via courier mail, telefax and e-mail. The case file record shows that the courier mail notification to the administrative and billing contact of the Respondent was returned to WIPO however, delivery to the address of the Respondent’s technical contact by courier mail was successful. The facsimile transmissions to the Respondent were not successful. The case file also shows that this notification was transferred to three email addresses, one being the email address of the Respondent as provided by the Registrar, No.firstname.lastname@example.org, and the other two being to <email@example.com> and <firstname.lastname@example.org>.
(d) On January 9, 2001 WIPO dispatched a Notification of Respondent’s Default to all concerned parties via e-mail. This Default Notification was transferred by email to all contact email addresses of the Respondent.
(e) On January 15, 2001 WIPO invited the undersigned panelist to serve in this proceeding. This invitation was accepted by completion and signature of the Statement of Acceptance and Declaration of Impartiality and Independence, sent to WIPO by facsimile on January 16, 2001.
(f) On January 18, 2001 WIPO dispatched a Notification of Appointment of the undersigned sole panelist as the Administrative Panel (the "Panel") and Projected Decision Date of January 31, 2000, to all concerned parties via e-mail.
Having reviewed the communications record in the case file of this proceeding the Panel is satisfied that WIPO has discharged its responsibilities under Paragraph 2(a) of the Rules "to employ reasonably available means calculated to achieve actual notice to Respondent". The Panel also finds that it has been properly constituted and appointed in accordance with the Policy, Rules and WIPO Supplemental Rules. The Panel has received no requests from the Complainant or Respondent regarding further submissions, waivers or extensions of deadlines. The proceeding has been conducted in English.
It will be noted that this case was considered during the same period as WIPO Cases D2000-1705 and 1706 by panels made up of the same panelist. WIPO Cases D2000-1705 and 1706 were brought by the same Complainant against two other Respondents in respect of the domain names <radioglobal.com> and <radioglobodigital.com>. The Panel emphasizes that this case and the two cases mentioned above were considered by the Panel separately, on the basis of the particular facts, legal and other issues and individual merits of each case.
4. Factual Background
The Complainant, a company founded in 1944 under the laws of Brazil, describes itself as based in Rio de Janeiro, Brazil. The Complainant was granted on August 6, 1973 a licence by the Brazilian Government to operate a radio station. The Complainant owns the Brazilian service mark registration n° 811 682 277 for "RÁDIO GLOBO – LIGADA EM VOCÊ" (translated into English by the Complainant as "RÁDIO GLOBO – CONNECTED WITH YOU") filed on August 28, 1984 and granted by the Brazilian Trademark Office on April 8, 1986 (and renewed in 1996) to cover communication, publicity and advertising services, in class 38.10.
A view by the Complainant on December 1, 2000 and by the Panel on January22, 2001 of <radioglobo.net> and <radioglobo.org>, the web sites with domain names the subject of this proceeding, resulted in the message that the sites are "Under Construction".
5. Parties’ Contentions
The Complainant asserts that:
(a) it is engaged in the production of radio programs and radio broadcasting and entertainment services, and that it is one of the biggest and most important companies engaged in the radio and entertainment business in Brazil.
(b) it uses the mark "Rбdio Globo" in connection with its radio and entertainment products and services in Brazil and abroad, and that it has continuously and extensively advertised and promoted this mark for more than 27 years in numerous communications media throughout Brazil and other countries.
(c) during the last few years it has started broadcasting of its radio programs over the Internet through the <radioglobo.com.br> web site and uses the "Rбdio Globo" mark on that website.
(d) it has developed substantial goodwill and name and brand recognition in its RÁDIO GLOBO mark, based on its long and extensive use of the RÁDIO GLOBO mark.
(e) it is a company of the Sistema Globo de Rбdio as well as of the group Organizações Globo.
The Complainant makes the following arguments:
(i) The Complainant has made uninterrupted use of the RÁDIO GLOBO mark since 1944 and the registration for Complainant’s RÁDIO GLOBO – LIGADA EM VOCÊ mark "constitute evidences of Complainant’s exclusive right to use its RÁDIO GLOBO mark in connection with its products and services."
(ii) The domain names <radioglobo.net> and <radioglobo.org> are identical, and therefore confusingly similar to, Complainant’s RÁDIO GLOBO mark, in the following manner:
- The domain names <radioglobo.net> and <radioglobo.org> are identical, and therefore confusingly similar, in appearance, pronunciation and sound to Complainant’s RÁDIO GLOBO mark.
- The domain names <radioglobo.net> and <radioglobo.org> incorporate Complainant’s RÁDIO GLOBO mark.
- The only difference between the <radioglobo.net> and <radioglobo.org> domain names and Complainant’s RÁDIO GLOBO mark is the domain name addition of ".net" and ".org" to Complainant’s RÁDIO GLOBO mark. Furthermore, the addition of ".net" and ".org" to the domain names are necessary elements of the domain names, and not voluntary and arbitrarily chosen additions; thus, ".net" and ".org" do not serve to distinguish the domain names from Complainant’s RÁDIO GLOBO mark.
- The <radioglobo.net> and <radioglobo.org> domain names have suggestions, connotations, and commercial impressions that are identical, and therefore confusingly similar, to those of Complainant’s respective RÁDIO GLOBO mark.
- Complainant’s RÁDIO GLOBO mark, which Respondent has incorporated into its domain name, is uniquely associated with Complainant and its radio and entertainment products and services.
(iii) The Respondent is not using the <radioglobo.net> and <radioglobo.org> domain names for any legitimate purpose. If a person views the <radioglobo.net> and <radioglobo.org> web sites and sees that the page is "Under Construction", that person may then search a Whois database for the registrant of <radioglobo.net> and <radioglobo.org> and assume that Respondent, whose name will appear, is affiliated with Complainant.
(iv) The Respondent has no rights or legitimate interests in respect of the <radioglobo.net> and <radioglobo.org> domain names, as demonstrated by the following:
- The Respondent’s use of the <radioglobo.net> and <radioglobo.org> domain names is not in connection with a bona fide offering of goods or services. Persons who visited <radioglobo.net> and <radioglobo.org> on the Internet as recently as December 1, 2000, only saw that the page is "Under Construction".
- Respondent is not commonly known or identified by the name "RÁDIO GLOBO"
- Respondent does not operate a business or other organization commonly known as RÁDIO GLOBO or offer any goods or services under the RÁDIO GLOBO mark.
- Respondent has not acquired trademark or service mark rights for the RÁDIO GLOBO mark in Brazil.
- Respondent is not making a legitimate noncommercial or fair use of the domain names.
- Respondent is not a licensee of Complainant, nor is Respondent otherwise authorized by Complainant to use Complainant’s RÁDIO GLOBO mark or to apply for or use any domain names incorporating the RÁDIO GLOBO mark.
(v) The RÁDIO GLOBO mark is not legitimately used by any other individual or entity (other than entities properly affiliated with Complainant), nor in relation to products or services other than those offered by Complainant. For these reasons, the RÁDIO GLOBO mark and words uniquely suggest Complainant’s radio and entertainment products and services, and the marks and words have connotations and commercial impressions of Complainant’s expertise relating to Complainant’s radio and entertainment products and services.
(vi) The <radioglobo.net> and <radioglobo.org> domain names have been registered in bad faith, as shown by the following:
- Respondent does not conduct any legitimate commercial or noncommercial business under the RÁDIO GLOBO mark.
- Respondent has registered the <radioglobo.net> and <radioglobo.org> domain names for the purpose of selling or renting or otherwise transferring the domain name registration to Complainant who is the owner of the respective RÁDIO GLOBO mark or to a competitor of Complainant for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain names.
- Respondent has registered the <radioglobo.net> and <radioglobo.org> domain names in order to prevent Complainant, as the owner of the RÁDIO GLOBO mark, from reflecting its mark in the corresponding domain name unless Complainant pays to purchase or rent the domain name from Respondent.
- By registering the <radioglobo.net> and <radioglobo.org> domain names, Respondent may divert consumers away from the official site of Complainant and is making difficult for Complainant’s customers and the general public to locate Complainant’s official web site, thereby disrupting Complainant’s business.
- By registering the <radioglobo.net> and <radioglobo.org>, Respondent may create a likelihood of confusion with Complainant’s RÁDIO GLOBO mark as to the source, sponsorship or affiliation.
(vii) If Respondent sells the <radioglobo.net> and <radioglobo.org> domain names to a competitor of Complainant, that competitor of Complainant could likewise use the <radioglobo.net> and <radioglobo.org> domain names to disrupt the business of Complainant and cause a substantial likelihood of confusion and substantial actual confusion. Use of these domain names by, or sale or rent of this domain name to, any other company could disrupt Complainant’s business and cause substantial confusion among persons trying to reach Complainant’s business, or to obtain information about Complainant radio activities, over the Internet.
(viii) Respondent’s use of the <radioglobo.net> and <radioglobo.org> domain names is diluting and weakening the unique and distinctive significance of Complainant’s RÁDIO GLOBO mark. Respondent’s use of the <radioglobo.net> and <radioglobo.org> domain names could tarnish Complainant’s RÁDIO GLOBO mark by giving the impression that Respondent is an affiliate of Complainant.
(ix) Respondent’s use of domain names identical, and therefore confusingly similar to, Complainant’s RÁDIO GLOBO mark has caused, and if not altered by the Panel, will continue to cause serious and irreparable injury and damage to Complainant and to the goodwill associated with Complainant and its RÁDIO GLOBO mark.
The Complainant requests transfer of the <radioglobo.net> and <radioglobo.org> domain names to the Complainant and such other and further relief as the Panel deems appropriate.
The Respondent did not reply to the Complaint or otherwise participate in the proceedings.
6. Discussion and Findings
The ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy") is incorporated into the registration agreement between the Respondent and the Registrar (Network Solutions Inc.) for the domain names the subject of this proceeding. Paragraph 4(a) of the Policy requires that the Respondent submit to this administrative proceeding in the event a third party such as the Complainant asserts that:
- the Respondent's domain names are identical or confusingly similar to a trade mark or service mark in which the complainant has rights; and
- the Respondent has no right or legitimate interests in respect of the domain names; and
- the domain names have been registered and are being used in bad faith.
The Policy provides that the Complainant must prove that each of these three elements are present.
Domain Names Confusingly Similar to the Mark of the Complainant
The Complainant appears to be arguing first, that it has used in connection with its services the words "radio globo" alone over such a long period and so extensively that it has acquired rights in the unregistered service mark made up of the words "radio globo" alone, which is identical to the disputed domain names, and second, that its registered trade mark "RÁDIO GLOBO – LIGADA EM VOCÊ" is confusingly similar to the disputed domain names <radioglobo.net> and <radioglobo.org>.
Evidence provided by the Complainant of use of the words "radio globo" alone is (a) registration in Brazil of RÁDIO GLOBO SA as the Complainant’s company name and presumably use of this name in connection with the company since its incorporation in 1944, (b) registration by the Complainant in Brazil since 1986 of the service mark set out above which includes the words "rбdio globo", and (c) the issue of a radio transmission licence to the Complainant in Brazil in 1973. Evidence submitted by the Complainant in the form of a printed copy of material provided at the website <radioglobo.com.br> shows that the website uses "Radio Globo RJ", "Radio Globo SP", "Radio Globo1220AM" and "1100AM Radio Globo" as well as refers to "Radio Globo" in the text of at least two pages of the material provided. However, a copyright notice in this material refers to another entity and not the Complainant, stating "Copyright© 1998 Sistema Globo de Radio. Todos os direitos reservados." The Complainant asserts, but provides no evidence which shows, that Radio Globo S.A. "is a company of the Sistema Globo de Radio". A search by the Panel for registration information regarding the domain name <radioglobo.com.br> in Whois at the <registro.br> website on January 23, 2001 indicates that Radio Globo Eldorado Ltda is the registered "entitade" with "ID" SGR and "nome" Sistema Globo de Radio. There is no mention in either the Complainant’s submissions or in its annexed documentation, of the Complainant having an interest in, or being connected to, the entity Radio Globo Eldorado Ltd listed as the registration "entitade" for the domain name <radioglobo.com.br>.
Evidence of a connection between the Complainant and its use of words making up a disputed domain name is particularly important if the Complainant is arguing that it has used the words making up the domain name to such an extent as to give rise to rights in an unregistered service mark or trade mark made up of those words. The evidence of use of the words "Radio Globo" alone, on a website which is registered in the name of an entity with which there is no apparent connection with the Complainant shows that some other entity (and not just the Complainant) seems to be using the words "radio globo" alone. This suggests that the Complainant is unlikely to have acquired through use, rights in a service mark made up of the words "radio globo". Also, the Complainant provides no evidence of the timing of broadcasts, or the duration or number of times radio broadcasts have apparently been made, either from this website or otherwise, using the words "Rбdio Globo". In the absence of sufficient evidence of use of the words "radio globo" alone in connection with the Complainant’s products or services, the Panel cannot find that the Complainant has rights in a service mark or trade mark made up of the words "radio globo" alone.
The Complainant has however, provided evidence which shows that it is the holder of the Brazilian registered mark "RÁDIO GLOBO – LIGADA EM VOCÊ" and has been so since April 8, 1986. The Complainant has provided no evidence of use of the entire registered mark "RÁDIO GLOBO – LIGADA EM VOCÊ" and has provided only very limited evidence of use of part of its registered mark (ie. use of the words "Radio Globo" alone). The Complainant’s registered mark is not identical to the disputed domain names <radioglobo.net> or <radioglobo.org>. Other than the .net and .org additions required for technical reasons, there are the additional words "Ligada em vocк". It is clear that if the domain names also included words similar to "Ligada em vocк" then the domain names would certainly be capable of being confusingly similar to the Complainant’s service mark. However, the domain names use only the words "radio" and "globo" which are words generic to, and commonly descriptive in, at least Portuguese (with the addition of an accent over the ‘a’), Spanish and Italian, three languages used by hundreds of millions around the world.
"Radio" is a well understood word common to all these languages as well as English. Various definitions and translations of the word "globo" are set out below:
(a) <www.priberam.pt/DLPO> accessed by the Panel January 27, 2001;
Dicionбrio Universal Lнngua Portugesa; Globo: (do Lat. Globu s.m) corpo esfйrico, esfera terrestre, bola, orbe
(b) <www.dicionarios.com> accessed by the Panel January 27, 2001;
Diccionario General de la Lengua Espбnola Vox; Globo: 1m. Esfera (espacio limitade), fig. En globo en conjunto (vb.englobar) 2. Cuerpo esfйrico o esferoidal, especialmente la Tierra 3. Especie de fanal de cristal con que se cubre una luz para que no moleste a la vista o simplemente por adorno 4. Bocadillo (trozo)…etc.
(c) <www.worldreference.com/it/en/translation> accessed by the Panel January 27, 2001; translated the Italian word "globo" into English as "globe" (The Collins Italian Dictionary 1995 Harper Collins Publishing)
(d) <www.allwords.com> accessed by the Panel January 27, 2001;
translated the Italian and Spanish word "globo" both into English as "(the globe) the Earth" and "any approximately ball-shaped object" and in Spanish also as a "balloon".
(e) <www.freedict.com> accessed by the Panel January 27, 2001; translated the Portugese word "globo" into English as "globe".
(f) <www.dictionaries.travlang.com/PortugeseEnglish> accessed by the Panel January 27, 2001; translated the Portugese word "globo" into English as "ball, ball-bearing, globe).
It is clear then that the words "radio" and "globo" which make up the disputed domain names, have some common generic meanings in a number of languages. These words, when written together and translated into English, would at least have the meaning of "global radio". By themselves the words, in at least Portugese, Italian and Spanish, can indicate a product or service (ie. Global radio services or products) and not necessarily the source of that product or service. It can be concluded then that many Internet users would simply read the domain names <radioglobo.net> and <radioglobo.org> as ones which probably concern themselves with radio related products or services on a global basis. Many Internet users would not necessarily even link, let alone confuse, the domain names with the Brazilian service mark of the Complainant.
Nevertheless, it is equally clear that the disputed domain names <radioglobo.net> and <radioglobo.org> incorporate the first part of the Complainant’s service mark "RÁDIO GLOBO – LIGADA EM VOCÊ" registered in Brazil. Without sufficient evidence of how the Complainant’s registered service mark is actually being used or perceived it is difficult to determine whether or not the domain names are in fact confusingly similar to the Complainant’s registered mark. Without any such evidence the Panel can only compare the domain names with the registered service mark without the benefit of how the registered mark has been used. If it is assumed that the Complainant’s assertions as to the use of its registered mark are proven, it can be said that the domain names are capable of being confusingly similar to the Complainant’s service mark, at least in Brazil. Even if this confusion would only arise among persons in a limited geographical area such as in Brazil, the domain names remain capable of being confusingly similar to the service mark of the Complainant within the meaning of Paragraph 4(a)(i) of the Policy. However, in light of the Panel’s findings concerning the second and third elements of Paragraph 4 of the Policy it is not necessary for the Panel to come to any conclusion in this regard.
Rights to and Legitimate Interests in the Domain Name
The Respondent has not responded to the complaint and hence has not indicated whether or not it has any right or legitimate interests in respect of the domain names. However, the onus of proving that the Respondent has no such right or interest lies, at least initially, upon the Complainant. Proving that the Respondent has no rights or legitimate interests in respect of the Domain Names involves proving a negative. Proving a negative can be particularly difficult. Paragraph 4(c) of the Uniform Policy sets out circumstances, in particular but without limitation, which, if found by the Administrative Panel to be proved, demonstrate the Respondent’s rights or legitimate interests to the domain name for the purposes of paragraph 4(a)(ii). The provisions of this paragraph are as follows:
"c. How to Demonstrate Your Rights to and Legitimate Interests in the Domain Name in Responding to a Complaint.
When you receive a complaint, you should refer to Paragraph 5 of the Rules of Procedure in determining how your response should be prepared. Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):
(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."
The Respondent has not provided evidence of any of the circumstances set out in paragraph 4 (c) of the Uniform Policy, or of any other circumstances giving rise to a right to or legitimate interest in the domain names. It must be remembered however, that the Respondent is not required to show that it has such a right or legitimate interest but rather the onus is on the Complainant, at least initially, to prove that the Respondent has no right or legitimate interest in the domain names. The Complainant has not licensed or otherwise authorised the Respondent to use the disputed domain names. However, unlike WIPO Case D2000-0003 concerning "telstra", this proceeding does not involve an invented word or phrase. The root of the domain names in dispute (ie. "radioglobo" ) is one which a person might use without necessarily seeking to create an impression of an association with the Complainant. A search using an Internet search resource (the Panel used metacrawler.com and google.com on January 24, 2001) for the words "radio globo" or "radioglobo" resulted in a large number of results with links to Italian, Portuguese and Spanish entities using a similar or the same name, radio and entertainment information and directory sites and others which dealt with all manner of matters associated with global radio, entertainment, information and technical sites in the Portuguese, Spanish, Italian and other languages. Hence the Complainant’s assertion that the words "radio globo" incorporated into the disputed domain names are uniquely associated with the Complainant and its entertainment products and services, at least in their use on the Internet, is not plausible. Given the generic nature of the two words and expression "radio globo", any number of persons might have a right or legitimate interest in respect of the disputed domain names.
The mere fact that the websites linked to the two domain names <radioglobo.net> and <radioglobo.org> are said to be under construction and that they are registered in the Respondent’s name, do not by themselves, necessarily show that the Respondent has no right or legitimate interests in respect of the domain names. Further, the fact that the domain names are not now being used is not, without any other evidence, sufficient by itself to prove that the Respondent has no right or legitimate interest in respect of the domain names. The Complainant has provided no evidence, for example the results of a search at any government authority in the Respondent’s address jurisdiction (ie. USA), which would tend to substantiate the Complainant’s assertions that the Respondent:
- does not operate a business or other organization or offer goods or services using "radio globo" mark.
- is not commonly known or identified by the name "radio globo".
Even the Complainant’s assertion that the Respondent does not hold a trademark or service mark for "radio globo" in Brazil is not conclusively substantiated by the evidence provided - only a search of the Brazil Trade Mark Office for Rбdio Globo as a prefix ("por prefixo") is provided.
An electronic search of telephone directories, company and business names, and a wider search of the trade mark offices, in at least Brazil and the USA (the jurisdictions where the Complainant and Respondent have their addresses) as well as a search of the Internet itself, could relatively easily have been conducted to potentially provide substantiation for the assertions of the Complainant but the Complainant has not provided any such evidence. This lack of evidence is critical when the words that make up the domain name are generic and are ones that many persons might legitimately choose without necessarily seeking to create an impression of an association with the Complainant.
As far as non-use of the domain names is concerned, the Report of the WIPO Internet Domain Name Process of April 30, 1999, on which ICANN based its Policy, refers at paragraph 93 to the non-use of a domain name in the following terms:
"Furthermore, there are circumstances in which it might be considered entirely legitimate to register a domain name and to hold it without "use" for an indefinite period…..we consider that evidence of registration without any use, particularly in relation to a number of domain names that correspond to the intellectual property rights of others, is pertinent for the purpose of assessing whether registrations should be cancelled because they are abusive. Non-use, especially coupled with offers to re-sell and other appropriate evidence, is better dealt with in the context of the administrative procedure for cancellation of abusive registrations……"
The number of disputed domain names concerning this Respondent is only two, while two others are the subject of complaint against two other apparently unrelated respondents in WIPO Cases D2000-1705 and D2000-1706.
The circumstances of this proceeding are then (1) the words forming the disputed domain names <radioglobo.net> and <radioglobo.org> are generic in that they are words which a person might use without necessarily seeking to create an impression of an association with the Complainant, (2) there is no evidence of bulk registration of domain names by the Respondent that are similar to the disputed domain names, and (3) the Complainant has failed to provide sufficient evidence (at least some further evidence beyond that provided is likely to be readily available) to substantiate its assertions indicating that the Respondent has no rights or legitimate interests in the disputed domain names.
While this case could be disposed of at this stage, there are a number of reasons for rejecting this Complaint which are common to a determination of both (a) whether or not the Respondent has any right or legitimate interest in respect of the domain names, and (b) whether or not the domain names have been registered and are being used in bad faith. In view of this and as full reasons may be useful, the Panel will proceed to also consider the third element of paragraph 4(a) of the policy concerning registration and use in bad faith of the disputed domain names.
Domain Names Registered and Used in Bad Faith
While the circumstances set out in the preceding paragraphs are relevant to the issue of whether the Respondent has a right or legitimate interest in the domain names <radioglobo.net> and <radioglobo.org>, they are also relevant to the issue of the third element of paragraph 4(a) of the Policy namely, whether either of the domain names "has been registered and is being used in bad faith". It is the Complainant who must also prove this third element. The domain names <radioglobo.org> and <radioglobo.net> do resolve to web sites. However, the web sites merely contain a notice that they are "Under Construction". It is not clear whether this is a recent situation or one which has continued since the creation of the record of the domain names on April 8, 1999 (as shown in the Whois search of the domain names records of Network Solutions dated 1 December, 2000). Other than the Complainant’s assertions, there is no evidence:
- of advertising, promotion or display to the public of the domain name, or
- that the Respondent has offered to sell, rent or otherwise transfer the domain name to the Complainant, a competitor of the Complainant, or any other person.
There is no clear evidence of positive action being undertaken by the Respondent in relation to the domain names unless the notice that the sites are "Under Construction" can be taken as evidence of use of the domain names.
In this case the evidence of bad faith, other than the Complainant’s unsubstantiated assertions, appears to simply be:
- Respondent has failed to respond to the complaint,
- Respondent has registered the domain names and displayed a notice that the websites to which the disputed domain names resolve are "under construction".
There is no evidence of conduct such as that set out in paragraph 4(b) of the Policy (as asserted by the Complainant) or of other conduct which might be considered evidence of bad faith, such as the Respondent trying to conceal its true identity or providing false contact details (cp. WIPO Case No. D2000-0236 Hyosung Corporation v. HH) or is in breach of its registration agreement.
Paragraph 15 (a) of the Rules requires that "A Panel shall 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." Paragraph 4(a) of the Policy is also relevant when considering whether or not unsubstantiated statements of the Complainant can be accepted as fact by the Panel when the Respondent has failed to make a response. This paragraph 4(a) requires not only that the Complainant "assert to the Applicable Provider, in compliance with the Rules of Procedure,…." the three elements set out at subparagraphs 4(a)(i),(ii) and (iii) of the Policy, but also that "… the complainant must prove that each of these three elements are present." This paragraph 4 of the Policy distinguishes between the assertion and proof of the three elements set out therein. In the absence of sufficient proof to establish that the three elements are present the complaint cannot succeed. Mere assertions are not enough to prove the three elements of paragraph 4 of the policy. In this case the Panel finds that there is not sufficient evidence upon which this Panel could conclude that the Respondent has registered and is using the domain names <radioglobo.org> and <radioglobo.net> in bad faith.
It should be noted that this case is one where the evidence provided simply shows that the Respondent has registered the domain names and displayed a notice that the websites were under construction. It would be contrary to the purpose of the Policy to enable a person to register a domain name confusingly similar to that of a service or trade mark holder, when the purpose of doing so was illegitimate and in bad faith (within the meaning of the Policy) but this was hidden by the Respondent simply remaining silent when a dispute arose. However, it would also be contrary to the rights of the Respondent to require cancellation or transfer of a domain name in circumstances where the disputed domain name is made up of generic words which a person might use without necessarily seeking to create an impression of an association with the Complainant, and where there is virtually no evidence which shows that the Respondent has no right or legitimate interest in respect of a domain name, and there is also no evidence that the domain name has been registered and is being used in bad faith.
The Panel finds that (a) the Complainant has failed to provide sufficient evidence to show that the Respondent has no rights or legitimate interests in respect of the domain names <radioglobo.org> and <radioglobo.net>, and (b) the Complainant has provided no or inconclusive evidence of its assertions concerning the conduct, intent and purpose of the Respondent with regard to the registration and use of these domain names. The Panel therefore concludes that the Complainant has failed to show, as required by Paragraph 4(a) of the Policy, that (i) the Respondent has no rights or legitimate interests in respect of the domain names <radioglobo.org> and <radioglobo.net> and (ii) the domain names have been registered and are being used in bad faith. Accordingly, the Complaint is denied.
Frank R. Schoneveld
Dated: January 31, 2001