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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Sociedad Rectora de la Bolsa de Valores de Bilbao, S.A. v. domains for sale $500

Case No. D2001-0091

 

1. The Parties

The complainant is Sociedad Rectora de La Bolsa de Valores deBilbao, S.A., a company incorporated in Spain with its principal place of business at Calle Josй Marнa Olabarri 1, 48001 Bilbao, Spain, and represented by Mr. Antonio Creus & Mrs. Carmen Burgos from Cuatrecasas Abogados ("the Complainant").

The respondent is an American legal entity named "domains for sale $500", with registered address in the United States ("the Respondent").

 

2. The Domain Name and Registrar

The domain name at issue is <bolsadebilbao.org> ("the Domain Name"). The Registrar of the Domain Name is eNom, Inc. located at 16770 Northeast 79 th Street, Suite 205, Redmond – WA, 98052 USA ("the Registrar"). The Domain Name was registered on

June 23, 2000.

 

3. Procedural History

A complaint was submitted to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on January 18, 2001/

January 19, 2001, in email version and hardcopy respectively, pursuant to the Uniform Domain Name Dispute Resolution Policy ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 24, 1999 ("the Complaint").

This was done satisfying the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and the WIPO Center’s Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules").

On January 23, 2001, Acknowledgement of Receipt of Complaint was sent to the Complainant.

On January 23, 2001, a Request for Registrar Verification was transmitted to the Registrar and the Registrar confirmed by e-mail that the domain name <bolsadebilbao.org> is registered with the Registrar and that the Respondent is the current registrant of the Domain Name.

On January 26, 2001, a Notification of Complaint and Commencement of Administrative Proceeding ("the Commencement Notification") was transmitted by email to the Respondent setting a deadline by which the Respondent could submit a response to the Complaint.

No Response was submitted by the Respondent to the WIPO Center; on February 16, 2001, Notification of Respondent Default was given.

On March 6, 2001, the WIPO Center sent a Notification of Appointment of Administrative Panel to the parties, in which Mayer Gabay was appointed as Sole Panelist. The Sole Panelist finds that the Panel was properly constituted and appointed in accordance with the Rules and the Supplemental Rules.

 

4. Factual Background

On the basis of the documents submitted by the Complainant, the following facts can be established:

The Complainant is the owner of the following trademarks registered at the Spanish Patents and Trademarks Registry (Oficina Española de Patentes y Marcas), regarding this Complaint:

- "BOLSA DE BILBAO", registered on December 5th 1991 as a Class 14 trademark, with registration number 1562089.

- "BOLSA DE BILBAO", registered on December 5th 1991 as a Class 16 trademark, with registration number 1562090.

- "BOLSA DE BILBAO", registered on March 5th 1992 as a Class 35 trademark, with registration number 1562091.

- "BOLSA DE BILBAO", registered on March 5th 1992 as a Class 36 trademark, with registration number 1562092.

- "BOLSA DE BILBAO", registered on March 5th 1992 as a Class 41 trademark, with registration number 1562094.

Likewise, the Complainant is the registrant of the following domain names:

- <bolsabilbao.es>, registered by SOCIEDAD RECTORA DE LA BOLSA DE VALORES DE BILBAO, S.A. at NIC-ES.

- <bolsabilbao.net>, registered by SOCIEDAD RECTORA DE LA BOLSA DE VALORES DE BILBAO, S.A. at Network Solutions.

The Complainant is the managing corporation of the "Bolsa de Bilbao" (Bilbao Stock Exchange), which is one of the four Stock Exchanges existing nowadays in Spain, incorporated on July 26, 1989. Besides serving as a trading centre, it offers to its users other value added services through its websites

The Bilbao Stock Exchange is a well-known institution in the Basque and the Spanish financial system, and has an increasing and recognised international projection.

The volume of purchases and sales realised in the Bilbao Stock Exchange was, in the year 1999, 12.478.950.000 Pesetas (75.000.000 Euro).

Respondent is the registrant of <bolsadebilbao.org>, which was registered through the Registrar (eNOM) on June 23, 2000. From the data supplied by the Registrar, the registrant of the Domain Name appears to be a supposed American company named "domains for sale $500" located in the United States (the Respondent), that the Complainant has not been able to identify, since the web page corresponding to the Domain Name does not include any content (only that it is located in the United States and its email address). After a search in several Internet engines, the Complainant found out that the Respondent had published in two sites a story about homosexual pornography, entitled "Tнos en Minifalda".

In any event, based on the name of the Respondent ("domains for sale $500"), it seems to be that the activity it develops consists on registering and reselling domain names.

These are the only facts that can be established since neither other facts have been established nor the above facts have been disputed by the Respondent.

 

5. Applicable Rules

Paragraph 4 (a) of the Policy directs that Complainant must prove each of the following:

(i) the domain name in issue is identical or confusingly similar to Complainant's trademark, and

(ii) the Respondent has no rights or legitimate interest in respect of the domain name, and

(iii) the domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the Policy sets out, by way of example, four circumstances, each of which, if proven, shall be evidence of the registration and use of the domain name in bad faith for the purpose of Paragraph 4(a)(iii) above.

 

6. Parties' Contentions

6.1 The Complainant

In the Complaint, the Complainant states that there are circumstances indicating that the Respondent has registered the Domain Name primarily for the purpose of selling the Domain Name registration to the Complainant who is the owner of the trademark, for valuable consideration in excess of the documented out-of-pocket costs directly related to the Domain Name.

The grounds for the Complaint are:

(1) the Domain Name <bolsadebilbao.org>is identical or confusingly similar to the "BOLSA DE BILBAO" trademark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interest in respect of the Domain Names as provided in Paragraph 4(a)(ii) in connection with Paragraph 4(c) of the Policy regarding <bolsadebilbao.org>. The Respondent is not using nor has used, neither is demonstrating nor has demonstrated an intention to use the Domain Name legitimately for any kind of professional or private activities but its resale.

(3) <bolsadebilbao.org> was registered in bad faith as provided in p4(a)(iii) in connection with Paragraph 4(b) of the Policy.

In the Complaint, the Complainant requests that the Respondent transfer the ownership of the Domain Name in issue to it.

6.2 The Respondent

No Response was submitted to the WIPO Center by the Respondent.

 

7 Discussion and Findings

7.1 Identical or confusingly similar

The Domain Name <bolsadebilbao.org> is clearly confusingly similar to the Complainant's trademarks "BOLSA DE BILBAO". And the word "ORG" makes no difference in connection thereto.

7.2 Rights or legitimate interest

According to the Complainant the registration by the Respondent of the Domain Name was not guided by a legitimate purpose, such as the use of the Domain Name for the development of the commercial activities linked to a trademark owned by the Registrant, but only intended to impede the use of the Domain Name by the Complainant, awaiting its future resale.

The Complainant was not able to identify clearly the Respondent’s commercial activity but, based on the way its name appears in eNOM ("domains for sale at $500"), it may be understood that its activity is the registration of domain names corresponding to trademarks for its future resale at a much higher price than the registration fees. And it may be stated that the fact that the Domain Name was not further used by the Respondent but when registering the disputed Domain Name, supports that it did not intend to use it for any kind of professional or private activities other than its resale.

The Respondent had no right on the trademarks referred to the name "BOLSA DE BILBAO" nor any relation with the Bilbao Stock Exchange that would make it legitimate for him to use such trademark in a Domain Name.

In view of the above, it seems to be that the only goal of such a registration was to impede the use of the Domain Name by the Complainant.

Paragraph 4(c) of the Policy states circumstances which demonstrate a Respondent's right or legitimate interest to a domain name. The Paragraph sets out by providing:

"Any of the following circumstances (...) found by the Panel to be proved on its evaluation of all evidence presented shall demonstrate your rights or legitimate interest to a domain name (...) ".

Therefore, on the basis of this Paragraph, upon the prima facie shown by the Complainant that the Respondent lacks rights or legitimate interests in the Domain Name, the Respondent has the burden of proof of its rights or legitimate interest in the Domain Name. Since no Response was ever submitted by the Respondent and no evidence has been provided that it used the Domain Name in connection with a bona fide offering of goods or services, prior to receiving the notice to him of the dispute, no rights or legitimate interest may be seen as proven.

In conclusion, under the circumstances of this case, it should be held that the Respondent has no rights or legitimate interest in the Domain Name <bolsadebilbao.org>, in accordance with Paragraph 4(c) of the Policy.

7.3 Bad faith

4(b)(i) of the Policy establishes that there is bad faith at the moment the disputed domain name is registered if there are circumstances indicating that the registration of the domain name was done primarily for the purpose of selling or otherwise transferring the domain name registration to the owner of the trademark, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name (i.e. an unfair profit).

The fact that the Respondent only provided its email address and that no other identity details may be found (only that it is located in the United States and that it is the author of the pornography story), suggests that when registering the Domain Name, the Respondent was acting on criteria opposed to good faith.

Likewise, the fact that in this case the Domain Name is so obviously connected with the Complainant and its characteristic services suggests that any use by anyone not related with the Complainant may just be an act of opportunistic bad faith (as stated in the Decision adopted in WIPO Case No. D2000-0277).

Furthermore, the fact that the Respondent chose a name which is identical to the trademark of the Complainant, a well-known financial institution in Spain, impeding the development of its activities on-line, states circumstances which are found to be evidence of the registration and use of a domain name in bad faith.

In conclusion, the Panel finds that, by having registered the Domain Name, the Respondent has infringed a prior trademark right, and it should be held that the Respondent has acted in bad faith.

 

8. Decision

In light of the foregoing, the Sole Panelist finds that the Domain Name <bolsadebilbao.org> at issue is confusingly similar to the Complainant's trademark "BOLSA DE BILBAO", that the Respondent has no rights or legitimate interest in respect of the Domain Name and that the Domain Name has been registered and used in bad faith. Consequently, the Sole Panelist decides that the Domain Name be transferred by the Registrar from the Respondent to the Complainant.

 


 

Mayer Gabay
Sole Panelist

Dated: March 30, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2001/d2001-0091.html

 

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