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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Albacom S.P.A. v. Capello Laura
Case No. D2001-1483
1. The Parties
The Complainant is Albacom S.p.A., Via Bianchini 15, Roma, Italy.
The Respondent is Capello Laura, Viale Che Guevara, Albenga (Savona), Italy.
2. Domain name and Registrar
The contested domain name is <albacom.com>.
The Registrar is Network Solutions, Inc.
3. Procedural History
The Complaint was received by WIPO Arbitration and Mediation Center by e-mail on December 21, 2001, and in hardcopy on December 27, 2001.
WIPO acknowledged receipt of the Complaint by e-mail on December 27, 2001.
WIPO requested the Registrar by e-mail on January 7, 2002, to verify the data.
On January 11, 2002, WIPO received the response of the Registrar stating that the current Registrant of the domain name <albacom.com> is Laura, Viale Che Guevara, Albenga (Savona), and the Administrative contact, Technical contact and Billing contact is Laura Capello, Viale Che Guevara, Albenga (Savona).
On January 14, 2002, the Complainant sent by e-mail the Amendment to the Complaint to correct the name of the Registrant and to add some new elements of bad faith of the Registrant.
On January 15, 2002, WIPO acknowledged receipt by e-mail of the Amendment to the Complaint.
WIPO verified that the Complaint satisfies the formal requirements of the Rules for Uniform Domain Name Dispute Resolution Policy, (the Rules) and the WIPO Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied with the requirements. The Complaint was properly notified in accordance with the Rules, paragraph 2(a). Network Solutions, Inc. has confirmed that <albacom.com> (the domain name) was registered through Network Solutions, Inc. and that Laura (the Respondent) is the current Registrant. The Registrar has further confirmed that the Policy is applicable to the domain name.
On January 16, 2002, WIPO notified the Respondent of the Complaint in the usual manner and informed the Respondent inter alia that the last day for sending its Response to the Complainant and to WIPO is February 6, 2002.
On February 13, 2002, the Complainant sent to WIPO, for knowledge, the letter in which required Network Solutions, Inc. not to perform any transfer or modification of "the domain name" <albacom.com> pending an administrative proceeding before WIPO.
The Panel was properly constituted.
The undersigned Panelist submitted a signed Statement of Acceptance and Declaration of Impartiality and Independence.
No further submissions were received by WIPO or the Panel, as a consequence of which, the date scheduled for the issuance of the Panel’s Decision is March 6, 2002.
4. Factual Background
The Complainant is one of the three leading telecommunications operators in Italy and is developing its business in the field of the Internet, telecommunications, data and voice services. During the last years this Company has built up a considerable reputation and goodwill in Italy under that name.
The Complainant is also owner of the registered trade mark "ALBACOM" No. 716943 in International classes 9 and 38. The trade mark has been filed in 1995 in the name of Multiservizi Lavoro Sud S.r.l. and furthermore has been assigned on March 2001, to Albacom S.p.A. "the Complainant". Thus, the trade mark has been used consecutively during the past years.
The Complainant is also the owner of several registered trade marks including the word "ALBA" in conjunction with the following suffixes (eg: albanet, albaclick, etc.) as well as the business name "Albacom".
The Respondent owner of the <albacom.com> domain name in dispute, was first Mr. Matteo Ricci Mingani identified as "Nightfly". Subsequently, the domain name has been transferred to a not well identified LAURA, and finally the Administrative, Technical and Billing contacts were changed into a server who is operating in connection to Network Solutions, Inc. in Taiwan.
The Respondent has been using the domain name to give access to a porno website, for banners and with the aim to put on sale the domain name <albacom.com>.
On May 24, 2001, Mr. Andrea Monti attorney appointed by Albacom S.p.A. tried to contact Mrs. Laura through her e-mail address asking her to sell the domain name <albacom.com>.
On May 25, 2001, Mrs. Laura replied saying that the domain name was for sale but two companies were interested at the moment and she mentioned Albacom S.A. and Albacom S.p.A. (the Complainant).
On June 11, 2001, Mr. Andrea Monti sent to Mrs. Laura another e-mail asking information about the domain name. On the same date Mrs. Laura confirmed that the domain name was still available. After that no more correspondence has taken place between Mr. Andrea Monti and Mrs. Laura.
On December 25, 2001, Mrs. Laura sent her last e-mail to Mr. Andrea Monti informing that the cost of the domain name was EURO 5.000,00 (corresponding to US$ 4.500).
The Complaint was filed with WIPO on December 21, 2001, and sent at the same
time to the owner of the domain name.
5. Parties’ Contentions
The Complainant contends that the domain name is identical or confusingly similar to its trade mark "ALBACOM".
The Complainant contends that the Respondent has no right or legitimate interests in respect of the domain name. In fact the Complainant declares that the Respondent knew and was unquestionably aware of the importance and of the well-known trade mark, business name and identity of the Complainant.
In fact the Registrant has tried and is still trying to sell the domain. The Complainant asserts to have never granted licence to the Respondent as agent or partner of the Complainant for the use of its trade mark.
The Complainant declares that the domain name <Albacom.com> has been registered and is being used in bad faith. Evidences of bad faith of the Respondent are based on the fact that the Respondent has been trying to sell the domain name, and on the fact that the ad "albacom.com_domain for sale" was written on the <www.albacom.com> website.
The use of the banner to connect people to hardcore and porno websites makes the Complainant sure of the fact that the registration of the domain name was made with the one and only purpose of taking illegal advantages and economic incomes by selling the domain name.
B. The Respondent
The Respondent has not responded.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) the domain name is identical or confusingly similar to a Trade mark or service mark in which the Complainant has rights; 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.
Where a Respondent, who has been properly notified, fails to respond, the Panel is entitled to draw such inferences as it considers appropriate (Rule 14(b)). However, the facts speak for themselves and it is necessary in this case for the Panel to draw any specific inferences, save that where there is doubt, the Panel will resolve the doubt in favour of the Complainant.
6.1 Identical or Confusingly Similar
The trade mark registration No. 716943 has been filed on April 20, 1995 and has been assigned to Albacom S.p.A. "the Complainant" on March 28, 2001 under record No. RM2001E161.
The Panel finds that the Complainant has trade mark rights and the Domain Name <albacom.com> is identical to the trade mark in which the "the Complainant" has rights.
6.2 Respondent’s Rights or Legitimate Interests
The Panel is of the view that the Complainant’s trade mark is known and famous in the field of telecommunications as well as in TV commercials, newspaper advertising, Internet websites, corporate brochures and sponsorship campaigns.
The Panel accepts the Complainant’s assertion not to be in any relationship with the Respondent.
Paragraph 4(c) of the Policy which is directed to Respondents, indicates how a Respondent may show to have rights or legitimate interests in respect of a domain name. That paragraph comprises a non-exhaustive list. While the obligation is on the Complainant to prove the elements of paragraph 4(a) of the Policy in order to succeed in a Complaint, once the Complainant has succeeded in making out a prima facie case under paragraph 4(a) (ii) of the Policy, the burden shifts on to the Respondent.
The Respondent has not responded. The Panel can think of no reason why the Respondent could reasonably be said to have any rights or legitimate interests in respect of the domain name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name.
6.3 Bad Faith
Paragraph 4(b) of the Policy comprises a non exhaustive list of circumstances any of which, if found by the Panel to be present, shall constitute evidence of bad faith registration and use of the domain name.
Paragraph 4(b) appears to the Panel to be relevant here, as follows:
"For the purposes of paragraph 4(a)(iii) the following circumstances in particular but without limitation if found by the Panel to be present shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered… the domain name primarily for the purpose of selling… the domain name registration to the complainant…for a valuable consideration in excess of your documented out of pocket costs directly related to the domain name…"
The Panel cannot be certain of the reason why the Respondent registered the domain name. Having stated that the domain name refers exclusively to the Complainant, the Respondent has no obvious legitimate reason for having registered it.
The Panel has noticed that the Respondent has registered its domain name on September 7, 1999, and right after registration the Respondent has tried to sell said domain name for an amount of money well in excess of his out of pocket costs.
The Complainant has set out its allegations clearly and those allegations appear to the Panel to confirm exactly the situation. The Panel finds that there is a high probability that the Respondent registered the domain name with the only aim to sell it to the Complainant.
In this circumstances the Panel finds that the domain name has been registered and is being used in bad faith within the meaning of paragraphs 4(b)(i) and 4(a)(iii) of the Policy.
In light of the foregoing, the Panel finds that the domain name is identical to the trade mark in which the Complainant has rights, and that the Respondent has no rights or legitimate interests in respect of the domain name and that the domain name has been registered and is being used in bad faith. Accordingly, the Complainant succeeds.
The Panel decides the domain name <albacom.com> be transferred to the Complainant.
Dated: March 6, 2002