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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Adecco S.A. –v- XXXXXX (Registrant ID C953978-LRMS)
Case No. D2002-0106
CH 1275 Chéserex
Respondent:XXXXXX (Registrant ID C953978-LRMS)
2.The Domain Name and Registrar
The Complaint was received by WIPO by email on January 31, 2002, and in hardcopy form on February 4, 2002. WIPO has verified that the Complaint satisfies the formal requirements of the UDNDR Policy, the UDNDR Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.
The Complaint was properly notified in accordance with the Rules, paragraph 2(a). Interdomain S.A. has confirmed that the domain name <adecco.info> ("the Domain Name") was registered through Interdomain S.A. and that XXXXXX (Registrant ID C953978-LRMS) ("the Respondent") is the current registrant. The Registrar has further confirmed that the Policy is applicable to the Domain Name.
On February 14, 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 was March 6, 2002.
A Response claiming the Respondent to be one Maria Garcia of Guatemala was received by WIPO by email on March 6, 2002, and in hardcopy form on March 12, 2002. On March 25, 2002, WIPO received the Complainant’s Reply to the Response by email.
The Panel was properly constituted. The undersigned Panellist submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
No further submissions were received by WIPO, as a consequence of which the date scheduled for the issuance of the Panel’s Decision was April 9, 2002.
On April 1, 2002, the Respondent sent an email to WIPO objecting to the inclusion in the papers of the Complainant’s reply to the Response.
Having read the papers in the case, including the Complainant’s reply to the Response and the Respondent’s email referred to above, the Panel issued the procedural order a copy of which is appended to this decision giving the Respondent a further opportunity to respond to the Complainant’s Response and inviting the Respondent to particularise in greater detail the nature of its business.
On April 6, 2002, the Respondent responded to the procedural order.
Before moving on to the facts it is necessary to deal with another procedural matter. By the time the papers in the case had been passed on to the Panel, there had been a number of communications between the parties and WIPO and submissions had been filed including the Complaint, the Response and the Complainant’s reply to the Response. All these communications had been in English. Subsequently, the Panel issued its procedural order and the Respondent has responded to that order again in English. However, when commencing the drafting of this decision the Panel noted that the Registrar had informed WIPO that the language of the Registration Agreement covering the Domain Name was in the Spanish language. Ordinarily, pursuant to paragraph 11 of the Rules, the language of the proceedings will be the language of the Registration Agreement.
Rule 11 empowers the Panel to determine otherwise "having regard to the circumstances of the administrative proceeding." In the view of the Panel it would be absurd to start the proceeding all over again in the Spanish language, unless the Respondent has been in any way seriously disadvantaged by having the proceeding conducted in English. The Respondent has not been disadvantaged. The Respondent has shown no unwillingness to correspond in English and the Panel has had no difficulty understanding the Respondent’s submissions. The fact that the Respondent, when registering the Domain Name, identified its registrant country as the United States suggests that insofar as the Respondent is concerned English could be at least as appropriate as Spanish for this purpose. The Panel determines that the language of this administrative proceeding should be English.
The Complainant is a well-known Swiss based corporation engaged internationally in the field of personnel recruitment, staffing and general human resources services. It is the proprietor of many trademark registrations for the word ADECCO e.g Swiss registration number 431224 dated May 9, 1996 and Spanish registration number 2039887 dated July 16, 1996 covering inter alia various human resource services in class 42.
The true identity of the Respondent is not known. The Registrar’s ownership records for the Domain Name list the name of the registrant, the name of the registrant organisation and all lines of the registrant’s address apart from the country as XXXXXX. The registrant country is identified as the United States and the registrant’s telephone number is identified as "+1.111". The registrant email is given as email@example.com. Similar ‘details’ are given for the administrative, billing and technical contacts. The Respondent’s email address is the same as that given for both Maria Garcia of Guatemala, the person identified as the Respondent in the Response, and Alfredo Garcia of Madrid, Spain, the Respondent’s representative. None of the documents in the case provide any further details on Ms Garcia or any business she may have.
The Respondent registered the Domain Name on September 21, 2001. The Domain Name is connected to a webpage dated November 2001, comprising a list of sites identified from search engine searches for "adecco". Most if not all of the sites so identified are sites of or associated with the Complainant.
The Complainant contends that it has strong and exclusive rights in the mark ADECCO and that the Domain Name is identical with its trademark ADECCO.
The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant has not authorised or consented to the Respondent’s registration or use of the Domain Name.
Given that the Domain Name comprises the Complainant’s trademark, that the website is devoted in large part, if not exclusively to the Complainant’s sites and that the Complainant has given no permission to the Respondent to use its trademark in this way, the burden is on the Respondent to demonstrate why it has rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(c) of the Policy.
The Complainant refers to its email to the Respondent on November 23, 2001, and observes that there has been no reply. The Respondent has therefore not come forward with anything to demonstrate its rights or legitimate interests in respect of the Domain Name. Accordingly, the Respondent has no rights or legitimate interests in respect of the Domain Name.
Finally, the Complainant contends that the Domain Name has been registered and is being used in bad faith. It refers to the circumstances of the case and refers too to the Respondent’s deliberate attempt to obscure its true identity. The Complainant refers to a number of previous cases (eg WIPO Case No D2000-0003) Telstra Corp. Ltd –v- Nuclear Marshmallows in which the filing of false information by the Respondent was held by the Panel in that case to be indicative of bad faith registration and use.
In its reply to the Response the Complainant underlines what it regards as the iniquity of the false information filed with the Registrar by the Respondent when registering the Domain Name and casts doubt on the Respondent’s true identity being Maria Garcia, which it categorises as being the Spanish equivalent of John Smith in English and Hans Muller in German.
For completeness, it should be mentioned that other allegations were levelled at the Respondent by the Complainant, but the Panel has not felt it necessary to consider those matters for the purpose of issuing this decision.
The Response identifies the Respondent as Maria Garcia, 5a Av. 10-84, Zona 14, Edif. Cobella, Guatemala.
The Respondent’s objective is identified as being to provide an easy way to find the words "adecco" in the principal portals, the <.info> domain being designed for the provision of information. The Respondent asserts that by entering the site at <www.adecco.info>, the visitor receives correct information relating to the word "adecco" all over the world.
The Respondent accepts that the Domain Name is identical to the Complainant’s trademark, but claims that that does not mean that the Complainant has exclusive rights to the mark ADECCO.
The Respondent claims that notwithstanding the existence of the Complainant’s registered trademark, the Respondent has rights and legitimate interests in respect of the Domain Name "by virtue of having been the first to register it". The Respondent relies on a number of previous decisions to the effect that the existence of a registered trademark in the hands of the Complainant does not of itself mean that the Respondent does not have legitimate interests in the same name as part of a domain name.
The Respondent observes that it has been using the Domain Name connected to the website since the beginning of November 2001, whereas the first it heard of the Complainant’s objections was by way of an email dated November 23, 2001.
As to the allegation that the Respondent registered the Domain Name in bad faith and is using it in bad faith, the Respondent says that the allegation is misconceived because the Complainant had the opportunity to register the Domain Name during the sunrise period but elected not to do so and that after the conclusion of the sunrise period, domain names are provided on a first come, first served basis. "When somebody has preference and he does not use it, it is impossible to say that the second one in the queue has registered in bad faith."
The Respondent says that the Domain Name cannot be said to be being used in bad faith because, as the Domain Name indicates, the web page to which it connects provides information relating to the word "adecco". Far from doing anything in bad faith, the Respondent claims that it is "advertising for free the Adecco business and places all over the world". From the authorities cited to support this argument, it would appear that the Respondent is claiming that its use of the Domain Name is a fair, non-commercial use.
The Respondent deals with the allegation that the Respondent’s failure to respond to the Complainant’s initial email constitutes evidence of bad faith by saying that the email was a threatening communication which made no attempt to enquire as to why the Respondent had registered the Domain Name and the Respondent didn’t regard it as appropriate to respond to such a communication.
As to the Complainant’s allegations relating to the ownership information provided to the Registrar, the Respondent simply says that the email address was adequate to enable the Respondent to be contacted.
In the Respondent’s Response to the Procedural Order, the Respondent repeats much of what is said in the Response. In part, it deals with certain matters raised in the Complaint, which, as indicated above, the Panel has not regarded as relevant in coming to a decision under this administrative procedure. The Respondent’s Response to the Procedural Order does not in any way explain the information provided to the Registrar on registration of the Domain Name, despite a specific request from the Panel to do so. The Respondent did not take up the Panel’s invitation to particularise the nature of the Respondent’s business.
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 trademark 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 in bad faith and is being used in bad faith.
Identical or confusingly similar
There is no dispute between the parties that the Domain Name is identical to a trademark in which the Complainant has rights and the Panel so finds. The fact (if it be a fact) that, as asserted by the Respondent, the Complainant’s rights are not exclusive is irrelevant. The Policy does not call for rights, which are exclusive across all national boundaries and all business areas.
Respondent’s Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out a non-exhaustive list of circumstances, any one of which, if found by the Panel to have been proved shall demonstrate the Respondent’s rights or legitimate interests in respect of the Domain Name.
However, the need for the Respondent to demonstrate anything only arises once the Complainant has shown a prima facie case, the burden of proof under paragraph 4(a) being on the Complainant.
There is no dispute between the parties that ADECCO is a trademark of the Complainant and that Adecco is not a name of the Respondent. Furthermore, there is no suggestion that the Complainant has granted any licence to the Respondent to use its trademark. Moreover, the circumstances surrounding the registration of the Domain Name raise questions as to the Respondent’s motives in registering the Domain Name. The web page to which the Domain Name is connected, while it contains information relation to Adecco, is, or appears to the Panel to be somewhat haphazard and raises more questions than it answers. What purpose does it serve? What was the idea behind it?
The Panel finds that the Complainant has made out a prima facie case under this head and the Respondent has a case to answer.
Paragraph 4(c) of the Policy which is addressed to Respondents reads 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’s case is that it acquired rights in the Domain Name by being the first to register it and that prior to receiving any notice of the Complaint, it had made use of the Domain Name in connection with a bona fide offering of services (namely provision of information relating to the word Adecco) (sub-paragraph (i) of paragraph 4(c)). It is effectively claiming that in so doing it is making a legitimate non-commercial 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 (sub-paragraph (iii) of paragraph 4(c)).
It must have been evident to the Respondent from the nature of the Procedural Order issued by the Panel that the Panel was concerned as to the Respondent’s motives in registering the Domain Name and using it in the way that it has done. The Panel was concerned because the taking of somebody else’s trademark and using it without adornment as a domain name in circumstances where the Respondent is aware of the Complainant’s trademark and has no obvious justification for using that trademark inevitably raises doubts as to the Respondent’s bona fides. Inevitably, unless manifestly genuine, the suspicion will be that any use made of the Domain Name will be a sham.
If the Respondent had a particular reason for wishing to provide free information about Adecco, evidence of it could demonstrate a bona fide offering of a service or a legitimate non-commercial or fair use of the Domain Name.
However, despite a clear invitation to do so, the Respondent has come up with nothing, save that the site provides information on Adecco and the Respondent was the first to register the Domain Name. The Panel has no idea what could have prompted the Respondent to want to provide information about the word Adecco. The Respondent says that it is free advertising for the Complainant, but why should the Respondent wish to provide free advertising for the Complainant?
When one adds to that the fact that the Respondent provided to the Registrar false information as to its name and address and telephone number and then, despite being requested to do so, failed to give any explanation as to why it had done it, the Respondent cannot be surprised that the doubts as to its bona fides increased and hardened. For all the Panel knows "XXXXXX" and "Maria Garcia" could be pseudonyms for a cybersquatter.
Indeed, in the absence of any assistance in the matter from the Respondent, the Panel finds that the overwhelming probability is that the webpage is a smokescreen intended to provide some sort of justification for registration of the Domain Name and to obscure the fact that the Domain Name was registered for some other purpose, probably with a view to selling it to the Complainant at a profit.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
For the same reasons the Panel finds that on the balance of probabilities the Respondent registered the Domain Name in bad faith and is using it in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(i) of the Policy. If that finding is misconceived, the Respondent, whoever it may be, has only itself to blame.
In light of the foregoing findings namely that the Domain Name is identical to a trademark 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 was registered in bad faith and is being used in bad faith the Panel directs that the Domain Name <adecco.info> be transferred to the Complainant.
Dated: April 11, 2002