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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Infodev Electronic Designers International, Inc. v. Infodev
Case No. D2002-0565
1. The Parties
The Complainant is Infodev Electronic Designers International Inc., a Canadian corporation, having its principal office located at P.O. Box 1222 HV, Quebec, Qc. G1R 5A7, Canada.
The Respondent is Infodev, a Belgian corporation, having its principal office located at 109 avenue H. Jaspar, 1060 Brussels, Belgium.
2. The Domain Name and Registrar
The disputed domain name is <infodev.com>.
The registrar of the disputed domain names is Network Solutions Inc., having a mailing address of 487 E. Middlefield Road, Mountain View, California 94043, United States of America.
3. Procedural History
A Complaint made pursuant to the Uniform Domain Name Dispute Resolution Policy (the "Policy") was submitted to the WIPO Arbitration and Mediation Center (the "Center") on June 18, 2002, by email and on July 24, 2002, by hardcopy.
On June 20, 2002, the acknowledgement of receipt of the Complaint was sent.
On June 20, 2002, the Center made an initial request for registrar verification (Network Solutions Inc.).
On June 20, the Complainant made a request for extension, which was granted by the Center on July 1, 2002.
An amended Complaint made pursuant to the Uniform Domain Name Dispute Resolution Policy (the "Policy") was submitted to the Center on July 17, 2002, by email and on July 12, 2002, by hardcopy.
On July 18, 2002, all formal requirements for the establishment of the complaint were checked by WIPO and found to be in compliance with the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Domain Name Dispute Resolution Policy (the "Supplemental Rules"). The Panel accepts the WIPO checklist as evidence of proper compliance with the Policy, Rules, and Supplemental Rules.
On July 18, 2002, WIPO transmitted Notification of the Complaint and Commencement of the Proceedings to Respondent.
On August 9, 2002, WIPO transmitted Notification of Respondent's Default to the Respondent.
On August 19, 2002, the notification of an appointment of the sole panelist to both parties took place. The administrative Panel, consisting of a single member, Mrs. Isabelle Leroux was appointed. Mrs. Leroux has filed a Statement of Acceptance and Declaration of Impartiality and Independence.
As the language of the domain name registration agreement is the English language and as the Complainant has filed its complaint in English, the proceeding will be conducted in English, pursuant to paragraph 11(a) of the Rules.
The decision is issued within the time limit fixed by September 2, 2002.
4. Factual Background
The Complainant owns no relevant registered trade or service mark. Respondent registered the domain name <infodev.com> on August 20, 1996. Respondent does not currently operate any web site at <infodev.com>.
5. Parties’ Contentions
The Complainant states:
"When Complainant initially attempted to create a web site, Complainant found that Respondent had acquired the domain "infodev.com."
"Complainant entered into dialog with Respondent to attempt to obtain a transfer of the registration to Complainant. Discussions ended when Respondent requested around USD 5000. Complainant then obtained Infodev.ca to be on the web."
"A few years later Complainant attempted again to obtain transfer of the registration. This time the amount requested was around USD 50 000."
"Respondent has never once used the domain since its registration nearly 6 years ago."
"Respondent does not do business under the name Infodev."
"Complainant is an international company, selling electronic systems in North America, South America, Europe, and Asia. As such, Respondent's name is known worldwide and Respondent's customers and prospects have expressed surprise that Respondent could not be found under their first natural attempt of using www.infodev.com."
"In the last 6 years, international law and practice has established precedents for being able to request transfer of domain name registrations from registrants who are "sitting" on a name."
The Respondent did not file any Response to the Complaint and was notified of his default on July 17, 2002, without any later reaction.
6. Discussion and Findings
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 seems applicable".
Paragraph 4(a) of the Policy states that, for a complaint to be granted, the Complainant must prove each of the following:
(i) that the domain name registered by the Respondent is identical or confusingly similar to the trade marks or service marks in which the Complainant has rights; and,
(ii) that the Respondent has no rights or no legitimate interests in respect of the domain name; and,
(iii) that the domain name has been registered and used in bad faith.
The business name of the Complainant "INFODEV" is identical to the domain name <infodev.com>, registered by the Respondent on August 20, 1996 (six years ago).
However, the fundamental issue for the Complainant in this administrative proceeding lies in establishing that the Complainant has any rights in the sign "INFODEV".
While the Complainant appears to have built up a reasonably successful business in several countries and regions all over the world (Brazil, the United Kingdom, Belgium, United Arab Emirates, Poland, the USA, Mexico, Saudi Arabia, France, Australia and Hong Kong), there is no evidence before that the Complainant owns any relevant registered trade or service mark "INFODEV".
Furthermore, the consideration of the Panel is whether the Complainant has sufficiently alleged the existence of common law trademark rights in its Complaint. The Complainant alleges that it "is an international company, selling electronic systems in North America, South America, Europe, and Asia. As such, Complainant’s name is known worldwide and Complainant's customers and prospects have expressed surprise that Complainant could not be found under their first natural attempt of using "www.infodev.com". From this allegation and the documents attached to the Complaint, the Panel does not understand that Complainant asserted common law trademark rights in its name.
The Panel further decides that registration of the name "INFODEV" as a registered trademark or service mark is necessary and that this name has not sufficient secondary association with Complainant that common law trademark rights do exist.
The Panel finds that the Complainant has not met the first condition.
In these circumstances, it is not necessary for the Panel to make any findings in relation to elements (ii) and (iii) of paragraph 4(a) of the Policy, even though the Panel considers that the domain name <infodev.com> is undoubtedly confusingly identical to the name "INFODEV" and the Respondent has not filed any Response to the Complaint and then has not alleged any facts or elements to justify prior rights or legitimate interests in the said domain name. Moreover, the Complainant has in this Panel’s view failed to establish that the Respondent registered and used the domain name <infodev.com> in bad faith, pursuant to paragraphs 4(b) of the Policy.
The Panel must dismiss this case because of the Complainant’s inability to establish that it has the necessary "rights" on any trademark "INFODEV", but only proves the existence of a (non registered) name under which the Complainant does business since 1993.
As the Complainant has not proven that it owns any relevant registered trade or service mark, the Panel dismisses the Complaint.
Dated: August 28, 2002