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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Feria Muestrario Internacional de Valencia v. Mr. JP Bronston

Case No. D2002-1163

 

1. The Parties

The Complainant is Feria Muestrario Inernacional de Valencia, Spain represented by Mr. Vicente Belenguer Llaneras of Estudio Juridico Belenguer, Valencia, Spain.

The Respondent is Mr. JP Bronston of Hahei Beach, Whitianga, Coromande, New Zealand.

 

2. The Domain Name and Registrar

The disputed domain name is <cevisama.com>, and is registered with the registrar Capital Networks Pty dba TotalNic.net of Dickson, Australia.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 23, 2002. On January 18, 2003, the Center transmitted by email to the registrar, Capital Networks Pty dba TotalNic.net, a request for registrar verification in connection with the disputed domain name. On January 18 and 21, 2003, the registrar transmitted its email verification response to the Center confirming that the Respondent is the registrant and providing the contact details for the administrative, billing, and technical contact. Also on January 21, 2003, ICANN itself confirmed that the disputed domain name was subject to the Policy and the Rules.

In response to a notification by the Center that the Complaint was administratively deficient in that the Complainant had named the wrong registrar, the Complainant submitted an Amendment to Complaint with the correct registrar information on January 27, 2003.

The Center verified that the Complaint and Amendment satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and this proceeding began on January 28, 2003. In accordance with the Rules, paragraph 5(a), the due date for the response was set at February 17, 2003. The Respondent did not file a response and was notified of his default on February 19, 2003.

The Center appointed Dennis A. Foster as Panelist in this matter on February 26, 2003. The Panel finds that it was properly constituted. On February 25, 2003, the Panel already had submitted a Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

The Complainant submitted a Supplemental Filing to the Center on February 24, 2003. In accordance with Rule 12, having reviewed the Complaint, the Panel decided not to solicit any additional filing from the Complainant and did not consider the Complainant’s additional filing in reaching this Decision.

 

4. Factual Background

The Complainant is a company that stages international trade fairs in Valencia, Spain. The Complainant’s ceramics, glass, plumbing and machinery trade fair, the Cevisama, had its 20^th edition from February 26 to March 2, 2002, and the 21^st edition was held March 4-8, 2003. The fair’s featured products include ceramics, construction coverings, bathroom fittings, raw materials, enamels, glazes and machinery. The Complainant owns several trademark registrations in Spain for "Cevisama."

Aside from his location in New Zealand, little is known about the Respondent except that part of his business is registration of domain names transferred to him by Spanish entities.

 

5. Parties’ Contentions

A. Complainant

- The Respondent’s registration and use of the disputed domain name is interference and infringement of the rights of the Complainant’s trademark, registered in the Spanish Office of Patents and Trademarks.

- It should be noted that the Complainant has had the opportunity to verify directly that the address given for Mr. JP Bronston is false, by means of the stay in New Zealand of Mr. Jose Boira Soler, resident in Valencia, C/Ramon Asensio, no. 15, and two companions who can corroborate this information. They were able to verify that Whittianga is a small town in the Coromande area, and Hahei Beach is a residential area close to the town, where Mr. Bronston is absolutely unknown. Besides, no Mr. JP Bronston is listed in the telephone directory corresponding to Whittianga and Hahei.

- According to the text of the Spanish court judgement (Complaint Annex number 16), legal ground VI, it was proved during the trial in Spain that Mr. Monterde Molina (former owner of the disputed domain name and so-called transferor of the domain name to the Respondent), and the Respondent have not made any use of the disputed domain name, but its acquisition 48 hours after the notification of the Spanish court judgement reveals the illegal nature of this acquisition.

- The mentioned court decision reveals the bad faith of the Spanish transferor Mr. Monterde Molina and the New Zealand transferee Mr. JP Bronston, i.e., the disputed domain name <cevisama.com> was transferred to Mr. JP Bronston two days after Mr. Monterde Molina was notified of the Spanish court decision (dated April 24, 2002), ordering him to cease using the disputed domain name (Complaint Annex 16).

- Another reason that clarifies the bad faith in question arises from the inquiry about why a New Zealand resident wanted the corresponding domain name of a specialized and internationally recognized Spanish Fair. Undoubtedly, the answer to this must be to try to benefit by fraudulent means (ceding the domain names to rival fairs, for example) and, thus taking advantage of someone else’s effort.

- The Respondent’s disputed domain name registration clearly aims to prevent the Complainant from reflecting its mark in the corresponding domain name. This could disrupt the commercial activities of Feria Valencia in the event that the current owner cedes the domain name to rival fairs, for example. Mr. Monterde Molina, former owner of the disputed domain name, had tried, with a profit motive in mind, to contact possible users and even issued invoices.

- The bad faith of the transferor and the transferees is demonstrated in Annexes numbers 17 to 33 which show that a number of town names from the Comunidad Valenciana were registered by Mr. JP Bronston or by Lyre, another New Zealand company whose administrative contact, like the Respondent’s, is WEB 5000, S.L., a company owned by Mr. Monterde Molina and members of his family, i.e., the transferors to Mr. JP Bronston.

- The disputed domain name should be transferred to the Complainant.

B. Respondent

The Respondent is in default and thus did not file any contentions.

 

6. Discussion and Findings

In order for Complainant to prevail and have the disputed domain name <cevisama.com> transferred to it, Complainant must prove the following (the Policy, Paragraphs 4(a)(i-iii)):

- the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

- the Respondent has no rights or legitimate interests in respect of the domain name; and

- the domain name was registered and is being used in bad faith

A. Identical or Confusingly Similar

The Complainant has exhibited copies of its Spanish trademark registrations for the mark "Cevisama," no. 1.972.715 dated December 20, 1995, (Complaint Annex No. 11), for use with commercial fairs; and no. 2.071.558 dated July 7, 1997, (Complaint Annex No. 10), for communication services via radio, internet and telecommunications. The disputed domain name, <cevisama.com>, is identical to the Complainant’s trademark, for it is well-settled under the Policy that a top level indicator such as "com" is an operative term of the Internet and should not be considered when seeking to determine identity or confusing similarity (see on this point AT&T Corp. v. John Zuccarini d/b/a RaveClub Berlin, WIPO Case No. D2001-1503, April 3, 2002).

B. Rights or Legitimate Interests

The Complainant has stated that the Respondent has no right whatsoever to use the disputed domain name. The Respondent has not chosen to file a Response to explain to the Panel what rights or legitimate interests he might have. In reviewing the record, the Panel is unable to determine any type of right or interest the Respondent, in New Zealand as it were, might have in the disputed domain name which is composed of a Spanish acronym (ceramica, vidrio, saneamiento y maquinaria) for an exposition at the International Fair of Valencia. The Panel thus finds the Respondent has no legitimate rights or interests in the disputed domain name.

C. Registered and Used in Bad Faith

The Complainant contends a number of grounds for bad faith, one of which the Panel finds particularly convincing.

The Respondent, in New Zealand, apparently acquired the disputed domain name around end of April 2002, from the Spanish owner Mr. Manuel Monterde Molina who had surmised correctly he was going to lose a lawsuit brought by the Complainant to force Mr. Monterde to stop using the disputed domain name because it violated the Complainant’s trademark rights in the mark Cevisama. The Complainant also has shown (Complaint Annexes numbers 17-33) that the Respondent and its business associate in Spain, Mr. Monterde Molina, have registered the domain names corresponding to the marks of a number of other Spanish entities comparable to the Complainant (i.e., the International Fair of Valencia). This is a pattern of conduct. Therefore, the Panel finds the Respondent has violated the bad faith registration and use provisions of the Policy at 4(b)(ii): "you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct";

 

7. Decision

The Panel has found that the disputed domain name, <cevisama.com>, is identical to the Complainant’s registered Spanish trademark. The Respondent is in default and the Panel can find in the record no legitimate rights or interests for the Respondent. To conclude, the Panel has found the Respondent registered and is using the disputed domain name in bad faith because the Respondent registered it to prevent the Complainant from doing so, and the Respondent has registered a number of other domain names apparently with the same motive in mind.

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <cevisama.com>, be transferred from the Respondent, Mr. JP Bronston, to the Complainant, Feria Muestrario Internacional de Valencia.

 

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Dennis A. Foster
Sole Panelist

Dated: March 12, 2003