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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Jones Holding Limited v. Vitty Inc.
Case No. DBIZ2002-00265
1. The Parties
The Complainant is Jones Holding Ltd., duly registered and incorporated under the laws of St. Kitts & Nevis and having its principal place of business at Morning Star Holdings Ltd., Charleston, St. Kitts & Nevis, 12.
The Respondent is Vitty inc., 12F-8, No.237, 2nd Section, Fushing South Rd., Taipei 08807, Taiwan, Province of China according to WHOIS database.
2. The Domain Name and Registrar
The disputed domain name is <animalsex.biz>.
The registrar of the disputed domain name is 007Names, Inc., 672 Route 202-206 N,
Bridgewater, NJ 08807, United States of America.
3. Procedural History
(a) Complainant initiated this proceeding under the Start-Up Trademark Opposition Policy for .biz ("STOP") by filing a complaint received via e-mail by the WIPO Arbitration and Mediation Center ("the Center") on June 10, 2002, and received in hardcopy on June 14, 2002. The Center verified that the complaint complied with the Rules for Start-Up Trademark Opposition Policy ("STOP Rules") and the WIPO Supplemental Rules for Start-up Trademark Opposition Policy for .biz ("WIPO Supplemental STOP Rules"). Complainant paid the requisite filing fees.
(b) On June 17, 2002, the Center transmitted notification of the complaint and commencement of the proceeding to Respondent by courier and e-mail.
(c) After the deadline for sending a Response had passed, the Center sent Notification of Respondent Default on July 9, 2002.
(d) Following receipt of an executed Statement of Acceptance and Declaration of Impartiality and Independence from this Panelist, on July 12, 2002, the Center appointed the undersigned sole Panelist as the Administrative Panel in this matter and notified the parties of the appointment. The Center advised the Panel that absent exceptional circumstances it would be required to forward its decision to the Center by July 26, 2002.
(e) The Panel has received no additional requests or transmittals from the parties, and has not found it necessary to request additional information. These proceedings have been conducted in English.
4. Factual Background
Complainant is a Nevis corporation that owns domain names, including bestiality.com and animalsex.com, that it licenses to be operated as adult web sites. It registered the Domain Name <bestiality.com> in 1997 and Animalsex.com in 1996, having acquired the latter name in April 2001. The Complainant leased the domain name <animalsex.com> from March 2001. It applied for trademark registration for ANIMALSEX in Denmark on July 5, 2001, for a range of products and services including photographic, apparatus for recording, education, entertainment, sporting and cultural activities.
Respondent is listed as the registrant of the disputed Domain Name.
5. Parties’ Contentions
5.1 The Complainant asserts that its web-sites "offer only fully licensed, legally produced material and have been operated for several years, gaining a reputation for providing quality adult entertainment under these URLS. The URLS have thus become associated with the product provided by these sites."
5.2 What follows is verbatim recitation of the Complainant’s arguments and evidence in this proceeding:
"The contested domain name is identical to the Complainants world wide Domain name registration animalsex.com and to the Complainants trademark application for the registration of animalsex.
The Complainant has made a preliminary search which indicated that the Respondent has no legitimate interest in the contested domain name. It should also be noted that the Respondent did not file an IP Claim, which is an indication that they do not have any rights to the name animalsex.
Further, to best of Complainants knowledge the Respondent does not carry out any activities under the said name.
The Respondent has chosen to register the domain name in spite of Complainants 4 registered IP Claims. Respondent has been notified by Neulevel of this claim according to the regular Rules for the registration of.biz names. The registration has thus taken place with full knowledge of Complainants rights, which, given that Respondent has no legitimate interest as stated above, in itself is a clear proof of bad faith. Based on the above facts and arguments the prerequisites of STOP Policy para. 4(a), 4(b) and STOP Rules, para 3) is fulfilled in this case."
5.3 The Respondent did not file a Response, thus Complainant’s contentions are uncontested. In accordance with STOP Rule 5(e), the Panel will proceed to a decision based on the Complaint alone.
6. Discussion and Findings
Paragraph 4(a) of the STOP lists three circumstances which the Complainant has the burden of proving in order to succeed in this Administrative Proceeding:
(i) The Domain Name is identical to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered in bad faith or is being used in bad faith.
6.1 Identical to a trademark or service mark
Pursuant to the STOP, para. 4(a), only a Domain Name’s identity to trademarks and service marks are material. Thus, the Complainant’s assertions with regard to its Domain Name <bestiality.com> will not be taken into consideration. See Netdoktor AS v. Jens Nielsen, WIPO Case No. DBIZ2002-00109.
Under the UDRP it has been that there are no rights conferred by a trademark application under the Policy. See Aspen Grove, Inc. v. Aspen Grove, WIPO Case No. D2001-0798; Spencer Douglass MGA v. Absolute Bonding Corporation, WIPO Case No. D2001-0904. The same has been said for the STOP proceeding. See Netdoktor AS v. Jens Nielsen, WIPO Case No. DBIZ2002-00109; Rodale, Inc. v. Christianne Schelling, WIPO Case No. DBIZ2002-00130.
The Complainant has not pleaded, asserted, nor produced any evidence that its use of the Domain Name in question entitles it to the unregistered trademark rights, which it ought to do if it relies thereon. See Netdoktor AS v. Jens Nielsen, WIPO Case No. DBIZ2002-00109.
As a consequence of the above, this Panel finds that the Complainant has not proved the first element.
6.2 Respondent’s rights or legitimate interests
A Complainant does not identify what kind of "preliminary search" he made which indicated that the Respondent has no legitimate interest in the contested Domain Name. Further, the Complainant has not stated the basis of its asserted knowledge that the Respondent does not carry out any activities under the name in question. Nor has Complainant provided any evidence of when Respondent registered the Domain Name in issue.
In light of the foregoing, this Panel finds that the Complainant has not proved the second element.
6.3 Bad faith
As this Panel has found that the Complainant does not have the necessary rights upon which to base this claim, its assertion that the Respondent’s registration took place with full knowledge of the Complainant’s rights will not succeed, nor will the asserted lack of legitimate interest by the Respondent, in light of this Panel’s finding in regard to the second element, as above.
This Panel therefore finds that the Complainant has not proved the third element.
The Complainant having failed to prove the requirements of Paragraph 4(a)(i) to (iii), its claim is dismissed and under STOP Rule 15(e)(iii) subsequent challenges against the domain name under the STOP shall be permitted. In accordance with paragraph 4(l)(ii)(3) of the STOP, no such challenge may be brought by, or on behalf of, the Complainant.
Cecil O.D. Branson, Q.C.
Dated: July 16, 2002