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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Veridis sa v. SafeMail Inc.
Case No. D2003-0009
1. The Parties
The Complainant is Veridis sa, Rue Jourdan, 151, B-1060 Brussels, Belgium, of Belgium, represented by Olivier Merenne of Belgium.
The Respondent is SafeMail Inc., 3615 Jackson Oaks Ct, Morgan Hill, CA 95037, United States of America, of United States of America.
2. The Domain Name and Registrar
The disputed domain name <safemail.com> is registered with Network Solutions, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 6, 2003. On January 7, 2003, the Center transmitted by email to Network Solutions, Inc. Registrar a request for registrar verification in connection with the domain name at issue. On January 13, 2003, Network Solutions, Inc. Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 14, 2003. The Center verified that the Complaint together with the amendment to the Complaint 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 the proceedings commenced on January 16, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was February 5, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 6, 2003.
The Center appointed Peter G. Nitter as the sole panelist in this matter on February 12, 2003. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On February 19, 2003, the panelist sent a procedural order requesting further evidence of Respondents’ registration and use of the contested domain name in bad faith from Complainant. On March 11, 2003, the Complainant submitted an answer to the panelists procedural order.
4. Factual Background
After considering the Complainant’s assertions, supported by the documents enclosed as annexes to the complaint, and undisputed by Respondent because of its default, the Administrative Panel finds the following:
Complainant is the owner of the trademark SAFEMAIL, which has been in use since 1994 and registered in the United States as a trademark in 1996. The trademark is also registered in the European Union.
The respondent has registered the domain name <safemail.com>.
5. Parties’ Contentions
The Complainant asserts that:
The domain name at issue is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
Complainant has registered and is using SAFEMAIL as a trademark. This trademark is identical to the domain name at issue.
The Respondent has no legitimate interests in the domain name at issue.
Respondent has moved without leaving a forwarding address, and his business license has been closed. Hence, Respondent’s company Safemail Inc. does not exist anymore, and the contested domain name is no more in use.
The domain name is registered and is being used in bad faith.
The domain name at issue was registered on October 9, 2002, which is much later than Complainant’s initial use and registration of its trademark SAFEMAIL.
The Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the complainant’s mark.
Despite the fact that Complainant has attempted to recover the name, Respondent continued using the domain name at issue for a similar service to that of the Complainant.
Complainant has attempted to contact Respondent by regular courier and email but all attempts were returned to the Complainant with mention "no valid address".
Complainant fears that Respondent will make profit by using the domain name identical to its trademark, or that this will prevent Complainant in growing its revenues.
The Respondent did not make any response to the Complainant’s contentions. Consequently the Panel’s decision will be based solely on the evidence or lack thereof as submitted by the Complainant.
6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy the Complainant has the burden, on the balance of probabilities, to submit evidence in order to convince the Panel of three elements if it wishes to have the Domain Name transferred. It is incumbent upon the Complainant to cumulatively 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 interests in respect of such domain name; and
(iii) the domain name has been registered in bad faith and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant holds trademark registrations for SAFEMAIL in the US and EU.
As the addition of indicator of top level domain is without significance to the assessment of identity between a trade mark and a domain name the panel finds that the domain name at issue is identical to the Complainant’s trade mark SAFEMAIL.
B. Rights or Legitimate Interests in the domain name
Complainant asserts that the Respondent is not making a legitimate use of the disputed domain name, as the Respondent does not exist anymore as a registered company. Complainant puts forward no other evidence or other contentions with regard to Respondent’s illegitimacy.
On the other hand, the fact that Respondent’s company name is identical to the domain name at issue is a possible indication that Respondent had a legitimate interest in the domain name et issue at the time of registration or later. It is however unknown to the panel whether Respondent knew about, or at what time Respondent became aware of, Complainant’s trademark rights. It is furthermore unclear who has currently the right to the domain name at issue after Respondent company has been liquidated.
The Panel does however not find it necessary to go into a discussion of these matters, as a result of its conclusion on the issue of registration and use in bad faith below.
C. Registered and Used in Bad Faith
The fact that the domain name at issue belongs to an entity that does not exist anymore does not, in the Panel’s opinion, demonstrate that the domain name was registered in bad faith.
Complainant points at the fact that the domain name at issue was registered much later than Complainant’s trademark. Complainant has however not, despite the Panel’s request for additional evidence through a procedural order, presented any documentation or other evidence to show that the domain name at issue was acquired, or later used in bad faith.
Complainant has not produced any evidence as to the awareness of the its trade mark in the US, where Respondent had its business. The mark itself is in the Panel’s opinion of a descriptive character, and not very distinctive. Complainant has neither presented any evidence regarding the kind of services or products offered by Respondent at the website corresponding to the domain name at issue.
Under these circumstances the Panel finds that Complainant has not fulfilled its burden of proving that the domain name has been registered by Respondent in bad faith.
For the reasons mentioned above, the Complaint is denied.
Peter G. Nitter
Dated: April 2, 2003