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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
VENTURUM GmbH v. Coventry Investments Ltd., DomainCollection Inc.
Case No. D2003-0405
1. The Parties
The Complainant is VENTURUM GmbH, Dresden, Germany, represented by Prof. Dr. Michael Schefczyk of Germany.
The Respondent is Coventry Investments Ltd., DomainCollection Inc., c/o DomainCollection Inc., Miami, Florida of United States of America.
2. The Domain Name and Registrar
The disputed domain name <venturum.com> is registered with iHoldings.com Inc. d/b/a DotRegistrar.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 26, 2003. On May 27, 2003, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue. On May 28, 2003, iHoldings.com Inc. d/b/a DotRegistrar.com 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. The Center verified that 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 June 10, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was June 30, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 2, 2003.
The Center appointed Peter G. Nitter as the sole panelist in this matter on July 14, 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.
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 Panel finds the following:
The Complainant has registered the service mark "VENTURUM" in Germany and the United States of America and filed an EC trademark application for "VENTURUM." Respondent has registered the domain name <venturum.com>. Complainant’s registration of service and trademarks were prior to Respondent’s registration of the contested domain name.
5. Parties’ Contentions
Except for the ".com" ending, the domain name at issue is identical to the service and trademark registered by the Complainant.
Respondent does not have any rights or legitimate interests in the domain name at issue. There has been no use of, or demonstrable preparations to use the domain name at issue in connection with a bona fide offering of goods and services on the part of Respondent. Respondent has not made a legitimate non-commercial or fair use of the contested domain name, as it has not been used in any manner since it was registered, other than as an item for sale. Neither is Respondent commonly known by the name venturum.
Respondent has registered and used the contested domain name in bad faith. The domain name at issue was registered primarily for the purpose of selling it. The domain name at issue is offered for sale at Respondent’s website, and selling domain names in excess of its own out of pocket expenses is most obviously a business pursued by Respondent. On April 5, 2003, Complainant sent a cease and desist letter to Respondent, but Respondent has not acted according to the instructions in the letter, or answered Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
For purposes of assessing the identity between domain names and service and trademarks, top-level domain extensions are to be ignored. The Panel thus finds that the domain name at issue is identical to the service and trademarks registered by Complainant.
B. Rights or Legitimate Interests
The Panel has considered Complainant’s allegation that the Respondent lacks any rights or legitimate interests in respect of the contested domain name. As a result of Respondent’s default, these allegations have not been contested.
Complainant asserts that Respondent does not have any rights or legitimate interests in the domain name at issue. It is generally difficult for Complainant to prove this assertion, while Paragraph 4(c) of the Policy at the same time gives Respondent ample opportunity to demonstrate any actual rights or legitimate interests he might have in the domain name.
Previous decisions under the UDRP (see e.g. Document Technologies, Inc.
v. International Electronic Communications Inc, WIPO
Case No. D2000-0270), has therefore found it sufficient for Complainant
to make a prima facie showing that Respondent has no rights or legitimate
interests in the domain name at issue.
Pursuant to Paragraph 10(a) of the Rules, the Panel considers itself competent
to visit the Internet independently in order to obtain additional information
in a default proceeding (see Cases No.: (InfoSpace.com, Inc. v. Hari Prakash,
WIPO Case No. D2000-0076 and
Cortefiel, S.A. v. Javier García Quinta, WIPO
case No. D2000-0141). On July 22, 2003, the Panel visited
the "www.domaincollection.com" website of the Respondent in order
to investigate whether there could be found any evidence as to Respondents rights
or legitimate interests in the contested domain name. No such evidence of any
rights or legitimate interests were however found when the website was visited
by the Panel.
There are no indications whatsoever that Complainant has granted Respondent any rights to use its service or trademarks, nor are there any indications that the Respondent is using the contested domain name in connection with a bona fide offering of goods and services, or is making a legitimate, non-commercial and fair use of it. Under these circumstances, the Panel is thus satisfied that Complainant has established a prima facie case that the Respondent has no rights or legitimate interest in the contested domain name.
C. Registered and Used in Bad Faith
Complainant’s allegations with regard to the Respondent’s registration and use of the domain name in bad faith has been considered by the Panel. Respondent has, as a result of his default, not invoked any circumstances which could invalidate Complainant’s allegations and evidence with regard to the Respondent’s registration and use of the contested domain name in bad faith.
It is evident that Respondent is in the business of selling domain names through its web page "www.domaincollection.com," and that in order to profit from such business, Respondent is offering the domain names for valuable consideration in excess his out-of-pocket costs directly related to the domain name. The contested domain name is one of the many domain names offered for sale through Respondent’s web page. By offering the contested domain name through a publicly accessible website, Respondent is offering it for sale to Complainant, any of Complainant’s competitors, and others.
The above circumstances fall within the exemplification of registration and use of a domain name in bad faith pursuant to paragraph 4(b)(i) of the Policy.
On its web page "www.domaincollection.com," Respondent states the following:
"Our Policy: It is the policy of domaincollection.com to respect the legal rights of others. We regret that the volume of domains available through Domaincollection makes it infeasible for us to investigate whether any particular domain offered for sale resembles a registered trademark or service mark. We advise buyers to conduct such investigations as may be appropriate in their circumstances."
Firstly, the Panel wishes to make clear that Respondent cannot renounce its responsibilities under the Policy paragraph 2 through such a disclaimer.
Secondly, the Panel has, when visiting Respondent’s "www.domaincollection.com" web page, investigated into the domain names that are offered for sale through the site. Among the domain names offered for sale, the Panel found, inter alia, the domain names <vaio-sony.com> and <toysrusa.com>. These are domain names that are identical, or confusingly similar to famous trademarks, and the Panel finds it highly unlikely that Respondent would have registered said domain names without having knowledge of the respective famous trademarks. Respondent is thus not acting in accordance with the policy stated on his web page "www.domaincollection.com", but has rather engaged in a pattern of cybersquatting.
In light of the above mentioned circumstances, the Panel finds that the Respondent has registered and used the domain name at issue in bad faith.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <venturum.com> be transferred to the Complainant.
Peter G. Nitter
Dated: July 21, 2003