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ADMINISTRATIVE PANEL DECISION

ANUNTIS, S.L. v. idealista.com

Case No. D2005-0632

1. The Parties

The Complainant is ANUNTIS, S.L., St. Cugat del Vallиs, Barcelona, Spain, represented by Cuatrecasas Abogados, Spain.

The Respondent is idealista.com, Pablo Alvarez Cascos, Madrid, Spain.

2. The Domain Names and Registrars

The disputed domain names <bivendum.com>, <vibendum.com> and <vivemdum.com> are registered with Network Solutions LLC, whereas the disputed domain name <vivendun.com> is registered with Nominalia Internet S.L.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 16, 2005. On June 17, 2005, the Center transmitted by email to Network Solutions, LLC and Nominalia Internet S.L. a request for registrar verification in connection with the domain names at issue. On June 17, 2005 and June 20, 2005, Network Solutions, LLC and Nominalia Internet S.L., respectively, transmitted by email to the Center their verification responses confirming that the Respondent is listed as the registrant and providing the 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 June 29, 2005. 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 July 1, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was July 21, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 22, 2005.

The Center appointed Paz Soler Masota as the Sole Panelist in this matter on August 3, 2005. 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.

Complainant has requested that English remains as the language for the proceeding, for three of the domain names under dispute were originally registered in English by the Respondent. The Respondent has not objected to this request. Although the Parties are both Spanish, the Panel has accepted to write the decision in English.

4. Factual Background

From the Complaint and the various Exhibits to it, the Panel has found the following:

(1) The Complainant is the legitimate owner of at least two Spanish marks “VIVENDUM.COM – A! Anuntis”, numbers M2511089 (16 Nice Nomenclator) and M2511090 (41 Nice Nomenclator).

(2) The Complainant has registered various domains (<vivendum.com> and <videndum.net>) which it has used in relation to websites dedicated to its real-state activity.

(3) The Panel has entered the websites operated under the disputed domain names on August 9 and 10, 2005, and confirmed the assertions provided by the Complainant, as to the current activities of the respective websites.

5. Parties’ Contentions

A. Complainant

The Complainant contends the following:

(1) That the domain names under dispute are confusingly similar to the trademarks “VIVENDUM.COM – A! Anuntis” owned by it, since: (i) their core content is the element “vivendum.com”, being the inclusion of the words “a! Anuntis” just a secondary reference within said trademarks; (ii) the element “vivendum” does not mean anything in Spanish; (iii) there is an “overall impression” that the disputed domain names clearly relate to the Complainant’s trademarks and portal, being the risk of confusion herein significant since the Respondent has linked the disputed domain names to a portal that competes with the Complainant’s trademarks and portals; and (iv) that the domain names under dispute include minor spelling differences as per the original wording of “vivendum.com”.

(2) That Respondent was, at the moment of registering the domains under dispute, perfectly aware and conscious of the existence of the trademarks of the Complainant, since <vivendum.com> has no generic meaning and that Respondent keeps on competing with the Complainant, thus evidencing that its election was not casual.

(3) That Complainant has never authorized the Respondent to use any of the marks above referred and thus, the Respondent has no legitimate interest in the disputed domain names.

(4) That Respondent has used the domain names in bad faith: (i) in respect of three of the domain names, by redirecting Internet users to websites owned and managed by the Respondent where it offers services which directly compete with those of the Complainant; and (ii) in respect of one of the domain names, by redirecting Internet users automatically to a website dedicated to pop music.

And consequently, Complainant requests that the domain names <bivendum.com>, <vibendum.com>, <vivemdum.com> and <vivendun.com> be transferred to it.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 4(a) of the Policy, Complainant should show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which it has rights, that the Respondent has no rights or legitimate interests in respect of the domain name and that the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The question under paragraph 4(a) of the Policy is whether Complainant has protectable rights in the trademarks to which it contends that the Respondent’s domain names are identical or confusingly similar.

The Complainant, noting that <vivendum.com> is a well-known website of the Complainant, contends that the domains names under dispute incorporate the core element of its trademarks “VIVENDUM.COM – A! Anuntis”, being this core element “vivendum”, which the Complainant writes in block letters, and the words “A! Anuntis” “just a secondary reference included in the said trademarks” (Complaint, page 13, par. 33). The Panel is not fully convinced by this concrete allegation of the Complainant. Indeed, the trademarks of the Complainant are composed by two sets of elements: “Vivendum.com” on the one side and “A! Anuntis”, being “Anuntis” the tradename under which the Complainant is recognized in the entrepreneurial traffic: Anuntis, S.L., and “vivendum.com” one of the portals through which the Complainant operates.

This being so, this Panel shall consider as a premise of discussion that “VIVENDUM.COM” is the more prominent part of the trademark which in turn should be compared with the Respondent’s domain names.

Two of the domain names reflect this prominent part of the mark with the simple addition of a misspelling (ie, <vivemdum.com> and <vivendun.com>), while the other two domain names (ie, <bivendum.com> and <vibendum.com>) are phonetically identical to the prominent part of the mark when it is considered that the letters ‘b’ and ‘v’ are pronounced in the same way in the Spanish language (see Pfizer Inc., A Delaware Corporation v. Phizer's Antiques and Robert Phizer, WIPO Case No. D2002-0410). Such evidence of ‘typosquatting’ indicates that there would be an initial confusion for any internet user who accesses the disputed domain names while attempting to access <vivendum.com>, one of the Complainant’s most successful websites. Accordingly, it appears that the domain names in question are confusingly similar to the mark.

Furthermore, at least for the Respondent, the domain names seemed fit to confuse internet users. As it will be discussed below, the Respondent has used at least three of the domain names to market goods and services similar to those marketed by the Complainant. This fact indicates that the Respondent had prior knowledge of the Complainant and the business of the Complainant. It therefore seems likely that the Respondent used this prior knowledge of the Complainant to register domain names which to normal internet users may come across as confusingly similar to the Complainant’s mark.

In light of all the above considerations, the Panel finds that the Complainant has met the second requirement of the Policy paragraph 4(a)(i).

B. Rights or Legitimate Interests

There is no evidence, for Respondent has not contested the Complaint, that it has any right or legitimate interest whatsoever in respect of the disputed domain names <bivendum.com>, <vibendum.com>, <vivemdum.com>, and <vivendun.com> which incorporate the element “vivendum” contained in the trademarks of the Complainant.

The Complainant, moreover, has alleged that it has not authorized the Respondent to use the term “vivendum”, nor to register the domain names <bivendum.com>, <vibendum.com>, <vivemdum.com>, and <vivendun.com>. Therefore, on this point, Complainant prevails.

Additionally, as shall be discussed below, Complainant has provided enough evidence to demonstrate that Respondent has used the mentioned domain names in bad faith.

The Panel therefore finds that Respondent has no rights or legitimate interests in the disputed domain names <bivendum.com>, <vibendum.com>, <vivemdum.com>, and <vivendun.com>, the requirement of the Policy paragraph 4(a)(ii) being thus satisfied.

C. Registered and Used in Bad Faith

The panel has carefully analyzed the information and documentation provided by Complainant, and has concluded that the Respondent has registered and used the disputed domain names in bad faith, in ways outlined in the Policy paragraph 4b(iv).

The Complainant has given enough evidence that the Respondent has been using the website operated under the domain names to offer similar services to those commercialized by the Complainant under its portal <vivendum.com>. Thus, the Panel concludes that the Respondent has registered and used the domain names under dispute in a way likely to create confusion in the minds of some internet users as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. Based on the case file, and in the absence of any response, the Panel infers that the Respondent has created deliberately that confusion with the intention of attracting Internet users to the Respondent’s website, and that he did so for commercial gain. This intention is further evidenced by the slight difference in spelling between the Complainant’s trademark/domain name and the domain names under dispute. Since there is no phonetic difference in Spanish between the latter and the former, it is clear that the Respondent has intentionally taken advantage of those consumers who may have committed a typographical error when trying to enter the portal “vivendum.com” of the Complainant.

The Panel therefore concludes that the disputed domain names were registered and used in bad faith.

7. Decision

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 names <bivendum.com>, <vibendum.com>, <vivemdum.com>, and <vivendun.com> be transferred to the Complainant.

Paz Soler Masota
Sole Panelist

Dated: August 11, 2005