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Eurocopter v. Netvision Ltd.
Case No. D2005-1361
1. The Parties
The Complainant is Eurocopter, Marignane Cedex, France, represented by Grьnig & Binimelis Asociados, Baleares, Spain.
The Respondent is Netvision Ltd., Cheltenham, Gloucestershire, United Kingdom
of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <helisim.com> is registered with Tucows.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 30, 2005, by email; a hard copy of which was received on January 5, 2006. On January 3, 2006, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On January 4, 2006, Tucows 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 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 January 18, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 7, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 15, 2006.
The Center appointed Christophe Imhoos as the sole
panelist in this matter on March 8, 2006. 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
The Complainant manufactures helicopters worldwide and is engaged in the business of helicopter flight simulation.
In joint venture with two other companies, namely Thales Training & Simulation and Dйfense Conseil International, the Complainant set up a new company incorporated under the name of “Helisim” on February 5, 1999, to develop activities in helicopter flight simulation and training services (see Annex 3 to the Complaint).
The HELISIM business activities were inaugurated and announced by Eurocopter on February 21, 2002; at the same time Eurocopter applied for the HELISIM trademark in the European Union as well as in the United States for helicopters and helicopter flights simulation. Trademark registrations were issued as follows (see Annexes 3 and 7 to the Complaint):
- Community Trademark HELISIM, Nє 2440329 in classes 09, 12, 38 and 41 filed on November 6, 2001, and registered in the 25 European Union countries including France, as well as the United Kingdom, where the Respondent has its place of business.
- French Trademark HELISIM, Nє 99790623 in classes 09, 12, 41 and 42 registered on May 6, 1999.
- United States Trademark Application HELISIM, Nє 76404281 in classes 09, 12 and 41 filed on May 6, 2002.
The Respondent registered the domain name <helisim.com>
on June 18, 2002 (Annex 1 to the Complaint).
5. Parties’ Contentions
The Complainant’s arguments are the following.
(i) The domain name is identical or confusingly similar to a trademark in which it has rights.
The Complainant’s trademarks were registered prior to the registration of the domain name <helisim.com> which is identical to trademarks or service marks in which the Complainant has rights. In addition, no HELISIM trademarks have been found either in the United Kingdom or at the OHIM in the name of the Respondent.
(ii) The Respondent has no rights or legitimate interests in respect of the domain name.
The Respondent has no legal connection to the Complainant and has no authorization to use any of the Complainant’s trademarks or to apply any domain name incorporating the cited trademark; it is also not commonly known by the name “Helisim” or the domain name <helisim.com>.
Furthermore, the Complainant has not granted any license or otherwise to the Respondent, let alone make use of Complainant’s trademarks and/or trade name.
As a matter of fact, the Respondent holds a domain name which has not resolved to a website or other online presence since 2002 (Annex 8 to the Complaint).
The Complainant is therefore prevented from using the domain name by which its organization is commonly known or referred to worldwide in spite of its numerous attempts to contact the Respondent and to settle the case without official proceedings (Annex 10 to the Complaint).
(iii) The domain name was registered and is being used in bad faith.
The Respondent registered the domain name while he did not possess any right in the name “Helisim” and while the prior rights owned by the Complainant should have dissuaded him. The Respondent, who is a professional in the Internet business, should have verified that its registration did not violate prior rights; it should have also been aware that the first component of the word “helisim” is conceptually evocative of the helicopter industry and has no direct or indirect connection with the basic field of its activities which are dedicated to the Internet and communication purposes.
As to bad faith use, the exchange of correspondence between the Parties evidences that the Respondent refused to voluntarily transfer the disputed domain name; when approached by the Complainant, the Respondent offered to sell the disputed domain name for USD8,000 and continued to hold it without making any legitimate use (Annex 10 to the Complaint).
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth three requirements, which have to be met for the Administrative Panel to order the transfer of the disputed domain name to the Complainant. Those requirements are that:
(i) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) Respondent’s domain name has been registered and is being used in bad faith.
The Complainant must prove in the administrative proceeding that each of the aforesaid three elements is present so as to warrant relief, according to paragraph 4(a) of the Policy.
The Panel has to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable, pursuant to paragraph 15(a) of said Rules.
In accordance with paragraph 14(b) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint.
A. Identical or Confusingly Similar
The Complainant has established its rights in the trademark HELISIM with various registrations worldwide for such a name including in the United Kingdom (see Annex 7 to the Complaint).
The Complainant has also submitted conclusive evidence that its trademark HELISIM is confusingly similar to the domain name <helisim.com>.
For the above reasons, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademarks.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances, which if found by the Panel to be proved based on its evaluation of all evidence submitted, shall demonstrate rights to or legitimate interests in the domain name in dispute. Those circumstances are described as follows:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent, in not responding to the Complaint, has failed to invoke any
of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of
the Policy, any rights to and/or legitimate interests in the domain name in
dispute. This entitles the Panel to draw any such inferences from such default
as it considers appropriate pursuant to paragraph 14(b) of the Rules (See e.g.
Talk City, Inc. v. Michael Robertson, WIPO
Case No. D2000-0009; or Isabelle Adjani v. Second Orbit Communications,
Inc., WIPO Case No. D2000-0867).
As already mentioned, the Complainant has established that the HELISIM trademark has been known worldwide for a significant period of time (see Annex 7 to the Complaint).
As underlined in its Complaint and absent evidence to the contrary, the Complainant has not granted any license or otherwise permitting the Respondent to use such trademark or to apply for any domain name incorporating the said trademark; moreover, the Respondent is not known by the domain name at issue and its business activities are not in the same field of activities as those of the Complainant.
Under these circumstances and absent evidence to the contrary, the Panel is unable to find any evidence that would tend to establish that the Respondent has rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances that evidence registration and use of a domain name in bad faith. Any one of the following behaviors is sufficient to support a finding of bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(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; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.
As already mentioned, the Respondent did not file any response to the Complaint, failing thereby to invoke any circumstance which could demonstrate its good faith in the registration or use of the domain name at issue.
Nevertheless, the Panel still has the responsibility of determining which of
the Complainant’s assertions are established as facts, and whether the
conclusions asserted by the Complainant can be drawn from the established facts
(See Harvey Norman Retailing Pty Ltd v. Oxford-University, WIPO
Case No. D2000-0944).
The Panel firstly notes that the disputed domain name was registered shortly before the announcement of the new HELISIM field of business activities (see Annexes 1 and 3 to the Complaint).
Moreover, it flows from the evidence available in the file that the Respondent:
- has maintained as ‘inactive’ the website to which the disputed domain name resolves (Annex 8 to the Complaint) although it had announced that it was under construction as early as June 2004 (Annex 5 to the Complaint);
- had initially offered USD8,000 “as a minimum” as sales price for the domain name in dispute (see Annex 10 the Complaint), then decreased it to USD2,600 whilst the Complainant was ready to pay up to USD1,500 (see emails of April 4, 2005: Annex 10 to the Complaint).
It must be noted that the Complainant did not file the complaint announced
in its email of April 22, 2005 (Annex 10 to the Complaint) before late December 2005.
Regardless of this delay, and based on the record and in the absence of a rebuttal
by the Respondent, the Panel considers that the Respondent has behaved according
to the circumstances described under paragraph 4(b)(i) of the Policy when it
sought payment for sums clearly in excess of its out-of-pocket expenses for
the domain name in question.
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 <helisim.com> be transferred to the Complainant.
Date: March 21, 2006