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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Bata Brands S.а.r.l v. Charles Power

Case No. D2006-0191

 

1. The Parties

The Complainant is Bata Brands S.а.r.l of succursale de Lausanne, Lausanne, Switzerland (the “Complainant”).

The Respondent is Charles Power, Woodinville, Washington, United States of America (the “Respondent”).

 

2. The Domain Name and Registrar

The disputed domain name <bataintergroup.com> (the “Domain Name”) is registered with Network Solutions, LLC (the “Registrar”).

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 13, 2006, and the hardcopy was recived by the Center on February 23, 2006.

On February 15, 2006, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. On February 16, 2006, the Registrar transmitted by e-mail 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.

On February 28, 2006, the Center notified the Respondent that the Complaint had been received and requested a Response.

On March 21, 2006, as no Response had been received the Center notified the Respondent of his default.

On March 31, 2006, the Center appointed James Bridgeman as sole Panelist. The Panel finds that it was properly constituted. The Panelist 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 holds an extensive portfolio of trademarks registered for footware products in numerous jurisdictions throughout the world. The Complainant owns more than 1,000 registered trademarks incorporating the word BATA in various forms and in multiple classes throughout the world including:-

USA registered trademark BATA, registration number 0902644, filed on December 11, 1969, and registered in international class 25 for “shoes [slippers, sneakers] overshoes, boots and rubbers [and hosiery}”.

The Complainant carries on business as the licensor of its BATA trade marks to a group of companies that manufacture, distribute and retail footware products. Members of the group of companies operate approximately 4,600 retail stores in over 50 countries, 40 production facilities in 26 countries, and employ over 40,000 people worldwide.

As no Response has been filed the information the only information available to the Panel relating to the Respondent comes from the WHOIS database and the submissions of the Complainant set out below.

 

5. Parties’ Contentions

A. Complainant

The Complainant submits that the Domain Name is identical to or confusingly similar to the BATA trademark or servicemark in which the Complainant has rights. The Complainant submits that it is the owner of the internationally well known trademark BATA. Since 1894 the BATA trademark has been associated with the manufacture, distribution and retail sale of footware and footware related products. The Complainant refers to its substantial portfolio of registered trademarks as evidence of its rights in the BATA mark.

The Complainant submits that the Respondent has no rights or legitimate interest in the Domain Name. The BATA trademarks are the property of the Complainant and while the Complainant has numerous licensees throughout the world, the Complainant has never authorised or licensed the Respondent to use the BATA trademark in any manner.

The Complainant submits that the Domain Name was registered and is being used in bad faith. The Respondent has no rights to use the name or trademark BATA as part of the Domain Name.

The Respondent is not in the footware business. The Respondent has posted the following title on the homepage of the website that he has established at the <bataintergroup.com> address: “<bataintergroup.com> Passion for Shoes”. The Complainant submits that such title is mere camouflage for the Respondent’s true business which is earning linkage fees through referrals to other websites offering dating services, chat lines, weight loss and pharmaceutical products.

The Complainant submits that the Respondent has attempted to create “substance” for its <bataintergroup.com> website by creating footware related content consisting of what appears to be photographs of shoes and footware business editorial commentary and news. On closer examination however, it is apparent that the content is mere window-dressing. Much, if not all, of the content is either not related to the footware businessor is so old as to be irrelevant. Furthermore, the Complainant submits that virtually all of the photographs and articles on the Respondent’s website have been copied from other publications and or websites without permission from and/or credit given to the true authors or copyright holders. The Complainant has referred to specific articles on the Respondent’s website about which these allegations are made.

The Complainant submits that the Respondent has chosen the title “<bataintergroup.com> Passion for Shoes” for his website despite the fact that he is not in the footware business. The Complainant submits that the title “<bataintergroup.com> Passion for Shoes” was deliberately chosen for the website and that the contents of the website were deliberately crafted by the Respondent to deceive persons into inferring an association between the Respondent and the footware business of the Complainant and its international group of licensees. The Complainant submits that there is no association between the Respondent and the Complainant either in law or in fact and the inference that such an association exists is disruptive to the business of the Complainant and its licensees.

The Complainant submits that the Respondent is actually in the business of cybersquatting or at the very least, he is a stockpiler of domain names, creating Internet traffic to linked websites unrelated to the footware business or by “snapping” other names that might generate Internet traffic or income.

The Complainant has submitted three reverse WHOIS reports conducted by a firm of researchers using Identity Tracker Software:-

The first search report shows the results of a search for “domain names containing registrant data which includes the same name as the Respondent namely, ‘Charles’ or ‘Power’”. The search disclosed 77 domain names registered by the Respondent. In some cases, the search found that the name of the registrant was left blank or the word “none” had been entered in the first data line of the registrant information. A further manual WHOIS search determined that in each case the Respondent’s name (located at the same address as the Respondent) appeared in subsequent lines of the registrant information or as the administrative or technical contact.

The second search report shows the results of a search for domain names containing the same address as the Respondent. The search uncovered 14 domain names which have the same address, namely “p.o. box 2789, Woodinville, Washington”. It was noted that in many of these registrations, the Respondent was not listed as the registrant but instead the domain name was registered in the fictional name “Domain Guru”. In one case the domain name was registered in the name of a person who is believed to be an associate of the Respondent.

The third search report shows the results of the search for Internet domain names containing the same e-mail address as the administrative contact and the technical contact of the Respondent viz. domainguru@starband.net. The search disclosed 18 domain names in which “Domain Guru” appeared as the registrant of the domain name and/or contained the same e-mail address as the Respondent.

The Complainant submits that by using the Domain Name <bataintergroup.com> the Respondent has intentionally attempted to attract, for potential commercial gain, Internet users to his website, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of his website by or with the Complainant.

B. Respondent

The Respondent has not filed any Response.

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the Complainant must 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 the 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

The Complainant has established its rights in the BATA trademark through its substantial international portfolio of registered trademarks incorporating the word BATA. It has also submitted that it exercises its rights by licensing these trademarks to an international group of companies engaged in the manufacure, distribution and retail of footware and footware products throughout the world.

As the Respondent is located in the USA, of particular significance for these Administrative Proceedings is the Complainants rights in the USA registered trade mark BATA, registration number 0902644, details of which are set out above.

While the Domain Name <bataintergroup.com> is not identical to the Complainant’s BATA trademark, the dominant element in the Domain Name is the word “bata”. The other elements in the Domain Name are descriptive elements “inter” – often used as an abbreviation for the word “international”- and the word “group”.

The Complainant has satisfied this Administrative Panel that the Domain Name is confusingly similar to the BATA trademark.

In reaching this decision, the Administrative Panel is fortified by the fact that the Respondent has clearly sought to identify the content of his web site with the Complainants goodwill in its BATA mark.

It follows that the Complainant has satisfied the second element of the test in paragraph 4(a) of the Policy.

B. Rights or Legitimate Interest

The Complainant has established a prima facie case that the Respondent has no rights or legitimate interest in the Domain Name. The BATA trademark is distinctive and the Respondent is obviously aware of the Complainant’s trademark and goodwill in the footware industry. While the Complainant has numerous licensees throughout the world the Respondent is not one of them. The Complainant has stated that it has never authorised or licensed the Respondent to use the BATA trademark in any manner.

In the absence of any explanation from the Respondent and based on the case file, the Complainant has satisfied the second element of the test in paragraph 4(a) of the Policy also.

C. Registered and Used in Bad Faith

In relation to the matter of bad faith, the Complainant has made a number of allegations that may be true but have not been supported by any evidence. In particular the Complainant has submitted that the Respondent’s web site contains content that has been posted “without permission from and/or credit given to the true author or copyright holder”. These are very serious allegations and have not been supported by any evidence.

The mere fact that the Respondent and his associate appears to hold a stockpile of Internet domain name registrations is not in itself evidence that the Respondent is engaged in cybersquatting as alleged by the Complainant.

The Complainant has however established that while the Respondent has no real interest in the footware business:

he has registered the Domain Name that is confusingly similar to the Complainant’s BATA trade mark; and

he has established a web site at that address that purports to provide information about footware but the content of the web site does not appear to be a genuine attempt to provide such information.

On the balance of probabilities the content of the Respondent’s web site is mere camouflage and the Respondent’s real interest is earning linkage fees through referrals to other websites offering dating services, chat lines, weight loss and pharmaceutical products as alleged by the Complainant.

The Complainant has made out a compelling case that by using the Domain Name, the Respondent has intentionally attempted to attract, for potential commercial gain, Internet users to his website, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of his website by or with the Complainant.

It follows that the Complainant has also satisfied the third and final element of the test in paragraph 4(a) of the Policy and is entitled to succeed in its application.

 

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 name <bataintergroup.com> be transferred to the Complainant.

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James Bridgeman
Sole Panelist

Dated: April 12, 2006