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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Caixa d’Estalvis i Pensions de Barcelona (“La Caixa”) v. Young N

Case No. D2006-0406

 

1. The Parties

The Complainant is Caixa d’Estalvis i Pensions de Barcelona (“La Caixa”), Barcelona, Spain.

The Respondent is Young N, Woobang APT, Pohang GB, Republic of Korea.

 

2. The Domain Name and Registrar

The disputed domain name <lacaixaonline.com> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 31, 2006. On April 3, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On April 4, 2006, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 April 20, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was May 10, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 16, 2006.

The Center appointed Emmanuelle Ragot as the sole panelist in this matter on May 31, 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 is La Caixa d’Estalvis i Pensions de Barcelona, a major bank widely known, whose main business is in the field of pensions, banking and financial services. The group is known under the trade name “LA CAIXA”.

The Complainant has registered, since 1986, numerous trademarks containing as the essential part the term “la caixa” in classes 16, 35, 36, 38 in Spain, Andorra and Mexico.

The Complainant has also registered, since 1995, numerous domain names containing the term “la caixa” to present the company and offer its Internet services.

The domain name <lacaixaonline.com> was registered on December 26, 2004.

 

5. Parties’ Contentions

A. Complainant

The Complainant asserts that it owns numerous registered trademarks, and that it has registered numerous domain names that include the term “la caixa”.

The Respondent has registered and used the disputed domain name which, according to the Complainant, is confusingly similar to the La Caixa group’s trademarks.

The Complainant contends that the Respondent does not hold any registration for the trademark LA CAIXA or a similar mark. The Complainant also states that the Respondent does not hold any license or any other type of authorization given by the legitimate holders of said trademarks to use them.

The Complainant also alleges that the Respondent does not use the domain name <lacaixaonline.com> for a legitimate non-commercial or fair use. Rather, the Complainant contends that the Respondent registered the disputed domain name solely for the purpose of selling it, since selling domain names is the business of the Respondent.

Accordingly, the Complainant requests the Administrative Panel to issue a decision to transfer the domain name <lacaixanonline.com> to the Complainant.

B. Respondent

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

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel to:

“decide a complaint on the basis of the statements and documents submitted in accordance with the policy, these rules and any rules and principles of law that it deems applicable”.

Paragraph 4(a) of the Policy states that the Complainant must prove that each of the three following elements are present:

(i) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) that the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The term “la caixa” is the essential part of numerous trademarks of the Complainant which are registered in several countries.

The disputed domain name is a combination of “la caixa” and the word “online”.

A previous Panel (cf. La Caixa d’estalvis i Pensions de Barcelona v. N/A, WIPO Case No. D2005-0601) has decided, in a similar dispute relating to the domain name <lacaixaonline.net>, that the adjunction of the word “online” to the name “la caixa” does not diminish the confusing similarity between the domain name and the trademark since the word “online” is merely a descriptive term. The Panel in that case concluded that the word “online” might even increase the likelihood of confusion.

In the present case, the Panel does not hesitate to decide on the same basis that the disputed domain name is confusingly similar to the Complainant’s trademark.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate the Respondent’s rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):

“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a 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.”

It is well established from previous UDRP decisions (cf Croatian Airlines dd v. Modern Empires Internet Ltd WIPO Case No. D2003-0455) that while the overall burden of proof rests with the complainant, the burden of proof shifts to the respondent where the complainant establishes a prima facie case showing the lack of rights and legitimate interests of the respondent to the disputed domain name. If the respondent fails to rebut the Complainant’s case, a complaint is deemed to have satisfied paragraph 4(a)(ii) of the Policy.

In the present case, the Complainant states that it has not licensed or otherwise authorized the Respondent to use its trademark. The Panel finds that the domain name is not used in connection with a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy. The Panel notes that currently the website at the disputed domain name displays a site in German with a disparate range of links including to a number of computer and electronic sites. Prior to this, the disputed domain name appeared to contain links in Spanish resolving to a domain selling service, <domainbar.com>. Furthermore, there is no evidence in the file showing any of the three circumstances under paragraph 4(c) of the Policy, or any other circumstance that would establish rights or legitimate interests of the Respondent.

The Respondent has not submitted any Response and thus failed to demonstrate that he has rights or legitimate interests in the domain name pursuant to paragraph 4(c)(i), 4(c)(ii) or 4(c)(iii) of the Policy.

The Panel finds that the second element of the Policy has been established.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states that the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in 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 web site 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 web site or location or of a product or service on your web site or location.”

In the case at hand, the domain name <lacaixaonline.com> has been registered by the Respondent despite the fact that “la caixa” is a known trademark for financial services. The domain name has been used to display a web site with links in Spanish and a message indicating that the domain name is for sale.

The Respondent thus most likely knew that the term “la caixa” had a particular meaning for Spanish-speaking people and might lead to confusion with the popular banking institution.

Furthermore, as the links provided on the web site do not have any particular value or interest for a visitor to the site (most likely seeking information on the Complainant’s services), it seems that the main purpose of the web site is the sale of the disputed domain name to the Complainant or a competitor of the Complainant. This is further corroborated by the fact that after the Complainant contacted the Respondent, the latter offered to transfer the domain name to the Complainant for a sum of US$700, which is greater than his out-of-pocket costs directly related to the domain name.

It is clear that the Respondent aimed to profit from the selling of the disputed domain name to the legitimate holder of the trademark. Such intent is, furthermore, demonstrated by the fact that the web site was linked to “www.domainbar.com”, a domain-selling service.

Finally, the Respondent appears to regularly register domain names incorporating third parties’ trademarks in order to sell them to the trademark holders. See prior proceedings against the Respondent under the UDRP (i.e. ACCOR v. Mr. Young Gyoon Nah, WIPO Case No. D2004-0681; V&S Vin & Spirit v. Young Nah, WIPO Case No. D2004-0961; Realum KG v. Young Nah, WIPO Case No. D2005-0959; Hilton Group Plc v. Young Nah, WIPO Case No. D2005-0184).

The Panel concludes that pursuant to the facts as outlined above, the bad faith of the Respondent in the registration and use of the domain name has been established by the Complainant.

 

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, <lacaixaonline.com>, be transferred to the Complainant.


Emmanuelle Ragot
Sole Panelist

Dated: June 14, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0406.html

 

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