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and Mediation Center
ADMINISTRATIVE PANEL DECISION
EDREAMS Inc. v. EDR INFORMATION SYSTEMS Inc.
Case No. D2006-1247
1. The Parties
The Complainant is EDREAMS Inc. of Barcelona, Spain.
The Respondent is EDR Information Systems Inc. of Virginia, United States of America.
2. The Domain Name and Registrar
The disputed domain name <edrims.com> 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 September 27, 2006. On September 29, 2006, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name at issue. This was given on September 29, 2006, with confirmation that the current registrant is the Respondent EDR Information Systems Inc.
The Center verified that the Complaint satisfied the formal requirements of the Uniformed Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniformed Domain Name Dispute Resolution Policy (the “Rules”) and the WIPO Supplemental Rules for Uniformed Domain Name Dispute Resolution Policy (“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 October 5, 2006. In accordance with the Rules, paragraph 5(a),
the due date for the Response was October 26, 2006. No formal response having
been received from the Respondent on October 27, 2006 notification of the Respondent’s
default was served upon the Respondent by email. On November 17, 2006, the Center
appointed Mr. Clive Duncan Thorne 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
In view of the fact that no response has been filed, the Panel proceeds to deal with this dispute on the basis of the Complaint alone.
The Complainant EDREAMS Inc. is an American business corporation, which includes several companies focusing on European Travel Operations in Spain, United Kingdom and Italy.
The Complainant has developed a leading European Travel Portal during the past 8 years reaching a top position in the Spanish and Italian markets. This placement was achieved as a consequence of the effort and significant agreements apparently signed with a large range of tour operators.
The Complainant now owns one of the most important travel portals guided to multi-lingual end customers and providing services through experts in worldwide destinations and leisure activities. The Complainant was founded in March 1999 in Silicon Valley and currently owns offices in Barcelona, London, Milan and San Francisco. It was initially supported by financing from $20,000,000 from Apax Partners, Atlas Adventure, BSCH, Net-Partners and Doll Capital.
At Annex III to the Complaint are due details of the corporate structure.
The Complainant is the owner of a number of trademarks for the mark EDREAMS. These include European Community Trademark No. 1644103 registered on the May 8, 2000, United Kingdom registration number 2209087 registered on September 17, 1999, and United States registration number 75794965 registered on September 9, 1999.
At Annex IV to the Complaint are copies of Whois searches in respect of the domain names <edreams.com> and <edreams.net>, which show that these domain names are registered in the name of the Complainant.
The Complainant puts particular emphasis on the United States trademark No. 75794965 for the mark EDREAMS, which covers the following services:
“on-line travel planning services, namely, travel booking agencies, travel clubs, making reservations for bookings transportation and providing travel planning information via a global computer network” and “on-line travel agency services namely making reservations and bookings for temporary lodging.”
The Complainant submits that due to its business activity it has obtained a significant position in the market dealing with worldwide travel operators and has achieved a well-known name around the world especially in the member countries of the European Union and in the United States where it had its origins and which is where the Respondent is headquartered according to the Registrar information for the domain name. In support of its rights, the Complainant relies upon a number of reports and articles published in magazines and newspapers which are annexed at Annex VI to the Complaint.
There is very little evidence about the Respondent.
The Complainant has undertaken searches on the Worldwide web and has largely
drawn a blank. What is clear is the fact that as a result of a search undertaken
by the Complainant in the US trademark office there is no evidence that EDR
Information Systems Inc. owns any trademark registered in respect of the mark
“Edrims”. No evidence is available of the Respondent’s trading
5. Parties’ Contentions
The Complainant contends the following:
(i) The domain name is identical or confusingly similar to a trademark in which the Complainant has rights. The Complainant submits that the domain name in dispute is “almost identical from the denominative and phonetic perspective to the domain name and other prior rights owned by Edreams Inc. in respect of EDREAMS.
(ii) The Respondent has no rights or legitimate interest in respect of the domain name. The Complainant relies on the fact that there is no evidence of trading use of the domain name and that it is “obvious” that the Respondent is not commonly known by the domain <edrims.com> and it is also “obvious” that the Respondent has no rights or legitimate interests in respect of the domain <edrims.com> and is moreover not an authorised dealer of EDREAMS, Inc.
(iii) The domain name was registered and is being used in bad faith. The Complainant submits that the Respondent is not using the domain name in dispute and has not made any “demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services”. It submits that the alleged purpose of the registration of the domain name was to attract consumers to its own website.
In summary, the Complainant submits that the fact that the Respondent decided to apply for a domain name almost identical to “EDREAMS” is itself evidence of bad faith.
The Respondent sent an email to the Center on October
5, 2006 (see discussion below), but did not submit a formal response.
6. Discussion and Findings
General Principles under the Policy and the Rules
Under paragraph 4(a) of the Policy, the Complainant has the burden of proof in showing:
(i) that the domain name 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.
Paragraph 4(b) of the Policy lists a number of circumstances, which, without limitation, are deemed to be evidence of the registration and use of the domain name in bad faith.
A. Identical or Confusingly Similar
The Complainant is the registered trademark proprietor of the word mark EDREAMS registered in a number of jurisdictions. The difference between the mark EDREAMS and the domain name <edrims.com> is the use of the letter “i” rather than the letters “ea” in the domain name. The Complainant invites the Panel to conclude that the domain name is “almost” identical from the denominative and phonetic perspective to “EDREAMS”. The Panel takes the view that there is a phonetic similarity which would be sufficient in some jurisdictions to constitute evidence of trademark infringement. For this reason the Panel accepts the submission of the Complainant and finds that the domain name in dispute is confusingly similar to the trademark “EDREAMS” owned by the Complainant. The Complainant succeeds in proving this element.
B. Rights or Legitimate Interests
In summary, the Complainant’s contention is that after an in-depth search it has not been able to show any evidence that justifies use of the domain name by the Respondent. It points out that the Respondent is not apparently commonly known by the domain name <edrims.com> and that it is “obvious” that the Respondent has no rights or legitimate interests in respect of the domain name <edrims.com> and in particular has no dealership arrangement with the Complainant.
The Panel finds that the Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests to the disputed domain name and thus the burden of proof on this element shifts to the Respondent.
The Panel notes that the Respondent forwarded an email communication to the Center on October 5, 2006, stating that the domain name is a shortened version of their company name and saying that “[w]e have only used our domain name for email to this point but we plan on a future web site using ‘edrims.com’ for our main domain name to promote our business in our market”.
The Panel is in some difficulty in having no evidence as to the activities of the Respondent. It is arguable that the domain name <edrims.com> is some form of word play on the name of the Respondent company EDR Information Systems i.e., the use of the initials EDR. However, the Panel would expect the domain name to be <edrin.com> if that was so. As to the alleged use of the domain name for sending email, the Panel notes that the Respondent’s email communication seems to have been forwarded from “[name]@sc.rr.com” and not from “[name]@edrims.com”.
Having considered the matter, and taking into account that there is no evidence or submissions to the contrary, the Panel comes to the conclusion that the Complainant has succeeded in proving this element.
Accordingly the Panel finds for the Complaint in respect of this element.
C. Bad Faith
The Complainant relies upon the fact that the domain name, although registered on April 21 2004, is apparently still inactive. The Complainant suggests that this indicates that the domain name is not being used for a bona fide business or commercial purpose. The Complainant argues that the domain name has the potential of being used by the Respondent to attract consumers and competitors of the Complainant and thus divert customers from the Complainant.
It also submits that there is evidence that the Respondent registered the domain name primarily for the purpose of selling the domain name for other than documented out of pocket expenses. As evidence to support this submission it relies upon a print out at Annex X which demonstrates that <edrims.com> is posted on the website with the inscription “see options together unavailable (sic) domain names”.
The Respondent submits that the above-mentioned inscription appears automatically on all websites with domain names that have been registered with Network Solutions and which are not being used.
Without adequate evidence of the activities of the Respondent it is difficult for the Panel to reach a decision on this element. However, bearing in mind that the Respondent has not submitted any evidence to support any of its allegations although the Respondent has had every opportunity to do so and also taking into consideration all the submissions of the Complainant relating to bad faith, the Panel considers that it is able to make a finding of bad faith registration and use given the passive use of the disputed domain name for over three years combined with the fact that the website with the domain name displayed a general offer to sell the domain name.
Accordingly, the Complainant succeeds in this element.
For the above reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules the Panel orders that the domain name <edrims.com> be transferred to the Complainant.
Clive Duncan Thorne
Dated: December 1, 2006