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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Grupo Ferrovial, S.A. v. Andy Watson

Case No. D2007-1056

 

1. The Parties

The Complainant is Grupo Ferrovial, S.A., Madrid, Spain; represented by Ms. Caroline Segade, Cuatrecasas Abogados, Barcelona, Spain.

The Respondent is Andy Watson, Byfleet, United Kingdom.

2. The Domain Name and Registrar

The disputed domain name <ferrovialairports.com> is registered with NetBenefit plc a/k/a NetNames.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 18, 2007. On July 19, 2007, the Complainant filed a Supplemental Filing. On July 20, 2007, the Center transmitted by email to NetBenefit plc a/k/a NetNames a request for registrar verification in connection with the domain name(s) at issue. On July 27, 2007, NetBenefit plc a/k/a NetNames transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing their 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 July 30, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 19, 2007. On July 30, 2007, the Respondent sent an E-Mail to the Center to request a delay until the end of that day to file his Response. On the same day, the Center sent an E-Mail to the Respondent stating that the deadline for the Response was August 19, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 22, 2007.

The Center appointed Richard Hill as the sole panelist in this matter on August 30, 2007. 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 owns various Spanish and other national registered and common law trademarks for a string of FERROVIAL trademarks.

The Complainant uses those marks in connection with its extensive activities which include constructing and managing infrastructure, including airports.

The Respondent is using the contested domain name to point to a website consisting of a single web page promising to offer, in the future, some information. The nature of the promised information has changed over time. Initially it was about energy efficiency in general, then about energy efficiency on the basis of experience gained while working in an airport, and later about climate change and the aviation industry.

The Respondent works at an airport owned by the Complainant.

The Respondent registered the disputed domain name two days after that airport was acquired by the Complainant.

The Respondent was in communication with the Center, was aware of the deadline for filing a Response, and did not file a Response.

 

5. Parties’ Contentions

A. Complainant

The Complainant made the following allegations:

The Complainant is one of the world’s leading infrastructure groups, providing construction and management of infrastructures and services. The Complainant led a consortium of companies which, on June 6, 2006, acquired BAA PLC, the company charged with the management of the airports in the United Kingdom and other countries.

The Complainant owns a large number of trademarks in several countries based on the name FERROVIAL, in particular more than 60 Spanish trademarks and a UK trademark for FERROVIAL. It also operates websites at various domain names such as “www.ferrovial.com”, “www.ferrovial.net”, “www.ferrovial.org”, “www.ferrovial.biz”, and “www.ferrovial.info”.

At the moment of filing of the Complaint, the disputed domain name pointed to a website stating “energy efficiency is easy”, and stating that it aimed to serve as an online platform for responding to questions posed about how to be more energy efficient.

The disputed domain name is confusingly similar to the Complainant’s mark FERROVIAL, since it consists of that mark followed by the common word “airports”.

The Respondent does not fulfill any of the criteria set forth in Paragraph 4(c) of the Policy with respect to demonstrating rights or legitimate interests. There are no other circumstances that would lead the Panel to consider that the Respondent holds rights or legitimate interests in the disputed domain name. On the contrary, it appears that the Respondent has registered the disputed domain name in order to promote his own, unrelated, activities.

The Respondent registered the disputed domain name on June 8, 2006, two days after the Complainant took control of BAA, the UK airport operator. The negotiations leading up to that takeover had been widely reported in the press and the Respondent was surely aware of them. The only likely explanation for his registration of the disputed domain name a mere two days after the completion of the takeover is that the Respondent aimed to opportunistically register a domain name clearly relating to the Complainant’s FERROVIAL trademark combined with the word “airports” which identifies BAA’s activities.

Further, the Respondent’s actual use of the disputed domain name evidences bad faith. The website at the disputed domain name offers free advice on environmental and energy-saving issues. But those matters are not related to the domain name itself, which is composed of the words FERROVIAL (Complainant’s trademark) and “airports”.

In its Supplemental Filing of July 19, 2007, the Complainant alleges that the Respondent changed the website at the disputed domain name, by adding the statement:

Much of my material is based on my experiences working for BAA Heathrow, now owned by Grupo Ferrovial. I hope to draw conclusions on sustainable living by the examination of industries such as Ferrovial Airports whose diversity allows such an explanation to take place.

This shows that the Respondent was aware of the Complainant and of its takeover of BAA when he registered the disputed domain name. Thus, his use of Complainant’s FERROVIAL trademark was not casual, but was deliberately aimed at using the mark to attract Internet users to his own website.

B. Respondent

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

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The contested domain name is obviously confusingly similar to the Complainant’s mark FERROVIAL. See Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum March 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino”, a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity); see also Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries”, which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark).

B. Rights or Legitimate Interests

The Complainant states that the Respondent is not linked to the Complainant and does not have any license or other authorization to use the Complainant’s mark. The Respondent is using the disputed domain name to point to a website that promises to offer, in the future, information about energy efficiency.

The Respondent could, conceivably, have justified a legitimate interest in the disputed domain name by showing for example, that either it is currently or will in the future be used by Respondent in connection with a bona fide offering of goods or services, or conversely, that it contains specific information of a genuinely non-commercial nature related to the Complainant’s business, for example, energy consumption or energy efficiency information for the airports operated by the Complainant. See for example National Alliance for the Mentally Ill Contra Costa v. Mary Rae Fouts, FA 204074 (Nat’l Arb. Forum, November 28, 2003). Neither conceivably legitimate use currently appears in the evidence before the Panel.

Moreover, the Respondent has chosen not to reply. The word “chosen” is emphasized because the record shows that the Respondent was in touch with the Center. Indeed, on July 30, 2007, he sent an E-Mail to the Center in which he indicated that he would respond by the end of that day. By return E-Mail, the Center informed the Respondent that he had until August 19, 2007 to respond. But the Respondent never did respond.

According to 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.

In the present circumstances, the Panel infers from the Respondent’s apparently voluntary and deliberate failure to respond that he does not, in fact, have a plausible legitimate explanation for his registration of the contested domain name. See for example Randstad General Partner (U.S.), LLC v. Domains For Sale For You, WIPO Case No. D2000-0051, and InfoSpace.com, Inc. v. Hari Prakash, WIPO Case No. D2000-0076.

Consequently, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

It is clear that the Respondent was aware of the Complainant’s FERROVIAL mark when it registered and started using the disputed domain name, because he quotes the Complainant’s mark on his website, and because he works for the Complainant.

As noted above, the Respondent has not presented any plausible explanation for his use of the Complainant’s mark. As above, the Panel infers from that willful silence that the Respondent is highly unlikely to have had a good faith use in mind when he registered the disputed domain name, and this in particular because the disputed domain name was registered by the Respondent two days after the Complainant acquired the airport where the Complainant works; which acquisition was highly publicized.

The multiple changes made by Respondent in the website at the disputed domain name are also indication of bad faith use, because they appear to have been made in response to the Complaint.

Findings of bad faith are not limited to the examples enumerated in Paragraph 4(b) of the Policy. In particular, previous panels have found that registration by an employee of a domain name that is confusingly similar to the employer’s trademark, and that is not used to offer information directly related to the employer, constitutes bad faith in the sense of the Policy. See for example Savino Del Bene Inc. v. Graziano Innocenti Gennari, WIPO Case No. D2000-1133.

For the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name 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 name, <ferrovialairports.com> be transferred to the Complainant.

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Richard Hill
Sole Panelist

Dated: September 13, 2007