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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Cosmo Bulgaria Mobile JSC v. Martin Georgiev

Case No. D2007-1356

1. The Parties

Complainant is Cosmo Bulgaria Mobile JSC, Sofia, Bulgaria, represented by Dr. Jivko Draganov, Bulgaria.

Respondent is Martin Georgiev, Elin Pelin, Bulgaria.

2. The Domain Name and Registrar

The disputed domain name <globul.mobi> (the “Domain Name”) is registered with Tucows Inc., Toronto, Canada (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 11, 2007. On September 17, 2007, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name at issue. On September 17, 2007, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amendment to the Complaint on September 22, 2007. The Center verified that the Complaint together with the amendment to 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 September 26, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was October 16, 2007. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 17, 2007.

The Center appointed Assen Alexiev as the sole panelist in this matter on October 29, 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.

On the grounds of Rules, paragraph 11(a), the language of this administrative proceeding is English, being the language of the Domain Name Registration Agreement.

4. Factual Background

Complainant is the owner of the following trademarks, registered for the territory of Bulgaria:

– GLOBUL, reg. No.00043010, registered on September 26, 2002 for services in classes 35 and 38;

GLOBUL ОБЩУВАЙ СВОБОДНО, reg. No.00045599, registered on September 19, 2003 for goods and services in classes 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45;

GLOBUL WHENEVER YOU WANT TO BE HEARD, reg. No.00058308, registered on February 28, 2007 for goods and services in classes 9, 35 38, and 42;

GLOBUL КОГАТО ИСКАШ ДА ТЕ ЧУЯТ, reg. No.00058309, registered on February 28, 2007 for goods and services in classes 9, 35, 38, and 42.

The Domain Name was registered on September 27, 2006, and appears to have been acquired by Respondent on November 27, 2006.

5. Parties’ Contentions

A. Complainant

Complainant is a leading mobile operator in Bulgaria, with more than 3,600,000 clients. Its GLOBUL trademarks are widely advertised, and have gained significant public recognition in the last six years. Complainant uses the GLOBUL trademark as a domain name. Its main website is located at “www.globul.bg” and has had about 40,000 daily visits in the past five years. Clients and potential customers of Complainant would normally search for it online using the word “globul”.

The Domain Name is identical to the verbal element of these trademarks, as it consists of the word “globul” and the suffix “.mobi”, which does not prevent the Domain Name from being identical or confusingly similar to the above mentioned trademarks. Adidas AG v. Zhifang Wu, WIPO Case No. D2007-0032.

Complainant claims that Respondent has no rights or legitimate interests in the Domain Name, and that Respondent is not known by it. Since its acquisition in November 2006, Respondent has not used the Domain Name for any purpose, and has not demonstrated any preparation to use it in connection with a bona fide offering of goods or services. Respondent is not making a legitimate noncommercial or fair-use of the Domain Name either. There is no conceivable bona fide legitimate use to which Respondent can make of the Domain Name. “Globul” is an invented word, so it is not one that Respondent would legitimately choose unless seeking to create an impression of an association with Complainant or telecommunication services.

Complainant has never licensed, permitted or authorized Respondent to use any of Complainant’s trademarks or a domain name which incorporates any of those marks.

Complainant contends that the Domain Name has been registered and used in bad faith under paragraph 4(a)(iii) of the Policy by Respondent. The Domain Name was acquired by Respondent primarily for the purpose of selling it, or otherwise transferring it to Complainant. On June 27, 2007 a meeting was held between Respondent and representatives of Complainant, and Respondent stated that he would transfer the Domain Name to Complainant, if the latter enters an advertising agreement with Respondent’s company. Later, Respondent offered Complainant advertising on Respondent’s website at “www.All4SmartPhone.com” against advance payment of BGN 7200 (approximately USD5130). Respondent also orally stated that he would not offer the sale of the Domain Name, as this would be illegitimate, but if Complainant entered the offered agreement, he would immediately transfer the Domain Name. In reply to his offer, Complainant proposed to compensate Respondent’s expenses for the Domain Name in exchange of its transfer to Complainant. Respondent never replied to this proposal.

Complainant further states that acquiring the Domain Name, Respondent was well aware of Complainant and of the fact that no active use of the Domain Name by Respondent would be legitimate, as it would either constitute a passing-off, an infringement of consumer protection legislation, or an infringement of Complainant’s trademark rights. Respondent never established a website, or started any kind of preparations to use the Domain Name, thus only “passively holding” it. It is a consensus view of the Panelists, that the lack of active use of the Domain Name does not as such prevent a finding of bad faith.

The remedy requested by Complainant is the transfer of the Domain Name to it.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

Pursuant to paragraph 4(a) of the Policy, Complainant must prove each of the following to justify the transfer of the Domain Name:

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

(ii) That Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) That Respondent has registered and is using the Domain Name in bad faith.

In this case, the Center has employed the required measures to achieve actual notice of the Complaint to Respondent, in compliance with Rules, paragraph 2(a), and Respondent was given a fair opportunity to present its case.

By Rules, paragraph 5(b)(i), it is expected of a Respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name[…]”

In the event of a default, under Rules, paragraph (14)(b): “[…]the Panel shall draw such inferences therefrom as it considers appropriate.”

As stated by the Panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques, WIPO Case No. D2000-0004: “Here, the potential evidence of good faith registration and use was in respondent’s control. Respondent’s failure to present any such evidence or to deny complainant’s allegations allows an inference that the evidence would not have been favorable to respondent.” As stated by the Panel in Viacom International Inc. v. Ir Suryani, WIPO Case No. D2001-1443: “Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.”

In this administrative proceeding, Respondent’s default entitles the Panel to conclude that Respondent has no arguments or evidence to rebut the assertions of Complainant. The Panel has to take its decision on the basis of the statements and documents submitted by Complainant and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.

A. Identical or Confusingly Similar

Complainant has provided evidence and has thus established its rights in the GLOBUL trademark, protected in Bulgaria through several registrations both as a single word mark and as a combined trademark, where “globul” is the distinctive element.

It is a common practice under the Policy to disregard the final sections of domain names (in this case the “.mobi” section) for the purposes of the comparison under Policy, paragraph 4(a)(i). Therefore, the relevant part of the Domain Name that has to be analyzed for the purposes of the test under Policy, paragraph (4)(a), is the sequence “globul”. This sequence is identical to the GLOBUL single word mark of Complainant.

On these grounds, the Panel finds that the Domain Name is identical to a trademark in which Complainant has rights.

B. Rights or Legitimate Interests

Complainant has contended that Respondent has no rights or legitimate interests in the Domain Name. It is not authorized by Complainant to use the GLOBUL trademarks, and is not commonly known by the name “globul”. Respondent has not used the Domain Name for any purpose, and there is no conceivable bona fide legitimate use which Respondent can make of the Domain Name. “Globul” is an invented word, and not one that Respondent would likely choose unless seeking to create an impression of an association with Complainant or telecommunication services.

Thus, Complainant has established a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name.

It is well established that once Complainant makes out a prima facie case under Policy, paragraph 4(a)(ii), the burden shifts to Respondent to rebut the showing by providing evidence of its rights or legitimate interests in the Domain Name.

Respondent, although given a fair opportunity to do so, has chosen not to present to the Panel any arguments in its defense in accordance with the Rules, paragraph 5(b)(i) and 5(b)(ix), despite the consequences that the Panel may extract from the fact of a default (Rules, paragraph 14). If Respondent had any legitimate reason for the registration or use of the disputed Domain Name, it could have brought it to the attention of the Panel. In particular, Respondent has failed to contend that any of the circumstances described in Policy, paragraph 4(c), is present in his favor.

In fact, the only information available about Respondent, apart from the contentions made by Complainant, is the Whois information, provided by the Registrar.

The Whois information contains no evidence that Respondent is commonly known by the Domain Name.

The GLOBUL trademark is widely advertised and popular in Bulgaria, and Respondent is a Bulgarian national. There is no active website linked to the Domain Name.

As contended by Complainant, Respondent’s offer of advertising services to Complainant tacitly included the transfer of the Domain Name as means of inducing Complainant to accept the offer.

Therefore, it is clear that Respondent was well aware of Complainant and its trademarks. In the lack of any evidence to the contrary, it is very likely that Respondent acquired the Domain Name mainly taking into account the goodwill of the GLOBUL trademark and the value of the Domain Name for Complainant, in an attempt to extract certain commercial gain by using the Domain Name as a tool for negotiations with Complainant.

Such actions may not be regarded as bona fide, and the Panel finds that Respondent has no rights or legitimate interests in the Domain Name. The second element of the test, required under the Policy, paragraph (4)(a), is therefore established.

C. Registered and Used in Bad Faith

Complainant contends that the Domain Name was acquired by Respondent primarily for the purpose of selling it, or otherwise transferring it to Complainant for profit. Respondent never established a website, or started any preparations for the use of the Domain Name, thus only passively holding it.

As found above, the Domain Name is identical to Complainant’s GLOBUL trademark. Respondent acquired it without having any rights or legitimate interests in such name, while being fully aware of the goodwill attached to it that was created through the efforts of Complainant.

It is established under the Policy that a transfer of a domain name to a party amounts to a new registration by this party, hence the criteria used for assessment of the conduct of a respondent when registering a domain name apply also to cases where the actual respondent acquired a domain name after its registration by another person.

The advertising proposal made by Respondent, while not being an explicit offer for the sale of the Domain Name to Complainant, and the oral statements made by Respondent in the course of the negotiations with Complainant, provide clues why Respondent acquired the Domain Name and never used it himself. The requested advance payment of a significant sum for advertising, combined with the oral assurances that the Domain Name would be transferred immediately to Complainant, show that Respondent tried to extract money from Complainant by selling it services under unfavorable terms while using the Domain Name as bait. This is not an “active use” of the Domain Name in the normal sense (i.e., through creating a website and attaching it to the Domain Name), but is an attempt to benefit from it unduly.

Taken together, this evidence supports a finding that Respondent acquired and used the Domain Name in bad faith under paragraph 4(b)(i) of the Policy.

In addition, considering the rights of Complainant over the GLOBUL trademarks and their popularity, it is clear that no active use of the Domain Name by Respondent would be legitimate. It is widely accepted that in such circumstances the lack of active use of the Domain Name does not prevent a finding of bad faith. See e.g., Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

Therefore, Complainant succeeds under the third element of the test required under the Policy, paragraph (4)(a).

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 <globul.mobi> be transferred to Complainant.


Assen Alexiev
Sole Panelist

Dated: November 14, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1356.html

 

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