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WIPO Arbitration and Mediation Center

 

2007-0005

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

I.T. Magyar Cinema Kft. v. Advertising Market SRL

Case No. DRO2007-0005

 

1. The Parties

The Complainant is I.T. Magyar Cinema Kft., Budapest, Hungary, represented by Bogdan Cringureanu as an attorney.

The Respondent is Advertising Market SRL, Bucharest, Romania, represented by its administrator.

 

2. The Domain Names and Registrar

The disputed domain names: <cinema-city.ro>, <cinemacity.ro>, <cinema-city-romania.ro>, <cinemacity-romania.ro>, <cinemacityromania.ro> are all registered with National Institute of R&D on Informatics.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 18, 2007. On June 19, 2007, the Center transmitted by email to National Institute of R&D on Informatics a request for registrar verification in connection with the domain names at issue. On June 20, 2007, National Institute of R&D on Informatics transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On July 6, 2007, the Complainant submitted a request that English be the language of proceedings. The same day, the Respondent provided a request in English that Romanian be the language of proceedings. 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 13, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 2, 2007. On July 31, 2007, the Respondent requested an extension of the Response due date. On August 1, 2007, the Center extended the Response due date to August 6, 2007. The Response was filed with the Center on August 6, 2007.

The Center appointed Beatrice Onica Jarka as the sole panelist in this matter on August 21, 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.

The Panel considers, based on the request of the Complainant for English language, on the material facts of the case and on the language of the Response, that the proceedings language in this case should be English. In particular, the Panel notes that the material facts of this proceeding are generated in the English language: the disputed domain name, the language of the Respondent’s and the Complainant’s allegations. Even though the Respondent is Romanian and is thus not a native English speaker and even though it requested proceedings in Romanian language, the Panel finds that persuasive evidence has been adduced by the Complainant and by the Respondent itself to suggest that the Respondent is conversant and proficient in the English language.

On August 8, 2007, the Complainant filed by email with the Center some explanations to the Respondent’s allegations considered by the Center as Supplemental Filling and thus communicated to the Respondent and to the Panel. As the Rules do not contain any express provision for Supplemental Fillings and the explanations brought by the Complainant do not bring anything essential new in addition to the facts described in the Complaint, the Panel chooses to not consider this Supplemental Filling filed on August 8, 2007.

 

4. Factual Background

The Complainant is part of a group which dates back to 1929 in the business of film projections. The Complainant is the owner of an international registration for the trademark with figurative elements CINEMA CITY issued by the International Bureau of WIPO on August 17, 2006, under the number 890567 for goods and services as film projection, distribution of films and operation of cinemas (class 41). The international protection covers, among other countries, Romania.

The Respondent is Advertising Market SRL, a company registered in Romania in 2006. The Respondent registered the disputed domain names on March 5, 2007. None of the disputed domain names resolves to an active website.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that:

- The disputed domain names are identical to a trademark in which the Complainant has rights;

- The Respondent has no rights or legitimate interests in respect of the disputed domain names as it is not affiliated with the Complainant in any way and it was recently registered as a company with no connection with the disputed domain names;

- The disputed domain names had been registered and are to be used in bad faith, as the Complainant’s mark is a well-known one and the disputed domain names were registered for the purpose of obtaining commercial gain from the Complainant and in order to prevent it to reflect its trademark in a Romanian domain name.

B. Respondent

By the Response submitted following a request for a term extension, admitted by the Center on August 1, 2007, the Respondent answers to the Complainant’s allegations that:

- The disputed domain names consist of generic words which should be kept free from any trademark registration;

- The Complainant has incorporated Cinema City Romania SRL in 2006 with a unique associate I.T. Magyar Cineman Kft, member of the Cinema City International N.V, which has no business history in Romania;

- The Respondent has registered the disputed domain name <cinemacity.ro> and <cinema-city.ro> which are under construction with the intent to develop a business as a small audio-video production house for advertising ads and the rental of audio – video equipments and then if successful to develop to motion movie production. In such sense it was the intent of the Respondent to focus on gaining money by developing a cinema city guide based on it experience of the owner of the Respondent in the advertising field;

- The disputed domain names were not registered and are not being used in bad faith as the trademark of the Complainant has no notoriety in Romania and it had no intention whatsoever to sell it to the Complainant but to develop a business of its own.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant is the owner of an international registration for the trademark with figurative elements CINEMA CITY issued by the International Bureau of WIPO on August 17, 2006, under the number 890567 for goods and services as film projection, distribution of films and operation of cinemas (class 41). The protection covers, among other countries, Romania. The dominant element in the trademark is the word part comprising the two terms “cinema” “city”, which is repeated twice in the content of the trademark and which by use in the specific field of film projections and by registration confers to the Complainant rights in both word and figurative parts of the CINEMA CITY mark. As the figurative elements cannot be reflected in a domain name it is the word part, comprising the two terms “cinema” “city” which may be reflected in a domain name.

Two of the disputed domain names: <cinema-city.ro>, <cinemacity.ro>, comprise with different writing, in its entirety, the word part of the Complainant trademark with the addition of the country top level domain “.ro”. Such elements, in the opinion of the Panel, do not confer to these two disputed domain names, distinctiveness from the Complainant’s mark and render these two disputed domain names identical with the word part of the mark in which the Complainant has rights.

The other disputed domain names <cinema-city-romania.ro>, <cinemacity-romania.ro>, <cinemacityromania.ro> comprise in its entirety the word part of the Complainant’s mark and the word Romania, with different writings. The addition of the word Romania does not confer distinctiveness, but merely indicates a connection with the country in which the services under the trademark CINEMA CITY are to be offered. With reference to these three domain names the Panel finds that there is a confusing similarity between them and the Complainant’s mark.

B. Rights or Legitimate Interests

The Respondent asserts that it intended to use the disputed domain names for offering different services in connection to developing a small audio-video production house for advertising ads and the rental of audio – video equipments and if successful, further for developing to motion movie production. Except for the said statements in the Response, the Respondent did not produce any evidence to support such statements. In addition, none of the disputed domain names resolves to an active website which could have supported the Respondent’s statements. Two of the disputed domain names <cinema-city.ro>, <cinemacity.ro> resolve to a website under construction, while the other three <cinema-city-romania.ro>, <cinemacity-romania.ro>, <cinemacityromania.ro> do not resolve to any website at all.

Such circumstances cannot be considered by the Panel as a bona fide offering or preparation of offering of services under the disputed domain names which could justify rights or legitimate interests in the disputed domain names by the Respondent.

Moreover, the Panel has not found other circumstances under the Policy justifying rights or legitimate interests in the disputed domain names by the Respondent.

C. Registered and Used in Bad Faith

The Panel finds the bad faith intent in registering the disputed domain names. The Respondent has demonstrated by its own statements and the evidence supporting such statements in the case, that it had knowledge of the Complainant’s business under the trademark CINEMA CITY in Central and Eastern Europe when it registered the disputed domain names.

Considering such knowledge and having found no circumstance to indicate legitimate rights or interests in the disputed domain names, the Panel accepts and finds true the Complainant’s allegations to the Respondent’s bad faith in registering and using the disputed domain names.

 

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 names: <cinema-city.ro>, <cinemacity.ro>, <cinema-city-romania.ro>, <cinemacity-romania.ro>, <cinemacityromania.ro>, be transferred to the Complainant.

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Beatrice Onica Jarka
Sole Panelist

Dated: September 5, 2007