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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Globo Comunicações e Participações S.A. – Globopar, v. Artmidia Comunicação Visual Criação E Arte Ltda.
Case No. D2000-0606
1. The Parties
The Complainant is Globo Comunicações e Participações S.A., a company based in Rio de Janeiro, Brazil, with its principal place of businesslocated at Avenida Afrânio de Melo Franco, 135, Rio de Janeiro – RJ, Brazil (the "Complainant"). Respondent is Artmidia Comunicação Visual Criação e Arte Ltda., with its place of business located at Rua Rocha Pita 173, Pompйia, Belo Horizonte – Minas Gerais, 30120-470, Brazil, (the "Respondent").
2. The Domain Name and Registrar
The domain name at issue is "globopar.com". The Registrar is Network Solutions, Inc. NSI (the "REGISTRAR"), 505 Huntmar Park Drive, Herndon, VA 20170, USA.
3. Procedural History
The WIPO Arbitration and Mediation Center (the "Center") received the Complaint of Globo Comunicações e Participações S.A.. on June 15, 2000, by email and on June 19, 2000, in hardcopy.
The Complainant made the required fee payment, as informed in item 31. -Communications - of the Complaint.
On June 20, 2000, the Center acknowledge receipt of the Complaint and sent to the REGISTRAR, a request for verification of registration data that was answered in June 25, 2000, when the REGISTRAR confirmed, inter alia, that the domain name in dispute was registered through the REGISTRAR, that the "current registrant" is the Respondent, and that the domain name is in "Active" status.
On June 30, 2000, the Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules, and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), by running the Formal Requirements Compliance Checklist.
On June 30, 2000, the Center notified the Respondent under Paragraph 2(a) of the Rules together with copies of the Complaint.
On July 31, 2000, the Center sent to the parties the Notification of Respondent Default, considering that the Respondent failed to send a Response to the Complainant within the prescribed time limit.
On August 4, 2000, the Center received a Respondent’s Response.
On August 4, 2000, the Center sent e-mail to the Respondent informing that the Panelist should decide about the acceptance of the response.
On August 31, 2000, the Center appointed Mr. Josй Pio Tamassia Santos as the single member of the Administrative Panel (the "Panelist"), after receiving his completed and signed Statement of Acceptance and Declaration of Impartiality and Independence, and, on the same date, notified the parties of this appointment.
On September 5, 2000, this Panelist received, via courier, a complete copy of the Complaint and the corresponding enclosures.
4. Factual Background
The Complainant is Globo Comunicações e Participações S.A. - Globopar, a company based in Rio de Janeiro, Brazil, owner of TV Globo’s television production facilities and a holding company for a number of subsidiaries and associated companies involved in pay television (including a leading cable/satellite television program producer and a cable/satellite distribution system), publishing, telecommunications (including a Band-B cellular communications service provider, a leading paging systems operator and a satellite data transfer provider) and real estate.
The trademark upon which the Complaint is based is GLOBOPAR. The Complainant attached copies proving that owns the Brazilian Trademark Registration N° 816 297 428 for GLOBOPAR, in class 41, filed on August 1, 1991 and registered on May 4, 1993 for entertainment services.
Complainant also owns the US trademark application n° 75/628,234 for GLOBOPAR, in classes 38 and 41, filed with the United States Patent and Trademark Office on January 26, 1999.
The Complainant affirms that this registered mark GLOBOPAR has been used in Brazil and other countries for more than 27 years in numerous communications media, and that has developed substantial goodwill and name and brand recognition in its GLOBOPAR mark, based on its long and extensive use of GLOBOPAR mark.
Complainant also utilizes its GLOBOPAR mark on Complainant’s Brazilian web site, located at "globopar.com.br". Copies of certain pages from Complainant’s Internet web site utilizing its GLOBOPAR mark were attached to the Complaint.
5. Parties' Contentions
Complainant contends that:
(1) The domain name "globopar.com" is identical, and therefore confusingly similar to Complainant’s GLOBOPAR mark, in the following manners:
(a) Is identical, and therefore confusingly similar, in appearance, pronunciation and sound to Complainant’s GLOBOPAR mark.
(b) Incorporates fully Complainant’s GLOBOPAR mark being the only difference between the "globopar.com" domain name and Complainant’s GLOBOPAR mark, the domain name addition of ".com".
(c) Has suggestions, connotations, and commercial impressions associated with Complainant and Complainant’s expertise relating to Complainant’s television and entertainment products and services.
(2) Respondent has no rights or legitimate interests in respect of the "globopar.com" domain name, because of the following facts:
(a) Respondent’s use of the "globopar.com" domain name is not in connection with a bona fide offering of goods or services.
(b) Respondent is not commonly known or identified by the name "GLOBOPAR".
(c) Respondent does not operate a business or other organization commonly known as "GLOBOPAR" nor offers any goods or services under the GLOBOPAR mark.
(d) Respondent has not acquired trademark or service mark rights for the GLOBOPAR mark in Brazil.
(e) Respondent is not making a legitimate noncommercial or fair use of the domain name.
(f) Respondent is not a licensee of Complainant, nor is the Respondent otherwise authorized by Complainant to use Complainant’s GLOBOPAR mark or to apply for or use any domain name incorporating the GLOBOPAR mark.
(3) The "globopar.com" domain name has been registered in bad faith, because:
(a) Respondent does not conduct any legitimate commercial or noncommercial business under the GLOBOPAR mark.
(b) The Respondent has registered the "globopar.com" domain name for the purpose of selling or renting or otherwise transferring the domain name registration to Complainant or to a competitor of Complainant for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain name.
(c) The Respondent has registered the "globopar.com" domain name in order to prevent Complainant from reflecting its mark in corresponding domain name unless Complainant pays to purchase or rent the domain name from the Respondent.
(d) By registering the "globopar.com" domain name, Respondent is diverting consumers away from the official site of Complainant and making it difficult for Complainant’s customers and the general public to locate Complainant’s official web site, thereby disrupting Complainant’s business.
(e) By registering the "globopar.com" domain name, Respondent is giving the impression that Complainant does not have a web site.
(f) If Respondent sells the "globopar.com" domain name to a competitor of Complainant, that competitor of Complainant could likewise use this domain name to disrupt the business of Complainant and cause a substantial likelihood of confusion and substantial actual confusion.
(4) Respondent’s use of the "globopar.com" domain name is diluting and weakening the unique and distinctive significance of Complainant’s GLOBOPAR mark.
(5) Respondent’s use of domain names identical to Complainant’s GLOBOPAR mark has caused serious and irreparable injury and damage to Complainant and to the goodwill associated with Complainant and its GLOBOPAR mark.
(6) Respondent’s conduct is in violation of Brazilian trademark and unfair competition law.
Respondent contends that:
(1) It has never received any Notification of Commencement of Administrative Proceeding setting a specified date for the submission of a Response to the Complaint, nor even the "Notification of Respondent Default".
(2) Considering that it has never received a copy of the statements and allegations in the Complaint, there was no way to answer them. The Respondent would only describe the reasons why it has the domain name disputed.
(3) It created several sites to discuss and spread his ideas about several different Brazilian problems, giving as examples "brasilebrazil.com" and "aldeiaglobal.com". These sites are used to show the Brazilian culture, with several poetries, song lyrics, paintings and all kinds of pictures of the Brazilian hand made art stuff. Also "globosat.com" and "globosat.net" (stands for transgenic aliments global service) are used as a weapon against the sale of transgenic aliments to the starving and non-educated majority of the Brazilian population, without the warnings that have to be done about them.
(4) "globopar.com" was created with a non-commercial goal by the Respondent. The name of the site stands for "GLOBAL AMBIENT RIVER PROTECTION" (Globo Proteção Ambiental dos Rios).
(5) The Respondent created also three other sites to make the non-commercial ecological projet viable: "sosh2o.com", "projetoagua.com" and "sosagua.com".
(6) The site was registered under ".com" because to register it under ".com.br" the Respondent would need to open a business what should represent a high cost procedure.
(7) The site has links to newspapers where there are discussions about ecological problems and the latest news considering the Brazilian Consumers Act.
(8) The domain name was not created to be sold or rent to somebody else, and that the Respondent never contacted the Complainant to offer any business about the object of the Complaint.
It makes a few political considerations in reference to the Complainant, being these considerations not pertinent to the matter at issue.
6. Discussion and Findings
The Policy sets out in Paragraph 4(a) the cumulative elements that the Complainant shall prove in order to succeed in an administrative proceeding for abusive domain name registration. We will examine each one of these elements in the following points:
"4.a.(i) Identity or Confusing Similarity"
Since the particle "com" is an attribute of the gTLD, common to all the domain names under this TLD, it is beyond question that the trademark GLOBOPAR is identical to the domain name "globopar.com". Therefore, the requirement of Paragraph 4.a.(i) is fulfilled.
"4.a.(ii) Absence of Respondent Rights or Legitimate Interest in the Domain Name"
"GLOBOPAR" is not part of the name of the entity registering the "globopar.com" domain name.
The Respondent has presented his arguments to justify his rights and legitimate his interest in respect to the use of the phoneme "GLOBOPAR" as a domain name.
Though this response was filed after the deadline stated in the Notification of Complaint and Commencement of Administrative Proceeding, this Panelist accepts examining the presented arguments and considerations.
When visiting the site "globopar.com", this Panelist found a single nicely produced but dead page, without any active link, except for a link to the e-mail address of the Respondent. Therefore, was not verified the allegation of the Respondent about "links to newspapers, where there are discussions about ecological problems and the latest news considering the Brazilian Consumers Act".
Also a visit to the other three sites informed by the Respondent as having been created to make the ecological non-commercial project viable, namely "sosagua.com", "sosh2o.com" and "projetoagua.com", merely redirected the visitor to the site "artmidia.com".
A visit to the informed site "brasilebrazil.com" used to "show the Brazilian culture, with several poetries, song lyrics, paintings and all kinds of pictures of the Brazilian hand made art stuff", just returned the well known message: "Host name lookup for 'www.brasilebrazil.com' failed".
On this basis, this Panelist concludes that the Respondent has not any legitimate interest in the domain name "globopar.com". Therefore, the requirement of Paragraph 4.a.(ii) is fulfilled.
"4.a.(iii) Respondent Registration and Use of the Domain Name in Bad Faith"
The Respondent affirms that he registered the domain name under ".com" because in Brazil the Respondent would need to open a business in order to make the registration under ".com.br" with a high cost procedure. This is not a valid reason since the Respondent is already a registered business organization, and the costs for registration of domain names are about the same as in U.S.A.
The Complainant attached a list of about 100 domain names registered by the Respondent and by the Administrative and Billing Contact for the domain at issue, corresponding to well-known marks in Brazil. The Panelist verified this, and when trying to access most of them, was redirected to a page informing that the URL was under the administration of Domains Bank, "domainsbank.com", a domain name belonging also to the Respondent.
Among the domains verified one can find "alpargatas.com", "walita.com", "oxiteno.com", "uniao.com", "santista.com", "copene.com", all of them large Brazilian organizations and well-known trademarks.
The site of Domains Bank was at the moment of the visits, "under maintenance" and its use could not be verified. However, the name has a connotation related with the commerce of domain names.
The Complainant did not demonstrate having received any offer from the Respondent for selling the domain names at issue.
However, the fact that almost all the domain names registered by the Respondent or the Administrative Contact for these domains are inactive and redirected to a site apparently dedicated to the commerce of domain names, force this Panelist to consider that, in this case, exist "circumstances indicating that the Respondent has registered the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant or to a Complainant's competitor for valuable consideration".
Because of this, this Panelist arrives to the conclusion that the Respondent has registered and used the "globopar.com" domain name with bad faith. Therefore, the requirement of Paragraph 4.a.(iii) is fulfilled.
Registrar and ICANN Policies
As confirmed by Network Solutions in response to the Center’s request, Network Solutions Inc., NSI, is the Registrar of the domain name "globopar.com" and Network Solutions’4.0 Service Agreement is in effect.
As the basis for the application of the Policy and the Rules are the contractual obligations accepted by the domain name user when applying for it registration, this Panelist went to the REGISTRAR "Service Agreement" (http://www.networksolutions.com/legal/service-agreement.html) to check the applicable provisions.
In item 8 of this "Service Agreement", – Domain Name Dispute Policy –, is informed that the current version of the dispute policy may be found at (http://www.netsolutions.com/legal/dispute-policy.html).
A visit to this location resulted in a redirection to (http://www.domainmagistrate.com/dispute-policy.html) where can be found the Uniform Domain Name Dispute Resolution Policy (the "Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN").
In consequence, this Panelist adopted the present Decision on the basis of the Policy and the Rules approved by the Internet Corporation for Assigned Names and Numbers ("ICANN"), that are in force for NSI clients in the present case due to the terms and conditions accepted by the Respondent having consented to the REGISTRAR’s "Registration Agreement".
Complainant has proved that the domain name is identical to its trademark, that Respondent has no rights or legitimate interest in the domain name, and that Respondent registered and used the domain name in bad faith.
Therefore, according to Paragraph 4.i of the Policy, the Panel requires that the registration of the domain name "globopar.com" be transferred to the Complainant.
Josй Pio Tamassia Santos
Dated: September 13, 2000