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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

GONVARRI INDUSTRIAL, S.A. v. GON VARR I Ano Sexo a Domicilio

Case No. D2000-0637

 

1. The Parties

1.1 Complainant: Gonvarri Industrial, S.A., with a place of business at Calle Prolongaciуn de Embajadores s/n, 28018 Madrid, Spain, represented by Mr. Antonio Creus & Mr. Albert Agustinoy, Cuatrecasas Abogados, with offices at Calle Velбzquez nє 63, 28001 Madrid, Spain, Tel. 00 34 91 524 71 43, Fax 00 34 91 524 71 62, E-mail: antonio_creus@cuatrecasas.com and albert_agustinoy@cuatrecasas.com.

1.2 Respondent: GON VARR I Ano Sexo a Domicilio, with a place of business at Calle Moncloa No. 1, 28080 Madrid, Spain.

 

2. The Domain Name and Registrar

2.1. The subject of the complaint is the domain name "GONVARRI.NET".

2.2 The registering entity is NETWORK SOLUTIONS, INC., with a place of business at 505 Huntmar Park Drive, Herndon, Virginia 20170-5139, USA.

 

3. Procedural History

3.1 A complaint was submitted to the WIPO Arbitration and Mediation Center (hereinafter called the Arbitration Center) on June 20, 2000, in accordance with the "Uniform Domain Name Dispute Resolution Policy" (hereinafter called the "Uniform Policy" as adopted by ICANN on October 24, 1999, and in accordance with the Rules for the Uniform Policy that ICANN likewise adopted.

3.2 A copy of the complaint was submitted electronically to the respondent (who did not reply to the complaint) on August 4, 2000.

3.3 On August 10, 2000, in accordance with the complainant's request that the dispute be decided by a panel consisting of a single member, WIPO appointed Mr. Alberto de Elzaburu as panelist and provided him with an incomplete copy of the documentation in a communication of that same date.

3.4 In a fax dated August 17, 2000, WIPO provided Mr. Alberto de Elzaburu with the exhibits attached to the complaint which did not initially arrive with the documentation.

 

4. Factual Background

4.1 The complainant, Gonvarri Industrial, S.A., is proprietor of several Spanish national trademark, trade name and title of establishment registrations and it likewise owns international trademark No. 598.263 in France, Italy and Portugal. All the registrations cover the word GONVARRI, with the exception of trade name registration No. 161.599 which protects the name Gonvarri Industrial, S.A. (GONINSA). The complainant's Spanish trademarks for GONVARRI are registered with the Spanish Patent and Trademark Office under numbers 1.714.812, 873.463 and 873.464 and they protect goods and services in classes 39, 6 and 40 respectively. Furthermore, the aforementioned trade name and title of establishment registration No. 128.510 GONVARRI protect activities related to those goods and services.

All the foregoing is evidenced in Exhibit No. 3, attached to the complaint.

4.2 The respondent, GON VARR I Ano Sexo a Domicilio, appears to be a Spanish company.

The following facts must also be taken into account for purposes of these arbitration proceedings:

- The domain name "GONVARRI.NET" was registered on April 9, 2000.

- The address where respondent appears to be registered is Calle Moncloa No. 1, 28080 Madrid, an address that coincides with that of the official residence of the Prime Minister of Spain.

- "Gonzбlez, Felipe" is given as the name of the administrative contact, this being precisely the name of the former Prime Minister of Spain.

 

5. Parties' Contentions

5.1 Complainant

The complainant establishes that:

Gonvarri Industrial, S.A. was incorporated in 1958 (as a limited liability company which was converted into a joint stock company in 1966).

Gonvarri Industrial, S.A. has been the proprietor of trademark rights in the term GONVARRI in Spain since 1979 and in France, Italy and Portugal since 1993, all of which is evidenced by the documentation making up Exhibit 3 of the complaint.

Gonvarri Industrial, S.A. obtained registration for the "GONVARRI.COM" domain name in July of 1997, as also evidenced in Exhibit 3 of the complaint.

In relation to the identification of the respondent, complainant further points out that:

- The respondent probably does not even exist considering that a name such as the one it has given could not be reasonably adopted by a company.

- It is not possible to determine the existence of the person identified as the administrative contact for the domain name (whose name coincides with the name of the former Prime Minister of Spain, Felipe Gonzбlez). This assumption is reinforced by the fact that the contact address for the respondent coincides with that of the usual residence of the Prime Minister of Spain.

- The telephone number given for the domain name in conflict is probably not the respondent's true telephone since the number given corresponds to an ice cream company called Helados Alacant.

- The e-mail given for the domain name in conflict has no connection with either the domain name or the respondent.

- As a consequence of all the foregoing, the complainant finds it impossible to identify the respondent or its activities.

In relation to the registration and use of the domain name by the respondent, complainant also establishes the following:

- The respondent registered a domain name identical to several of complainant's trademarks and to its name.

- The respondent has no relation to the complainant. The respondent has made no use of the domain name in conflict in good faith; it does not hold nor has it ever held any trademark rights in the term "GONVARRI"; and, therefore, it has no legitimate interest or right to use the term "GONVARRI".

- In applying for and registering the "GONVARRI.NET" domain name, the respondent may have had two objectives: to force the complainant to negotiate the purchase of the domain name and to prevent the complainant from using it. This leads to the conclusion that the registration was filed and obtained in bad faith.

- The total absence of content on the web page identified by the domain name in conflict evidences its non-use and therefore denotes a clear passive possession on the part of the respondent, from which it must be concluded that this constitutes use made in bad faith.

As a result, the complainant petitions that the "GONVARRI.NET" domain name registration be transferred to it.

5.2 Respondent

The complaint was transmitted to the respondent by e-mail and by ordinary mail, as evidenced in the procedural documentation sent to the Panel.

The respondent has not replied to the complaint.

 

6. Discussion and Findings

6.1 Applicable Rules

Paragraph 15(a) of the Rules instructs the Panel to render its decision on the basis of:

- the statements and documents submitted by the parties;

- the provisions of the "Uniform Policy" and of the "Rules" themselves; and

- any rules and principles of law that it deems applicable.

Considering that both the complainant and the respondent are of Spanish nationality, the law and principles of law of Spain are particularly pertinent together with the Rules of the Uniform Policy.

6.2 Examination of the Premises for Admissibility of the Complaint set out in Paragraph 4(a) of the Uniform Policy.

These premises are:

- the domain name registered by the respondent must be identical or confusingly similar to an earlier product or service mark in which the complainant holds rights.

- the respondent must have no rights or legitimate interest in respect of the domain name; and

- the domain name must have been registered and used in bad faith.

6.2.1 Analysis of the Identity or Similarity of the Trademarks and the Domain Name

Logically disregarding the ".NET" element identifying the TLD, the absolute identity of the "GONVARRI.NET" domain name and the GONVARRI trademark is beyond doubt.

6.2.2 Analysis of the Existence or Non-Existence of Rights or Legitimate Interests in the Domain Name in Conflict held by the Respondent

The respondent's failure to reply to the complaint prevents the panel from considering its version and knowing the reasons, rights and legitimate interests that may have led it to adopt "GONVARRI.NET" as a domain name.

The panel further believes that the respondent's failure to reply denotes an implicit acceptance that it holds no rights or legitimate interests, considering that it is not known:

- whether the respondent is conducting or has conducted any business related in any way to the term "GONVARRI";

- whether the respondent holds rights of any nature in the term "GONVARRI";

- what intentions the respondent may have had in adopting the domain name in conflict.

The panel concludes that the respondent does not hold, nor has it held in the past, any right or legitimate interest in the term "GONVARRI" in view of long-standing existence of the trademark rights owned by Gonvarri Industrial, S.A.; the activities in which the complainant has engaged under the name "GONVARRI"; and the length of time for which it has done so.

6.2.3 Analysis of the Existence or Non-Existence of Bad Faith in the Registration of the "GONVARRI.NET" Domain Name

6.2.3.1 Preliminary Considerations

The complainant has evidenced and proven the following facts in its complaint:

- the particulars of the administrative contact, insofar as his identity is concerned, correspond to the former Prime Minister of Spain, Mr. Felipe Gonzбlez.

- the particulars of the administrative contact, insofar as his postal address is concerned, correspond to the official residence of the Prime Minister of Spain.

- it has held trademark rights in the term "GONVARRI" since 1979, i.e. long before the date the domain name in conflict was created.

- its presence on the web under the "GONVARRI.COM" domain name dates from July 1, 1997, a date considerably earlier than that of the creation of the domain name in conflict.

The panel additionally considers that:

- the respondent could not plausibly have created the "GONVARRI.NET" domain name without prior knowledge of the complainant's corporate name, its trademarks and even its presence on the web.

- it is not conceivable that Mr. Felipe Gonzбlez, former Prime Minister of Spain, could have some connection with the domain name in conflict or have participated in the matter, from which it follows that, by using an identity and postal address other than his own, the respondent expressly intended to not allow himself to be properly identified.

- it cannot be asserted that good faith was used in registering a domain name for which not only was a false name and address given but also the complainant's identification (GONVARRI) was linked to activities with derogatory connotations such as "Sexo a Domicilio" ("home-delivered sex") even though such activities may not actually be carried out in practice.

6.2.3.2 The panel believes that the respondent's conduct can be classified under paragraph 4(a) of the Uniform Policy and specifically under paragraph 4(b) as regards registration and use in bad faith.

When considering the particular circumstances described in paragraph 4(b) of the Uniform Policy, it is true that the panel cannot conclude from the documentation submitted that the respondent has put his domain name up for sale [ 4(b)(i)] . Furthermore, although the registration of the domain name in conflict prevents the complainant and owner of the trademark from registering it, it cannot be said that this constitutes a pattern of conduct on the part of the respondent [ 4(b)(ii)] . Neither can it be said that the respondent has obtained registration of the domain name in conflict for the purpose of disrupting a competitor's business [ 4(b)(iii)] nor that he secured the registration for the purpose of obtaining commercial gain from Internet users who logged on to his web site (in view of the absence of content of the corresponding web site) [ 4(b)(iv)] .

Nonetheless, the fact that, in the panel's opinion, none of the "particular" circumstances described in paragraph 4 b) of the Uniform Policy can be considered present in the case under study does not mean that the domain name in question was not registered and used in bad faith given that the beginning of paragraph 4(b) itself establishes that the panel's capacity to conclude that a domain name has been registered and used in bad faith is not restricted to those "particular" circumstances.

Earlier decisions, including No. D2000-0010, have followed this same criterion.

6.2.3.3 In view of the foregoing, the panel has reached the following conclusions:

It is clear that, when registering the domain name in conflict, the respondent made certain that his true identity could not be discovered. Furthermore, he did so by stating contact information corresponding to the former Prime Minister of Spain, Mr. Felipe Gonzбlez, and to the postal address of the Spanish Prime Minister's official residence.

This conduct, together with the existence of long-consolidated rights in the term "GONVARRI" in the name of the complainant (ruling out a conclusion that the respondent could have created the domain name independently) and the non-existence of rights and legitimate interests in the respondent's name, leads the panel to conclude that the respondent registered the domain name in conflict in bad faith.

The Panel believes that the requirement of "use in bad faith" may be considered from two standpoints:

- From the documentation received by the panel and from the respondent's failure to reply to the complaint, it may be concluded that he has made no use of the domain name in conflict and that he is not preparing to do so. Neither has the respondent effected any other active conduct implying use in bad faith such as attempting to assign the domain name to the complainant, to its competitors or to any other third party, for example.

Nonetheless, in view of the circumstances and in line with the criterion followed in decision 2000-0003, among others, the panel considers that the concept of "use in bad faith" is not restricted to active conduct, activities or action in using the domain name. Rather, the non-existence of all action or conduct in respect of that use may and must be included in the concept of "use in bad faith"; in other words, it is possible to conclude under certain circumstances that a total absence of activity in respect of use of the domain name in conflict may be considered use in bad faith.

The same spirit of interpretation was followed in other decisions such as No. D2000-0239 where it is held that he who acts in bad faith in registering a domain name will also use it in bad faith given that the concept of "bad faith" must be linked to the knowledge held at the time of registration that a third party's rights were being damaged even though, subsequently, the domain name in question may not be used. This criterion is equally applicable to the case under study.

- Furthermore, as mentioned earlier, the corporate name identifying the respondent contains a phrase with derogatory connotations (ano sexo a domicilio/home-delivered anus sex) which is associated with the term "GONVARRI".

The panel holds this disparaging use of the word that publicly identifies the complainant to be use in bad faith. Even in the event that the respondent did not have the specific intention of discrediting the complainant's good name, he could not be unaware of the possibility of doing so when he applied to register the domain name in conflict.

The panel consequently concludes that the requirement of use in bad faith by the respondent has been met.

Pursuant to paragraph 15(a) of the Rules, the panel must render its decision on the basis of the statements and documents submitted by the parties during the proceedings. In this case, none of the evidence submitted by the complainant may be considered debatable since the respondent did not reply to the complaint and, moreover, that evidence certainly appears to be genuine.

 

7. Decision

For all the foregoing reasons, the Administrative Panel decides that the complainant has proven the presence of the three premises set out in Paragraphs 4(a) and (b). Consequently, the Administrative Panel requires that the "GONVARRI.NET" domain name be transferred to the complainant.

 


 

Alberto de Elzaburu
Sole Panelist

August 28, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0637.html

 

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