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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

General Optica, S.A. v. Cuatelart, S.L.

Case No. D2000-0974

 

1. The Parties

1.1. The Complainant is General Optica, S.A. incorporated in Barcelona, Spain, represented by Mr. Albert Agustinoy Guilayn, lawyer from Madrid, Spain.

1.2. The Respondent is Cuatelart, S.L., of Barcelona, Spain.

 

2 The Domain Name and Registrar

2.1 The domain name subject-matter of this Complaint is "generaloptica.com".

2.2 The Registrar of this domain name is Network Solutions, Inc of Herndon, Virginia, USA ("Registrar").

 

3 Procedural History

3.1 The Complainant submitted to the World Intellectual Property Organization Arbitration and Mediation Center ("WIPO Center") a Complaint made pursuant to the Uniform Domain Name Dispute Resolution Policy implemented by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, ("Policy"), and under the Rules for Uniform Domain Name Dispute Resolution Policy implemented by ICANN on the same date ("Rules"). The copy of the Complaint submitted by e-mail was received by the WIPO Center on August 8, 2000, and the paper copy of the Complaint submitted by courier was received by the WIPO Center on August 9, 2000. An Acknowledgment of Receipt dated August 11, 2000, was sent by e-mail by the WIPO Center to the Complainant. As confirmed by the case manager on October 25, 2000, the Complainant's representative was contacted by phone for a complaint deficiency, and an amendment to paragraph X of the Complaint was received by fax on August 25, 2000.

3.2 A Request for Registrar Verification was dispatched by the WIPO Center to the Registrar by e-mail on August 25, 2000. The Registrar responded by e-mail to the WIPO Center on August 29, 2000.

3.3 Having verified that the Complaint satisfied the formal requirements of the Uniform Policy and the Uniform Rules, the WIPO Center sent a Notification of Complaint and Commencement of Administrative Proceeding to the Respondent on August 31, 2000.

3.4 No Response was filed by the Respondent. Nevertheless an e-mail by the Complainant’s representative announced on August 11, 2000, that Mr. Eduard Sole, representative of the respondent contacted him to reach an agreement and transfer accordingly the domain name to the Complainant. Therefore a request for suspension of the procedure for 14 days was requested by the Complainant and granted by the WIPO Center on August 14, 2000. After a period had elapsed, on August 24, 2000, the Complainant demanded the procedure to be "re-initiated", as there had not been any transfer of the domain name to the Complainant.

3.5 The WIPO Center proceeded to notify the respondent default on September 21, 2000.

3.6 Subsequent to notification of respondent default, and in accordance with the request in the Complaint, the WIPO Center proceeded to appoint an Administrative Panel composed of a single Panelist, inviting Mario A. Sol Muntañola to act as such on October 12, 2000. Therefrom, a decision shall be provided by this Administrative Panel, absent exceptional circumstances, by October 25, 2000.

3.7 The case before this Administrative Panel is being conducted in the English language. Therefore the language of the decision shall be in English.

 

4 Factual Background

4.1 The Complainant is General Optica, S.A., a company incorporated in 1979 by means of a merge between several companies, that owns 26 Spanish registered trademarks, as well as two European Community Trademarks, three International trademarks and has applied for trademark protection in Chile, Argentina and Andorra. Such trademarks contain the denomination "General Optica". The first trademark is being held since 1970. The Complainant holds the domain name "general-optica.es" since June 20, 1997. General Optica, S.A. operates in the commercial field of lenses and frames for lenses. The Complainant's goodwill, products, services, trade name and trademarks are well known in Spain, having started international expansion outside Spain in 1998, and currently conducting business in several countries.

4.2 The Respondent owns the domain name "generaloptica.com", registered through Network Solutions on January 29, 1999.

 

5 Parties’ Contentions

5.1. The Complaint

5.1.1 The Complainant contends to own 26 Spanish trademarks and several international trademarks for the denomination "General Optica" relevant to this complaint.

5.1.2 The Complainant contends to have been well known in the retailer trade of optical products in Spain for almost twenty years. The mother company of the Group, General Optica Catalana, S.L. was founded in 1958.

5.1.3 The Complainant contends to have expanded its name –identical to its trademark– and business to the rest of Spain in 1978 and to other countries of the world since 1998. And in the last years has increased their advertising campaign as to become the most recognised trademark for optical products in Spain.

5.1.4 The Complainant contends that the trademark "General Optica" is a well known and famous one in Spain identifying the company's trade name, goodwill and services, and that the domain name "generaloptica.com" is identical to the said trademark, all of which leading the Complainant to state it has rights and legitimate interests in the domain name "generaloptica.com".

5.1.5 The Complainant contends that the Respondent has not the official address where NSI data say, but according to the Spanish Commercial Registry in some other place. The given address corresponds to another company called SOLE CREATIVOS, S.L. Such name coincides with Mr. Eduard Sole, the given representative of Respondent in NSI’s data.

5.1.6 The Complainant contends that the Respondent has no rights or legitimate interests in respect of the domain name "generaloptica.com".

5.1.7 Thus the purpose of the Respondent registering the domain name was to attract Internet users to its website or other on-line location for commercial gain, and therefore, impeding the use of the disputed domain by the Complainant.

5.1.8 The Complainant contends that the domain name shall be considered as having been registered and used in bad faith because at the time of registering the domain name, the Respondent did it to create a likelihood of confusion with Complainant’s trademarks as to the source, sponsorship affiliation, or endorsement of the registrant’s website or location or of a product or service on this website or location.

5.2. The Response

The Respondent did not answer the Complaint within the deadline or afterwards.

 

6. Discussion and Findings

6.1 Applicable rules

According to Rule 15 a), the Panel shall decide taking into account the claims and documents presented. And due to both parties having siege and address in Spain, the principles and laws of the Spanish State shall be taken into account (Case D2000-0001 Robert Ellenbogen v. Mike Pearson, D2000-0239 J. Garcнa Carriуn, S.A. v. Maria Josй Catalбn Frias or D2000-0691 Seur, S.A. v. Antonio Llanos).

6.2 Fulfilling of the requirement according to the Policy, Paragraph 4 a)

6.2.1 Domain name identical or confusingly similar to the trademark

a) The identity between the trademarks of the Complainant and the disputed domain name is absolute, having a clear risk of confusion.

b) The trademarks of the Complainant are very well known in the Spanish service sector where it undertakes its activity.

6.2.2 Respondent’s rights or legitimate interests in the Domain Name

a) This panel has visited the site "www.generaloptica.com" and found a page under the title "Optica General de Barcelona" and a text in Catalan language saying "Aquн tindreu una visiу general de la ciutat de barcelona a travйs de les meves imatges". That is, under the domain "generaloptica.com" we found a title of "Optica General" and immediately "visio general"(meaning both "general outlook"). What the Respondent does is to force the words with the result that what appears in the Web Page are some pictures of Barcelona which could be a general outlook of the city but have neither close nor direct connection with the denomination "generaloptica". Therefore, the Respondent has not proved to have any interest or legitimate right in the disputed domain name.

b) The Respondent has not justified any legitimate or fair use or the disputed domain. The domain name is being used for commercial purposes with no relation to the denomination registered.

c) The Respondent has not been known before for the use of such name, has no authorisation or license from the legitimate rights holder of such denomination.

6.2.3 Domain Name registered and used in bad faith

a) To any person residing in Spain or undertaking any business there, it is clear that the disputed domain name can only refer to the Complainant. The very use by someone with no connection with the Complainant, suggests opportunistic bad faith (Case D2000-0163, Veuve Cliquot Ponsardin, Maison Fondйe en 1772 v. The Polygenix Group Co.).

b) There is a clear likelihood of confusion to anyone searching for Complainant in the World Wide Web and ending in the site of Respondent. Moreover, the Respondent has not justified registering such domain name identical to well-known trademarks of Complainant. The only reference in the Respondent Web page to the denomination is a title exchanging the words of Complainant’s trademark, which can not possibly justify such use. Therefore, the Panel concludes that the domain name has been registered and is being used to create likelihood of confusion with Complainant’s trademarks as to the source, sponsorship affiliation, or endorsement of the registrant’s website or location or of a product or service on his website or location. (Cases D2000-0049 Tata sons v. The Advanced Information Technology Association and D2000-0137 Expedia v. European Travel Network)

c) Even though the Respondent by registering the disputed domain name prevents the Complainant from reflecting its trademark in the corresponding top level generic domain, it is also true that each company decides the risk it is prepared to take in its identifying trade signs. The Complainant can register its trademarks in whichever territories thinks fit, leaving the territories unregistered to whichever undertaking does want to register the same trademark for legitimate purpose. In the same way, the Complainant can register the domain names under the different top level domains, generic or country code, depending on its business. Therefore, someone with a legitimate interest in registering such domain name could occupy such space that has not been claimed by the Claimant. Nevertheless, to take advantage of such situation in bad faith will never be accepted as a legal or legitimate action.

 

7. Decision

In view of the above circumstances and facts the Panel decides, that the domain name "generaloptica.com" registered by the Respondent is identical to Complainant's trademarks, that the Respondent has no right or legitimate interest in respect of the domain name, and that the Respondent's domain name has been registered and is being used in bad faith.

Accordingly, pursuant to Paragraph 4(i) of the Policy, the Panel requires that the registration of the domain name "generaloptica.com" be transferred to Complainant.

 


 

Mario A. Sol Muntañola
Sole Panelist

Dated: October 25, 2000

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2000/d2000-0974.html

 

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