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and Mediation Center
Cyber Currнculum Vitae, S.L. v. ActiveIdeas.com
Case No. D2006-0830
1. The Parties
The Complainant is Cyber Currнculum Vitae, S.L. of Barcelona, Spain represented by Landwell, PricewaterhouseCoopers, Spain.
The Respondent is ActiveIdeas.com of United States of America.
2. The Domain Name and Registrar
The disputed domain name <cybercv.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 29, 2006. On June 30, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On July 4, 2006 and July 18, 2006, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 19, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 8, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 9, 2006.
The Center appointed The Honourable Neil Anthony Brown
QC as the sole panelist in this matter on August 17, 2006. 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.
4. Factual Background
The Complainant is a company incorporated under the laws of Spain and operating in management consulting and related fields, including the preparation and publication of resumes or CVs. It was incorporated on December 11, 2003. In order to undertake its activities, it has registered two trademarks in the Spanish Patent and Trademark Office, which are as follows:
(a) Trademark No.2608876, registered on July 20, 2004 for CYBER CV; and
(b) Trademark No.2660343, registered on June 20, 2005 for CYBER CV.
It has also registered several domain names such as “www.cybercv.net”
The Respondent registered the domain name <cybercv.com>
on June 23, 2005.
5. Parties’ Contentions
The Complainant alleges that the disputed domain name <cybercv.com> should no longer be registered with the Respondent but that it should be transferred to the Complainant.
It contends that this should be done because, within the meaning of paragraph 4 of the Policy, the domain name is identical or confusingly similar to the Complainant’s registered Spanish trademarks, that the Respondent has no rights or legitimate interests in the domain name and that the domain name has been registered and subsequently used in bad faith. The Complainant maintains that it can prove all three of these requirements and that the appropriate remedy is to transfer the domain name to the Complainant.
In support of its case on the first of these three elements, the Complainant relies on the registered trademarks CYBER CV to which reference has already been made. It then contends that it is self-evident that the domain name <cybercv.com> is identical to the CYBER CV marks.
The Complainant then contends, to establish the second element, that the Respondent has no rights or interests in the domain name because the facts show that the Respondent does not hold the registration of any trademarks that might show a legitimate interest in the domain name, it is not authorized to use the trademark in a domain name or in any other way, is not known by the domain name and is not using it for any legitimate purpose. Nor, the Complainant contends, could the Respondent bring itself within the requirements of any of the provisions of paragraph 4 (c) of the Policy.
Finally, the Complainant contends that the domain name was registered and is being used in bad faith. It contends that this is so because it is clear that the Respondent’s intention in registering the domain name was and remains to extract money from the Complainant for the transfer of the domain name. The evidence of this, the Complainant contends, is that the domain name is for sale on “www.sedo.com” and that this brings the Respondent within the provisions of paragraph 4(b)(i).
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
Paragraph 15 of the Rules provides that the Panel is to decide the complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In that regard, the Panel also notes that the fact that the Respondent has not made a submission does not avoid the necessity of examining the issues and of doing so in the light of the evidence. The onus remains on the Complainant to make out its case and past UDRP panels have said many times that despite the absence of a submission from a respondent, a complainant must nevertheless show that all three elements of the Policy have been made out before any order can be made to transfer a domain name.
However, as the Panel will illustrate later, it is possible to draw inferences from the evidence that has been submitted and in some cases from silence. Indeed, Paragraph 14 of the Rules incorporates both of those notions into the procedures of the Panel.
The Panel therefore turns to discuss the various issues that arise for decision on the facts as they are known.
For the Complainant to succeed it must prove, within the meaning of Paragraph 4(a) of the Policy, that:
A. The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
B. The Respondent has no rights or legitimate interests in respect of the domain name; and
C. The domain name has been registered and is being used in bad faith.
It is to be noted that paragraph 4 of the Policy provides that the Complainant must prove that each of the three elements is present. The Panel will therefore deal with each of these requirements in turn.
A. Identical or Confusingly Similar
The Panel finds that the domain name is identical to the two Spanish trademarks
referred to above and in which the Complainant has rights. This is so because
the domain name consists of the entirety of the trademarks and the spelling
and appearance of the two expressions are the same. For this purpose, the gap
appearing in the trademark is to be disregarded as it must be to make a true
comparison, as domain names cannot contain such a gap. Moreover, the Generic
Top Level Domain suffix ‘. com’ in the domain name must be disregarded,
for it has long been held that this addition cannot avoid the conclusion of
identically or confusing similarity: Foundation Le Corbusier v. Mercado M,
WIPO Case No.D2004-0723.
Accordingly, the Complainant has made out the first of the three elements that it must prove.
B. Rights or Legitimate Interests
Under paragraph 4(a)(ii), the Complainant has the burden of establishing that the Respondent has no rights or legitimate interests in respect of the domain name.
But by virtue of paragraph 4(c) of the Policy, it is open to a respondent to establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
“(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
Thus, if the Respondent proves any of these elements or indeed anything else that shows it has a right or interest in the domain name, the Complainant will have failed to discharge its onus and the complaint will fail.
The Panel’s task in deciding if a registrant has any rights or legitimate interests in a domain name is made more difficult when the registrant is in default and does not make a Response or any other form of submission. The Respondent in the present case was given notice that it had until August 8, 2006, to send in its Response, that it would be in default if it did not do so and that, by virtue of Paragraph 14 of the Rules, the Panel might draw appropriate inferences from that default.
As the Respondent is in default, the Panel, after considering all of the evidence in the Complaint and the exhibits attached to it, draws the inference that the Respondent has no rights or legitimate interests in the domain name. It is appropriate to draw that inference because, first, if the Respondent had any such rights or interests, it was a simple matter to say what they were. Moreover, the evidence shows that the Respondent does not hold the registration of any trademarks that might show a legitimate interest in the domain name, it is not authorized to use the trademark in a domain name or in any other way, is not known by the domain name and is not using it for any legitimate purpose. In addition, the evidence is that Article 34 of the Spanish Trademark Act gives to the titleholder of a trademark the exclusive use of the mark. As the Complainant has not given any permission to the Respondent to use its mark in a domain name, its use by the Respondent for this purpose must be an illegitimate one.
Furthermore, the Respondent had the opportunity to bring itself within paragraph 4(c) of the Policy which sets out several criteria, any one of which, if proved, ‘is to be taken to demonstrate’ the registrant’s rights or legitimate interests in the domain name. However, the Respondent has not endeavoured to establish even one of the criteria set out in Paragraph 4(c), giving rise to the inevitable inference that he could not do so by credible evidence.
In the absence of such material, the Panel is entitled to draw inferences adverse
to the Respondent’s interests on these issues and to assume that ‘any
evidence of the Respondent would not have been in [its] favour’: Pharmacia
& Upjohn AB v. Dario H. Romero, WIPO
Case No. D2000-1273.
All of these facts support the conclusion that the Respondent has no rights or legitimate interests in the domain name.
It is also apparent to the Panel, as the Complainant submits, that even if the Respondent had tried to bring itself within any of the above criteria, it would not have been able to do so. It cannot on the evidence be said to have been making a bona fide offering of goods or services, it clearly is not known by the domain name and it cannot be a legitimate noncommercial or fair use of the domain name to register it a few days after the Complainant registered the second of its trademarks and then to put the domain name up for sale on the Internet.
Moreover, from Document 6 annexed to the Complaint it can be seen that at one stage the Respondent had used the website to which the disputed domain name resolves, to provide links to business rivals of the Complainant. Such conduct cannot confer legitimacy on the Respondent in respect of the domain name.
This conclusion is supported by the UDRP decisions that the Complainant has
cited; i.e. Freedom Flag Inc. dba Falls Flag & Banner Co. v. Flags
Unlimited, WIPO Case No.D2002-0478
and Ross-Simons Inc. v. Pirro Betenson, WIPO
Case No. D2003-0137.
For all of these reasons the Complainant has shown that the Respondent has no rights or legitimate interests in the domain name and the Complainant has therefore made out the second of the three elements that it must prove.
C. Registered and Used in Bad Faith
The Complainant must prove on the balance of probabilities both that the domain
name was registered in bad faith and that it is being used in bad faith: Telstra
Corporation Limited v. Nuclear Marshmallows, WIPO
Case No. D2000-0003.
Further guidance on how to implement this requirement is to be found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is evidence of the registration and use of a domain name in bad faith, although other circumstances may also be relied on, as the four circumstances are not exclusive. The four specified circumstances are:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.
The Complainant relies on paragraph 4(b)(i) of the Policy. The Panel accepts
that the evidence brings this case within that provision, both with respect
to registration and use. The starting point must be the remarkable co-incidence
between the date when the Complainant registered its second trademark, July
20, 2005, and the date when the Respondent registered the domain name, July
23, 2005. The conclusion, in the absence of any explanation to the contrary
from the Respondent, must be that the Respondent became aware of the registration
of the trademark and registered the domain name to extract as much financial
benefit from this act as it could. Such a view is re-enforced by the fact that
the Respondent, since registration, has used the domain name only to display
links on its website for which it must be assumed it has been paid. Moreover,
it has then proceeded to advertise the domain name for sale on “www.sedo.com”,
as is shown by Documents 8 and 9 attached to the Complaint.
Nor is this the first time that the Respondent has engaged in such activity,
for in two other UDRP proceedings, bad faith was found against the Respondent
and transfer of the domain name was ordered: QVC and ER Marks, Inc v. ActiveIdeas.com
Inc., WIPO Case No.2005-1303 and Patelco
Credit Union v. ActiveIdeas.com Inc., WIPO
Case No. D2005-1295.
Accordingly, the Complainant has established bad faith on the part of the Respondent
within the meaning of paragraph 4(b)(i) of the Policy, both with respect to
the registration and use of the domain name and has accordingly made out the
third of the three elements that it must prove.
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 <cybercv.com>be transferred to the Complainant.
The Honourable Neil Anthony Brown QC
Date: August 23, 2006