WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
7comm v. swazo apotheken
Case No. D2002-1075
1. The Parties
The Complainant is 7comm, Rua Sao Sebastiao, Sao Paulo, Brazil, of Brazil, represented by Onvolite Inc., of United States of America.
The Respondent is swazo apotheken, Oxford Rd., Harare, Avondale, Zimbabwe, of Zimbabwe.
2. The Domain Name and Registrar
The disputed Domain Name is registered with I.D.R. Internet Domain Registry Ltd., POB 1057, 12 Hasharon Way, Kfar Saba 44110, Israel.
3. Procedural History
3.1. The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 21, 2002. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 9, 2003. On January 9, 2003, the Center transmitted by email to I.D.R. Internet Domain Registry Ltd., a request for registrar verification in connection with the domain name at issue. On January 9, 2003, the registrar 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 contacts. The Center verified that the Complaint together with the amendment to 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").
3.2. 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 December 2, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was December 22, 2002. The Respondent did not submit a formal response by that date. Accordingly, the Center notified the Respondent�s default on December 25, 2002. On December 26, 2002, the Center received by email an informal reply from Respondent setting out certain statements and contentions. On December 27, 2002, the Center informed Respondent by email that its submission would be sent to the Administrative Panel.
3.3. The Center appointed Dr Clive Trotman as the sole panelist in this matter on January 9, 2003. 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
4.1. Complainant holds a Brazilian registered trademark number 815918437 comprising the sole word "Apotheke". The trademark was applied for on December 28, 1990, and promulgated on August 25, 1992.
4.2. Respondent is Registrant of the disputed Domain Name .
5. Parties� Contentions
A. Complainant
5.1. The disputed Domain Name registered by Respondent is confusingly similar to Complainant's trademark "apotheke".
5.2. The Respondent does not have rights or legitimate interests in respect of the disputed Domain Name and does not plan to use it in connection with a bona fide offering of goods or services, but only wishes to sell it.
5.3. The disputed Domain Name was registered and is being used in bad faith. Respondent has advertised the Domain Name for sale on a website for $US50,000 and offered by telephone to sell it to the Complainant.
5.4. The remedy requested by Complainant is for the disputed Domain Name to be transferred to the Complainant.
B. Respondent
5.5. No formal Response has been timely filed by Respondent. However an informal reply from Respondent was received by the Center by email on December 26, 2002, and the contents of this have been taken into consideration during the Panel's deliberations as discussed below.
6. Discussion and Findings
Jurisdiction of Administrative Panel
6.1. Paragraph 4(a) of the Policy states:
"You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts to the applicable Provider, in compliance with the Rules of Procedure, that:
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith."
6.2. Complainant has made the relevant assertions as above. This dispute is properly within the scope of the Policy and the Administrative Panel has jurisdiction to decide the dispute.
6.3. The email sent from the address of the Respondent on December 26, 2002, was sent to the Center and addressed, "To whom it may concerns" (sic). In accordance with Rules 15(a) the Panel has decided to take the Respondent's communication into account.
Whether the Domain Name is Identical or Confusingly Similar to a Trademark
6.4. The disputed Domain Name , after disregarding the TLD suffix , differs from Complainant's trademark "apotheke" only by the addition of a terminal letter "n". Respondent's communication states that, "it is true that we only registered this domain because it is very likely that many people will mix up "apotheken" instead of "apotheke" ... ". Clearly Respondent intended the disputed Domain Name to be confusingly similar to Complainant's trademark and knew that it would be so. The Panel finds for Complainant in terms of Paragraph 4(a)(i) of the Policy.
Whether Respondent Has Rights or Legitimate Interests in Respect of the Domain Name
6.5. Complainant must prove that Respondent has no rights or legitimate interests in respect of the disputed Domain Name. Since this requires the proving of a negative, Complainant may normally be expected to make out a prima facie case to that effect, establishing on the basis of reasonable enquiry that Respondent at least does not appear to have any of the defenses provided for in Paragraph 4(c) of the Policy and that, for instance, the name swazo apotheken given as Registrant is not a name by which Respondent is commonly known. Respondent's communication states, however, "we don't claim any rights on that domain. We registered it in the hope that the owner of would buy it from us." That is plain enough and the Panel finds for Complainant under Paragraph 4(a)(ii) of the Policy.
Whether the Domain Name Has Been Registered and Is Being Used in Bad Faith
6.6. Paragraph 4(a)(iii) of the Policy requires Complainant to prove that the Domain Name has been registered and is being used in bad faith. Paragraph 4(b) lists four circumstances, without limitation, that shall be evidence of the registration and use of a Domain Name in bad faith. Of these, Paragraph 4(b)(i) provides for a finding of bad faith in:
"circumstances indicating that you have registered or you have 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 your documented out-of-pocket costs directly related to the domain name;"
6.7. Complainant certifies that Respondent offered by telephone to sell the disputed Domain Name to Complainant for $US50,000. Evidence in the form of a screen print shows the Domain Name offered for sale in the same amount from a website with enquiries to be sent to domainsales@. Respondent's communication to the Center states, "We registered it in the hope that the owner of would buy it from us. Indeed we offered him that domain for 50,000 dollars but instead of paying the money he simply filed this WIPO case", and later that, "... we only wanted to make a share of money! They are very rich so 50,000 Dollars won't harm them!". Later still the Respondent's communication says, "I make a last offer to the [Complainant]: Pay 25,000 US Dollars and I give you the authorization code!". The Panel finds bad faith clearly proven in the terms of Paragraph 4(b)(i) of the Policy.
6.8. In summary, as concluded in 6.4 above the disputed Domain Name is confusingly similar to Complainant's trademark and Complainant succeeds under Paragraph 4(a)(i) of the Policy. As concluded in 6.5 above, Respondent has no rights or legitimate interests in the Domain Name and Complainant succeeds under Paragraph 4(a)(ii) of the Policy. As concluded in 6.7 above, Respondent has registered and is using the Domain Name in bad faith and Complainant succeeds under Paragraph 4(a)(iii) of the Policy. The Complainant has proven all three elements required by Paragraph 4(a) of the Uniform Policy and the Administrative Panel decides for the Complainant.
7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(a) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to the Complainant.
Dr. Clive N. A. Trotman
Sole Panelist
Date: January 28, 2003
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