WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Promoconcert, S.L. v. Chesterton Holdings
Case No. D2007-0577
1. The Parties
The Complainant is Promoconcert, S.L. of Barcelona, Spain, represented by Jos� Luis Rosillo of Cascante, Spain.
The Respondent is Chesterton Holdings, of Los Angeles, United States of America.
2. The Domain Name and Registrar
The disputed domain name is registered with NameK.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 17, 2007. On May 2, 2007, the Center transmitted by email to NameK a request for registrar verification in connection with the domain name at issue. On May 2, 2007, NameK transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 May 11, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 31, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 5, 2007 .
The Center appointed Alan L. Limbury as the sole panelist in this matter on June 18, 2007. 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
Founded in 1997, the Complainant promotes orchestral and other concerts, including classical music concerts in Madrid and, among other venues, at the Palau de la M�sica in Barcelona. It owns Spanish trademark PROMOCONCERT, No. 2562174, registered on June 1, 2004 in Class 41 for the organization of cultural activities and production of shows.
The disputed domain name was registered on November 30, 2005. After a period of inactivity, in January and April 2007 the domain name resolved to a website promoting links to musicals and other types of shows offered by the Complainant, including links in Spanish to ‘Conciertos En Madrid’, ‘Conciertos Auditorio Madrid’ and ‘Palau De La Musica’. Other links in English related to a wide variety of services unrelated to concerts or shows. There was no website content at the time the Complaint was filed.
5. Parties’ Contentions
A. Complainant
The Complainant seeks the transfer to it of the disputed domain name on the grounds that it is identical to the Complainant’s registered trademark; the Respondent has no rights or legitimate interest in relation to the domain name because it has no corresponding trademark or company name which could justify its use of the domain name and it has not been authorized by the Complainant to use the PROMOCONCERT name or mark; and that the use to which the domain name has been put demonstrates that it was registered and is being used in bad faith with the intention of confusing consumers.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Panel is satisfied that the Complaint was delivered to the Respondent on May 11, 2007 by email and on May 14, 2007 by courier. The Respondent having failed to file a Response, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the Complainant: Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy, WIPO Case No. D2003-0109; SSL International plc v. Mark Freeman, WIPO Case No. D2000-1080 and Alta Vista Company v. Grandtotal Finances Limited et al., WIPO Case No. D2000-0848.
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The top level domain “.com”, is to be disregarded when considering whether the domain name is identical or confusingly similar to the trademark: Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
The domain name is clearly identical to the Complainant’s Spanish registered trademark PROMOCONCERT.
The Complainant has established this element.
B. Rights or Legitimate Interests
The Complainant’s assertions, already set out, are sufficient to constitute a prima facie showing of absence of rights or legitimate interest in the disputed domain name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753.
In the absence of a Response, the Panel finds that the Respondent has no rights or legitimate interest in the domain name.
The Complainant has established this element.
C. Registered and Used in Bad Faith
The only evidence of use of the domain name before the Panel leads to the conclusion that Internet users seeking the Complainant by means of the disputed domain name are likely to be confused into thinking that the Respondent’s web site is associated with the Complainant. The sponsored links available at the Respondent’s web site are of the kind from which it may be expected that the Respondent makes commercial gain.
In the absence of a Response, the Panel finds that the Respondent is using the domain name intentionally to attempt to attract, for commercial gain, Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s mark as to the affiliation of the Respondent’s web site.
Under the Policy, paragraph 4(b)(iv), this finding shall be evidence of both bad faith registration and bad faith use. There is no other evidence to show the purpose for which the domain name was registered. Accordingly, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
The Complainant has established this element.
7. Decision
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 be transferred to the Complainant.
Alan L. Limbury
Sole Panelist
Date: July 2, 2007
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