WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION CONSEJERÍA DE SANIDAD DE LA COMUNIDAD DE MADRID v. Temporarily assigned to Eurobox Ltd. / HOSPITALDELSURESTE, DP Manager eurobox@ Case No. D2008-1703 1. The Parties
The Complainant is CONSEJERÍA DE SANIDAD DE LA COMUNIDAD DE MADRID, of Madrid, Spain, represented by Herrero & Asociados, Spain.
The Respondent is temporarily assigned to Eurobox Ltd. / HOSPITALDELSURESTE, DP Manager eurobox@, of St. Petersburg, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with NicReg LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 6, 2008. On November 7, 2008, the Center transmitted by email to NicReg LLC a request for registrar verification in connection with the disputed domain name. On November 17, 2008, and after the Center had sent it numerous reminders, NicReg LLC transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on November 19, 2008. 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” or “UDRP”), 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 November 19, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 9, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 12, 2008.
The Center appointed Rodrigo Velasco Santelices as the sole panelist in this matter on December 30, 2008. 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 public establishment Hospital del Sureste is a public entity created by law, and dependent of the Consejería de Sanidad de la Comunidad de Madrid, in accordance with article 12 of the law 4/2006 dated December 22, 2006.
The Hospital del Sureste was inaugurated on February 28, 2008 but its existence was announced two years before such date.
Consejería de Sanidad de la Comunidad de Madrid is the owner of the trademark HOSPITAL DEL SURESTE N° 2.804.901 in classes 41 and 44.
The Respondent registered the domain name on September 27, 2007.
The Complainant contacted the Respondent in four opportunities, i.e. on March 5, 2008, March 11, 2008, April 14, 2008 and May 12, 2008. No response was received from the Respondent. 5. Parties' Contentions A. Complainant
The Complainant states that Hospital del Sureste is directly bounded to the principles regarding the health politic established by the Consejería de Sanidad de la Comunidad de Madrid and therefore in accordance with article 12 of the law 4/2006 dated December 22, 2006 is directly dependent of this Consejería.
The Complainant is the owner of the Spanish trademark registration HOSPITAL DEL SURESTE. The Complainant has submitted a copy of the registration certificate in respect of the above-referenced registered trademark.
The Complainant contends that the Respondent has no rights or legitimate interests in the domain name, as it is not using the domain name for a bona fide offering of goods or services.
The Complainant states that it contacted the Respondent in four opportunities, i.e., on March 5, 2008, March 11, 2008, April 14, 2008 and May 12, 2008. No response was received from the Respondent. However, once the letters were sent to the Respondent the website was evidently modified.
The Complainant states that Respondent has been using the domain name in bad faith, evidenced by the fact that the website corresponding to the domain name was used to post notices to contact it directly, most probably seeking the sale of the domain name, and that once the cease and desist letters were sent, the website was evidently modified and the notices removed, leaving it inactive.
The Complainant states that the Respondent has registered the domain name in bad faith, evidenced by the Respondent's past pattern of registering domain names belonging to other trademark holders for the purpose of selling the domain names back to these trademark holders. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In accordance with Paragraph 4(a) of the Policy, the Complainant must prove that each of the three elements is present:
(i) 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
(ii) the Respondent has no rights or legitimate interests in respect of the domain name in question; and
(iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
This first element requires that the Complainant demonstrates that (1) it has trademark rights and (2) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
The Panel finds that the Complainant has established that it is the owner of the registered trademark HOSPITAL DEL SURESTE based on the evidence provided in the Complaint.
The Panel therefore finds that the disputed domain name is identical to the Complainant's trademark. B. Rights or Legitimate Interests
The second element requires the Complainant to prove that the Respondent has no rights or legitimate interests in respect of the domain name in question.
The Complainant has stated in accordance with the evidence provided that the disputed domain name's website originally contained a form in case an Internet user was interested in contacting the domain name owner. The Complainant then provided evidence that once the cease and desist letters were sent to the Respondent the mentioned website became blank.
The Complainant claims that the domain name was primarily acquired for the purpose of intentionally attempting to attract for commercial gain Internet users to the Respondent's webpage by creating a likelihood of confusion with the Complainant's trademark.
The Complainant finally claims that the Respondent makes no legitimate non commercial or fair use of the domain name and therefore has no legitimate interest in the domain name.
The Respondent has not provided a response to the allegations set forth by the Complainant, though given the opportunity.
There is no evidence in the case file demonstrating that the Respondent might have rights or legitimate interest in the domain name.
The Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the domain name. In as much as the Respondent has not replied to these contentions, the Panel finds that the Respondent has failed to meet the burden of proof shifted to it, that it does have rights or legitimate interests. Therefore the Panel finds for the Complainant under the second element of the Policy. C. Registered and Used in Bad Faith
This third element requires that the Complainant demonstrates that (1) the domain name has been registered in bad faith and (2) is being used in bad faith.
Paragraph 4(b) of the Policy sets out a non-exhaustive list of circumstances which if found by the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.
The disputed domain name is identical to the Complainant's trademark. It is difficult to believe that this is a mere coincidence, especially taking into consideration that the mentioned domain name in Spanish refers to a hospital created by law and dependant of a governmental organization in Spain, therefore one can reasonably conclude that the Respondent had knowledge of the existence of the trademark and that it pertained to the Complainant, demonstrating bad faith registration.
The above can only lead the Panel to conclude that the Respondent's intention was to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website.
Moreover, the Complainant sent a cease and desist letter to the Respondent requesting the transfer of the domain name and the cease of use of the trademark. However, to date the Respondent did not respond to the Complainant's petition.
Finally the Panel considers that the Respondent has engaged in a pattern or behavior in order to prevent the owner of the trademark from reflecting the mark in a corresponding domain name after having reviewed past UDRP cases where this same Respondent has reiterated such conduct.
The fact that the domain name does not currently resolve to an active website does not affect the Panel's finding.
Therefore, in accordance with paragraph 4(b)(iii) and (iv) of the Policy, the above findings lead to the conclusion that the domain name in dispute has been registered and used in bad faith. 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.
Rodrigo Velasco Santelices
Sole Panelist
Dated: January 13, 2009
Full & Egal Universal Law Academy