WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Camargo Corrêa S/A v. Belize Domain WHOIS Service Lt Case No. D2009-0348 1. The Parties
The Complainant is Camargo Corrêa SA of São Paulo, Brazil, represented by Patricia Peck Pinheiro Advogados, Brazil.
The Respondent is Belize Domain WHOIS Service Lt of Wisconsin, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with Intercosmos Media Group d/b/a directNIC.com. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 16, 2009. On March 17, 2009, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the disputed domain name. On March 17, 2009, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details of the registrant for the disputed domain name. The Center verified that 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 April 20, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was May 10, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 11, 2009.
The Center appointed Francine Tan as the sole panelist in this matter on May 22, 2009. 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 well-known Brazilian industrial and economical group registered under Brazilian laws and operates under the trade mark CAMARGO CORRÊA.
The Camargo Corrêa Group has its origin in the year of 1939, in São Paulo State country side, and was founded by Sebastian Camargo. Today Camargo Corrêa is an internationally recognized group, operating in over than 20 countries and employing more than 57,000 people. Today, its areas of focus are, inter alia, engineering and construction, cement, footwear, textiles and steel. Camargo Corrêa's gross revenue was more than US$ 7.5 billion in 2007.
The Complainant communicates with many of its customers, clients and suppliers via its website at “www..br”. The Complainant asserts that over the years, the Camargo Corrêa group has developed a reputation for excellence at business conduct and quality in customer services.
The Complainant has a Brazilian trademark registration for CAMARGO CORREA dating from 1982 which it has been consistently using through the years in respect of its goods and/or services. The Complainant asserts that the CAMARGO CORREA trade mark is well known, there having been extensive advertising targeted at both the general public as well as construction companies. “Camargo Corrêa” has also, since 1939, been the Complainant's trade name.
The Complainant discovered that the disputed domain was registered by the Respondent which does not have any connection with the trade mark CAMARGO CORREA. 5. Parties' Contentions A. Complainant
The Complainant contends that:
(i) The disputed domain name is identical or confusingly similar to a trade mark or service mark in which it has rights.
(ii) The Respondent has no rights or legitimate interests in respect of the domain name.
Firstly, there is no evidence that the Respondent uses the disputed domain name in connection with a bona fide offering of goods or services. Secondly, no right was extended to the Respondent to use the trade mark CAMARGO CORREA. In fact, the Respondent uses the disputed domain name to profit from sponsored links, benefiting from the diversion of the Complainant's customers or potential customers searching for the Complainant's services and products.
(iii) The domain name was registered and is being used in bad faith.
In this regard, the Complainant submits that the disputed domain name should be considered as having been registered and is used in bad faith by the Respondent because the latter is a known cybersquatter. Previous WIPO UDRP panelists have found bad faith use and registration of domain names on the part of the Respondent in many other domain name dispute proceedings. For instance, in Fredericia Furniture A/S v. Belize Domain Whois Service Lt,WIPO Case No. D2007-1515, the Panel observed “that the Respondent has been involved in numerous proceedings within the last months, where it has been systematically found in bad faith in similar circumstances. See decisions: Fat Face Holdings Ltd v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0626 (transfer), TV Globo Ltda. v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0714 (transfer), Above All Advertising Inc. v. Belize Domain Whois Service Lt, WIPO Case No. D2007-0775 (transfer), Scandic Hotels AB v. Great Camanoe Investments Ltd / Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0813 (transfer), Madison Square Garden L.P., Radio City Trademarks, LLC v. Great Camanoe Investments Ltd / Belize Domain Names Whois Service Lt, WIPO Case No. D2007-0819 (transfer), The Sans Institute v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0881 (transfer), Natura Cosméticos S.A., Industria e Comércio de Cosméticos Natura Ltda. v. Belize Domain Whois Service Lt, WIPO Case No. D2007-1165 (transfer), Frontier Distribution LLC v. Belize Domain WHOIS Service Lt., WIPO Case No. D2007-1203 (transfer), Moen Incorporated v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-1253 (transfer), Kforce Inc. v. Belize Domain Whois Service Lt., WIPO Case No. D2007-1317 (transfer).”
The Respondent owns over 125,773 domain names and the circumstances are indicative of the fact that the Respondent has not registered the disputed domain name for the purpose of offering its own products or services, but for the purpose of selling the disputed domain name to the Complainant or using it to profit from sponsored links that the Complainant's customers will see when searching for the Complainant's products and services. In other words, the Respondent is using the disputed domain name intentionally to attempt to attract, for commercial gain, Internet users to the 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 Respondent's web site or location. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under the Policy, the Complainant must prove that:
(i) the domain name is identical or confusingly similar to a trade mark or service mark in which it has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
There is no doubt in this case that the disputed domain name is identical to the Complainant's trade mark CAMARGO CORREA in which it has rights. In past UDRP decisions, the fact that the disputed domain name contains the top-level domain “.com” has been found to be irrelevant.
The Panel accordingly finds that paragraph 4(a)(i) of the Policy has been established. B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, a respondent may establish its rights or legitimate interests in the disputed domain name by showing any of the following elements:
(i) before any notice to you [the 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 [the Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trade mark or service mark rights; or
(iii) you [the 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 trade mark or service mark at issue.
In this case, there is no evidence upon which the Panel can make a finding that the Respondent has rights or legitimate interests in the disputed domain name. There is no evidence that the Respondent is or was commonly known by the disputed domain name. Neither is there evidence that the Respondent is making a legitimate non-commercial or fair use of the disputed domain name. On the contrary, there is prima facie evidence which points to a pattern of cybersquatting on the Respondent's part. The Respondent would be in the best position to proffer evidence that it has legitimate interests or rights in the disputed domain name but in failing to submit a response with evidence contradicting the Complainant's claim, the Panel is unable to make a finding other than that the Respondent has no rights or legitimate interests in the domain name.
The Panel accordingly finds that paragraph 4(a)(ii) of the Policy has been established. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the domain name in bad faith, namely:
(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 the 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 names in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the 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, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's website or other on-line locations, 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 locations or of a product.
The facts in this case appear to fall squarely within the circumstances set out in paragraph 4(b)(ii) and (iv) of the Policy. The disputed domain name consists entirely of the Complainant's distinctive trade mark. One can infer from the facts that the Respondent knew or must have known the Complainant's trade name and trade mark CAMARGO CORREA. This cannot be an instance of pure coincidence and on a balance of probabilities, one can surmise that the Respondent deliberately registered the disputed domain name for the purpose of benefiting from the reputation and goodwill that is attached to that name and trade mark. This way, the Respondent would be able to attract Internet users and customers of the Complainant to the Respondent's website. There is no evidence that the Respondent is using the disputed domain name other than for the purposes of profiting from the sponsored links and advertisements. The Panel also draws a negative inference from the Respondent's past pattern of cybersquatting in arriving at its conclusion in this case that the disputed domain name has been registered and is being used in bad faith.
The Panel accordingly finds that paragraph 4(a)(iii) of the Policy has been established. 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.
Francine Tan
Sole Panelist
Dated: June 1, 2009
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