WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION VORTEX v. Amber Depasquale Case No. D2009-1405 1. The Parties
The Complainant is VORTEX, Paris, France, represented by Cabinet Vittoz, France.
The Respondent is Amber Depasquale, California, United States of America 2. The Domain Name and Registrar
The disputed domain name is registered with R. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 19, 2009. On October 21, 2009, the Center transmitted by email to R a request for registrar verification in connection with the disputed domain name. On October 21, 2009, R 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. The Center sent an email communication to the Complainant on October 23, 2009 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on October 28, 2009. 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”).
Although it does not appear to the Panel that the Respondent received actual notice of the Complaint, the Panel is satisfied that, in accordance with the Rules, paragraphs 2(a) and 4(a), the Center discharged its responsibility to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint, and accordingly the proceedings commenced on October 29, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 18, 2009. The Respondent did not submit any response. Accordingly, the Center gave notice of the Respondent's default on November 25, 2009.
The Center appointed Alan L. Limbury as the sole panelist in this matter on December 2, 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 owns and since 1985 has operated the French radio station Skyrock, specializing in rap & rub music. It owns numerous SKYROCK registered trademarks, most relevantly French registration No. 1358107 dated 10/07/1985 and United States Federal Registration No. 2459012 dated 22/01/1999. It also owns certain SKYROCK composite marks, such as the French registrations SYKROCKCHAT, SKYROCKDIRECT, SKYROCKMESSENGER and SKYROCKDATA.
The disputed domain name was registered on September 22, 2005. It leads to a website entitled SKYROCK ENTERTAINMENT, on which the word SKYROCK is used alone or in combination with descriptive words, such as SKYROCK ENTERTAINMENT, SKYROCK SATELLITE RADIO, SKYROCK UPDATES and SKYROCK ENVIRONMENTAL. 5. Parties' Contentions A. Complainant
The disputed domain name is confusingly similar to the Complainant's SKYROCK mark, the letters “ent” being an obvious abbreviation for entertainment. The Respondent's website is confusingly similar to the Complainant's website at “”. Both propose entertainment services in the field of rap & rub music.
The Respondent has no rights or legitimate interest in the disputed domain name. The Complainant has not authorised the Respondent to incorporate its very well known SKYROCK mark in a domain name.
The disputed domain name was registered and is being used in bad faith. The Respondent could not have been unaware of the Complainant's mark when registering the disputed domain name, which is being used to offer the same services as the Complainant offers on its website at . B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
To qualify for cancellation or transfer, a Complainant must prove each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name 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; and
(ii) the disputed domain name has been registered and is being used in bad faith.
A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, 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. A. Identical or Confusingly Similar
The test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone: Wal-Mart Stores, Inc. v. Traffic Yoon,WIPO Case No. D2006-0812. The top level domains “.com”, “.net” and “org” are to be disregarded: 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. Likewise the content of the Respondent's website must be disregarded: A&F Trade Mark, Inc. and Abercrombie & Fitch Stores, Inc v. Justin Jorgenson, WIPO Case No. D2001-0900.
Confusion in this context, in the sense of bewilderment or failing to distinguish between things, may be regarded as a state of wondering whether there is an association, rather than a state of erroneously believing that there is one. An appropriate formulation might be: “Is it likely that, because of the similarity between the domain name on the one hand and the Complainant's trademark on the other hand, people will wonder whether the domain name is associated in some way with the Complainant?”: SANOFI-AVENTIS v. Jason Trevenio,WIPO Case No. D2007-0648.
The disputed domain name wholly incorporates the Complainant's well known mark SKYROCK. The suffix “ent” is likely to be understood as an abbreviation for the word ENTERTAINMENT, a word descriptive of the Complainant's business, and is insufficient to distinguish the domain name from the mark. Hence the Panel finds the disputed domain name to be confusingly similar to the Complainant's SKYROCK mark.
The Complainant has established this element. B. Rights or Legitimate Interests
The Panel accepts that the Complainant's SKYROCK mark is distinctive and well known. The Complainant's assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests, 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 the cases there cited. The Respondent has made no attempt to do so.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant has established this element. C. Registered and Used in Bad Faith
The evidence as to the use to which the disputed domain name is being put satisfies the Panel that by using the domain name, the Respondent has intentionally attempted 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 or of a product or service on its website. Under the Policy, paragraph 4(b)(iv), this is evidence of both bad faith use and bad faith registration for the purposes of paragraph 4(a)(iii). In the absence of any other evidence as to the state of mind of the Respondent at the time of registration, such as might outweigh the evidence afforded by the operation of paragraph 4(b)(iv), see Viz Communications, Inc., v. Redsun dba and David Penava, WIPO Case No. D2000-0905, the Panel finds that the disputed domain name was registered and is being used 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 Limbury
Sole Panelist
Dated: December 23, 2009
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