WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Solred, S.A. v. Jordi Vila, Mertron Land S.L. Case No. D2009-1549 1. The Parties
The Complainant is Solred of Madrid, Spain, internally represented.
The Respondent is Jordi Vila, Mertron Land S.L. of Barcelona, Spain. 2. The Domain Name and Registrar
The disputed domain name registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 18, 2009. On November 19, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On November 19, 2009, eNom 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” 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 25, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was December 15, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 16, 2009.
The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on December 29, 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 company totally owned by the group Repsol YPF, S.A., a leading oil, chemical and gas company with main offices in Spain. The Complainant manages a payment system called “Solred” for paying goods such as fuel, gas and any other item that may be found in the shops of Repsol's gas stations.
From the evidence submitted by the Complainant, as annexes to the Complaint, the Complainant is the proprietor of numerous trademarks containing the expression “solred” itself or accompanied by other terms and whose essential part of those trademarks appears to be the term “solred”. Such registrations are located in Spain, Europe, numerous countries of South America and Mexico, therefore it is worldwide registered.
Likewise, the Complainant has submitted enough evidence to this Panel to qualify the trademark SOLRED as famous or well-known in Spain, where the Respondent has its domicile.
The Respondent is the current registrant of the disputed domain name which directs the users to a pornographic website named “Tias L”.
The Respondent became the Registrant of the disputed domain name on September 15, 2008. 5. Parties' Contentions A. Complainant
The Complainant claims that the disputed domain name is identical to the Complainant's trademark SOLRED.
In respect the Respondent's lack of legitimate rights and interests over the disputed domain name, the Complainant makes its case on the following grounds: the Respondent is not making a bona fide offering of goods before the notice of the dispute, and has never been known by “solred”; further, alleges that the Respondent's intent to tarnish the trademark of the Complainant relies on the fact that the disputed domain name resolves automatically to a pornographic website and, finally asserts that the Respondent has not been authorized by the Complainant to use the trademark SOLRED.
In respect the registration of the domain name the Complainant considers that the Respondent knew of the existence and identitiy of the Complainant's trademark when registering the domain name.
Finally, the Complainant asserts that the use in bad faith is considered on the following grounds: first, the use of a domain name to offer sexually explicit and pornographic material is prima facie evidence of tarnishment and second, the Respondent is taking gain by taking advantage of a well-known mark such as the Complainant's SOLRED mark since the website “Tias L” offers services to be paid by credit card. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In order for a panel to decide to grant the remedy of transfer of a domain name to a complainant under the Policy it is necessary that the complainant prove, as required by Paragraph 4(a) of the Policy, that:
(i) the contested domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(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.
The fact that the Respondent has not provided a Response to the Complaint does not relieve the Complainant of the burden of proving its case. In the absence of a Response, Paragraph 5(e) of the Rules expressly requires the Panel to “decide the dispute based upon the complaint”. Under Paragraph 14(a) of the Rules in the event of such a “default” the Panel is still required “to proceed with a decision on the complaint”, whilst under Paragraph 14(b) it “shall draw such inferences there from as it considers appropriate”. This dispute resolution procedure is accepted by the domain name registrant as a condition of registration. Therefore, a registrant should not gain any evidentiary benefit from its failure to participate.
Thus, where a party fails to present evidence in its control, the Panel may draw adverse inferences regarding those facts. (Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques,WIPO Case No. D2000-0004; State of Wisconsin v. Pro-Life Domains, Inc.,WIPO Case No. D2003-0432). Here, the Respondent has defaulted, and it is appropriate in the present case for the Panel to accept the facts asserted by the Complainant and to draw adverse inferences of fact against the Respondent. A. Identical or Confusingly Similar
The Complainant has made continuous use of its registered and incontestable trademark, SOLRED, even before it was first registered in Spain in 1994 and later in 2000 in several other jurisdictions in America and Europe thus, has spent much time, money and effort promoting the trademark in these countries and has established significant goodwill.
The disputed domain name incorporates Complainant's entire trademark so the disputed domain name is therefore identical to the Complainant's registered and incontestable trademark.
The Panel therefore concludes that the Complainant has satisfied the requirements of Paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel finds that the Complainant has made a prima facie showing that Respondent does not have rights or legitimate interests in the domain name within the meaning of Paragraph 4(a) of the Policy.
This finding is based on the following, non-disputed, circumstances brought forward by Complainant.
There is no indication in the file that the Respondent is commonly known under the disputed domain name.
The Respondent is not the owner of any trademark.
The Respondent is using the domain name to tarnish the Complainant's trademark when directing the disputed domain name to “Tias L”, a pornographic website.
Furthermore, the Respondent has not provided evidence of circumstances of the type specified in Paragraph 4(c) of the Policy, or any other circumstances giving rise to a right or legitimate interest in the domain name.
Under these circumstances, the Panel takes the view that the Respondent has no rights or legitimate interests in the domain name and that the requirement of Paragraph (4)(a)(ii) of the Policy is also satisfied. C. Registered and Used in Bad Faith
The Panel considers that the Respondent's action demonstrate that it registered and use the disputed domain name in bad faith in terms of Paragraph (4)(b)(iv) of the Policy.
The Panel has considered Complainant's assertion and evidence with regard to the Respondent's registration and use of the domain name in bad faith. By not submitting a response, the Respondent has failed to invoke any circumstances that could demonstrate that it did not register and use the domain name in bad faith.
Therefore, in the absence of any response from the Respondent, the Panel considers that the clear inference to be drawn is that the Respondent registered the domain name for the purpose of attracting Internet users to its website by creating a likehood of confusion with the Complainant's trademark. Certainly, due to the reputation of the Complainant's trademark there appears to be no reason for the Respondent to have selected the domain name other than to trade off the Complainant's reputation.
It is also clear from the Complainant's evidence that the disputed domain name was used in the manner alleged by the Complainant and also through a pay telephone system, as this Panel has checked. The domain name resolves to a pornographic service where the Complainant's goodwill and public image is clearly damaged.
Thus, the Panel finds for the Complainant on this third element of the test. 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.
Manuel Moreno-Torres
Sole Panelist
Dated: January 12, 2010
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