WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Vivartia Industrial & Commercial Company of Food Products & Catering Services S.A. v. Moniker Privacy Services, Jonathan Kimball Case No. D2010-0079 1. The Parties
The Complainant is Vivartia Industrial & Commercial Company of Food Products & Catering Services S.A. of Athens, Greece, represented by Dineff Trademark Law Limited, United States of America (“USA”).
The Respondents are Moniker Privacy Services of Pompano Beach, Florida, USA, and Jonathan Kimball of Durham, North Carolina, USA. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Moniker Online Services, LLC. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 15, 2010. An amendment to the Complaint, correcting the email address of the first Respondent, was filed on January 18, 2010.
The Center transmitted its request for registrar verification to the Registrar on January 18, 2010. The Registrar replied on January 20, 2010, confirming that it had received a copy of the Complaint, that the Domain Name was registered with it, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied to the Domain Name, that the Domain Name would expire on October 22, 2010 and had been locked, and that the registration agreement was in English. The Registrar also supplied the full contact details of the registrant of the Domain Name held on its WhoIs database, which identified the second Respondent as the registrant. The Registrar did not dispute that the registration agreement contained a mutual jurisdiction clause in accordance with the ICANN Registrar Accreditation Agreement.
The Center verified that the Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondents of the Complaint, and the proceeding commenced on January 21, 2010. The notification appears to have been delivered successfully by courier to both Respondents. In accordance with paragraph 5(a) of the Rules, the due date for Response was February 10, 2010. The Respondents did not submit any response. Accordingly, the Center notified the Respondents' default on February 11, 2010.
The Center appointed Jonathan Turner as the sole panelist in this matter on February 18, 2010. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint as amended complied with applicable formal requirements, was duly notified to the Respondents and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules. 4. Factual Background
The Complainant's group is the leading food producer based in Greece and one of the largest food producers in Europe. The Complainant and its predecessors have used the mark 7DAYS since 1991 and have registered it in many countries around the world. Their registrations of this mark in Greece and Portugal date back to 1993.
The Domain Name was registered in 1997 and is currently pointed to a generic holding page containing links to other websites. 5. Parties' Contentions A. Complainant
The Complainant contends that the Domain Name is identical to its mark 7DAYS for the purpose of the UDRP, since the generic top level domain suffix should be disregarded.
The Complainant further contends that the Respondent (apparently referring to the second Respondent) has not used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services. It submits that the Respondent's use of the Domain Name for a generic holding page does not constitute an offering of goods or services and that any such offering is not bona fide. It further submits that the Respondent is not commonly known by the Domain Name and that it is not making legitimate noncommercial or fair use of it, but is using it for his commercial benefit by redirecting Internet users to commercial sites through sponsored links. According to the Complainant, the Respondent's use of the Domain Name misleadingly diverts Internet users to his website and has the effect of tarnishing the Complainant's trademarks.
The Complainant contends that the prior registrations of its mark constituted constructive notice of it and that the subsequent registration of the Domain Name should be inferred to have been in bad faith. The Complainant submits that this inference is reinforced by the fact that websites at other domain names owned by the Respondent have similar holding pages, indicating that he is merely engaged in redirecting Internet traffic for commercial gain. The Complainant alleges that that the Respondent is taking advantage of the likelihood of confusion between the Domain Name and the Complainant's mark in order to profit from its goodwill, and that by using the Domain Name the Respondent has intentionally attempted to attract Internet users to his website for commercial gain by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the website. The Complainant also draws attention to findings of bad faith against the Respondent in other cases under the UDRP. B. Respondents
As stated above, the Respondents did not reply to the Complainant's contentions. 6. Discussion and Findings
It is evident that the first Respondent is a privacy service used by the second Respondent and that the latter is the real registrant and Respondent to this Complaint. The Panel considers that it is appropriate to apply the UDRP accordingly. References in the following discussion and findings to “the Respondent” refer to the second Respondent.
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith.
In accordance with paragraph 14(b) of the Rules the Panel shall draw such inferences from the Respondent's default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed. A. Identical or Confusingly Similar
The Panel finds that the Complainant has registered and unregistered rights in the mark 7DAYS. The Panel further finds that the Domain Name is identical to this mark for the purpose of the UDRP. As held in numerous decisions under the UDRP, for this purpose the generic top level domain name suffix should be discounted. The first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
The Panel finds on the undisputed evidence of the Complainant that the Respondent has not used or made demonstrable preparations to use the Domain Name for a bona fide offering of goods or services. The Panel considers that the Respondent's use of the Domain Name for a generic holding page does not constitute an offering of goods or services for this purpose. The Panel further considers that, in the circumstances, the use is not bona fide, but rather takes unfair advantage of confusion between the Domain Name and the Complainant's mark, by attracting Internet users seeking the Complainant's website and obtaining click-through commissions when some of the diverted Internet users follow the links on the Respondent's website.
The Panel further finds that the Respondent is not commonly known by the Domain Name and that he is not making legitimate noncommercial or fair use of it without intent misleadingly to divert Internet users. On the contrary, he is making commercial and unfair use of it to divert Internet users by confusion with the Complainant's mark as described above.
In the circumstances, the Panel finds that there is no other basis on which the Respondent could have rights or legitimate interests in the Domain Name. The second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith
The Panel finds that the Respondent is using the Domain Name intentionally to attract Internet users to his website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the website for commercial gain in the form of click-through commissions when some of the diverted Interet users follow the links on the Respondent's website.
In accordance with paragraph 4(b)(iv) of the UDRP, this constitutes evidence of the registration and use of the Domain Name in bad faith. There is no evidence rebutting this presumption. On the contrary, the presumption is reinforced by the findings of bad faith on the part of the Respondent in other cases under the UDRP.
In all the circumstances, the Panel finds that the Domain Name was registered and is being used in bad faith. The third requirement of the UDRP is satisfied and it is appropriate to order transfer of the Domain Name to the Complainant. 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.
Jonathan Turner
Sole Panelist
Dated: February 22, 2010
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