The Complainant is Normalu SA of Kembs, France represented by MEYER & Partenaires, France.
The Respondent is P of Munsbach, Luxembourg. 2. The Domain Names and Registrar
The disputed domain names and are registered with IHS Telekom, Inc. (the “Registrar”) 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 8, 2011. On March 8, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On March 10, 2011, the Registrar 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 March 23, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was April 12, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 14, 2011.
The Center appointed Kaya Köklü as the sole panelist in this matter on April 21, 2011. 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.
Paragraph 11 (a) of the Rules provides that, unless otherwise agreed by the parties, or specified otherwise in the registration agreement for the disputed domain name, the language of the administrative proceeding shall be the language of the registration agreement. However, based on the circumstances of the case, it is subject to the authority of the Panel to determine otherwise.
In the present case, the language of the registration agreement for each of the disputed domain names is Turkish. However, the Panel finds that it would be inappropriate to conduct the proceedings in the Turkish language and request a Turkish translation of the Complaint, while the Respondent has failed to raise any objection or even to respond to the Complainant or the Center’s communication with regard to the language of the proceedings, even though communicated in Turkish and English. The Panel is convinced that the Respondent will not be prejudiced by a decision rendered in English. 4. Factual Background
The Complainant is a manufacturer of stretch ceilings and operates its business from its headquarters in France since 1967.
As evidenced by Annexes E to G to the Complaint, the Complainant is the registered owner of the trademark BARRISOL as a word and figure mark in several classes in various countries worldwide. The first BARRISOL trademarks have been registered in 1975 and are since then duly renewed. Among a large number of national and international trademarks, the Complainant is also the registered owner of the Turkish wordmark BARRISOL, which was first registered with the Turkish Patent Institute in 1996.
Furthermore, the Complainant has registered and operates its trademark BARRISOL as domain names under several gTLDs and ccTLDs since the late 1990’s, e.g. , , , , and .
Based on the current record, the disputed domain names and have been registered on March 19, 2007.
The Respondent is a corporation located in Luxembourg, which seems to register domain names on behalf of third parties. In this case, the Respondent appears to have not disclosed the real identity of the true registrants of the disputed domain names. As a consequence, the real holder of the domain names may be another company or person. This other company or person, if existing, is probably located in Turkey as the products and services offered under the websites linked to the disputed domain names are in Turkish language only.
However, any real company or person hiding behind the Respondent could not be identified in the present case. Neither the Respondent itself nor the review of the homepages linked to the disputed domain names revealed any contact data. The only way to get in contact with the operator of the disputed domain names is by way of an online contact form. 5. Parties’ Contentions A. Complainant
The Complainant argues that the trademark BARRISOL enjoys a worldwide reputation in the field of stretch ceilings. According to the Complaint, the Complainant is the leading manufacturer for stretch ceilings and has been awarded for its innovative and outstanding products with more than 30 professional prizes throughout the world.
In this regard, it is alleged that renowned architects like Philippe Starck, Norman Foster or Peter Eisenmann use Barrisol products for projects, in particular in museums, art galleries, commercial or sport or music centers, exhibition halls, etc.
According to the information provided in the Complaint, there are five production sites for Barrisol products in France and three in other countries with more than 160 employees. Additionally, it is asserted that there are more than 1200 approved installers of BARRISOL stretch ceilings in more than 110 countries worldwide.
A comprehensive presentation about the history of the Complainant including pictures of the most remarkable installations are provided under the official company homepage linked to since more than 10 years.
The Complainant points out that the disputed domain names are likely to cause confusion among Internet user as the disputed domain names fully incorporate the mark BARRISOL without any amendments or changes and, hence, are identical to the Complainant’s trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant underlines that it has never granted a permission or license to the Respondent to use the trademark BARRISOL.
Additionally, it is argued that the Respondent has never used and does not intend to use the mark BARRISOL in connection with a bona fide offering of goods or services.
Finally, the Complainant believes that the Respondent must have registered and used the disputed domain names in bad faith. The Complainant is convinced that the Respondent was aware of the BARRISOL trademark well before the registration of the disputed domain names.
In light of the above, the Complainant requests the transfer of the disputed domain names as a remedy in these administrative proceedings. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant is obliged to prove that each of the three following elements is satisfied:
(i) The disputed domain names are identical or confusingly similar to the trademark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the domain names; and
(iii) The disputed domain names have been registered and are being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint, Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may as appropriately accept the provided reasonable factual allegations in the Complaint as true, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
In this regard it is noted that an independent research, by visiting the Internet sites linked to the disputed domain names, has been performed by the Panel on April 22, 2011. The competence of the Panel to perform such independent research is in line with previous UDRP decisions (see, e.g., Hesco Bastion Limited v. The Trading Force Limited, WIPO Case No. D2002-1038).
Further is noted that the Panel has recognized the second edition of the WIPO Overview of Panel Views on Selected UDRP Questions and, where appropriate, will decide consistent to the new “WIPO Overview 2.0”. A. Identical or Confusingly Similar
The Panel finds that the disputed domain names are identical to the Complainant’s trademark BARRISOL.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights regarding its sign BARRISOL. The Complainant has provided sufficient evidence demonstrating that for many years it is the registered owner of a large number of BARRISOL trademarks worldwide, including in trademark protection in Turkey since 1996.
Second, the Panel finds that the disputed domain names are identical to the Complainant’s trademark BARRISOL. The disputed domain names are an identical adoption of the registered trademark BARRISOL and do not incorporate any amendments or additions. The Panel points out that the addition of a TLD has no distinguishing effect and, as being a prerequisite of a domain name registration, may not to be considered within the assessment of identity or confusing similarity between the disputed domain names and the trademark in question.
Given the findings above, the Panel concludes that the first requirement under paragraph 4(a) of the Policy is fulfilled. B. Rights or Legitimate Interests
The Panel further finds that the Respondent has not demonstrated any right or legitimate interests in the disputed domain names.
While the burden of proof remains with the Complainant, the Panel has recognized that this would result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent's lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the responsibility shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain names in order to meet the requirements in paragraph 4(a)(ii) of the Policy, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or arguments to demonstrate a right or legitimate interest in the disputed domain names according to the Policy, paragraph 4(a)(ii) and 4(c).
With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no trademark, license or any similar right to use the Complainant’s mark in the disputed domain names.
In the absence of a Response by the Respondent, there is also no indication in the current record that the Respondent is commonly known by the disputed domain names. Also, there are neither contact details of the Respondent or any other person nor an imprint provided under the disputed domain names. Hence, there is virtually no option to associate a concrete person or company with the disputed domain names.
In addition, the Respondent has failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name. In particular, the Respondent has failed to show that the disputed domain names have been used in connection with a bona fide offering of goods or services.
Finally, there is also no indication that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names without the intent for commercial gain to misleadingly divert users or to tarnish the BARRISOL trademark. Quite the contrary, it appears that the Respondent or (if different) the operator of the domain names offers the same or confusingly similar stretch ceilings as the Complainant under the brand Barrisol. The Panel finds that this demonstrates that there is apparently no legitimate noncommercial or fair use of the disputed domain names.
Hence, the Panel concludes that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel further believes that the Respondent has registered and is using the disputed domain names in bad faith.
According to the provided documents in the Complaint, the Panel is convinced of the reputation and recognition of the Complainant’s trademark BARRISOL. The Panel further believes that the Respondent or any other person or company hiding behind the Respondent must have known this trademark when it registered the disputed domain names in 2007.
This is in particular likely as the disputed domain names were registered many years after the Complainant’s trademark BARRISOL has become registered and recognized in the world, including in Turkey. This finding is also supported by the fact that the Complainant was already supposed to be a world leader in manufacturing stretch ceilings at the date of domain names’ registration by the Respondent.
Another indication for bad faith registration and use is that the Respondent offers the same or at least confusingly similar stretch ceilings under the brand name Barrisol as done by the Complainant. Also, the disputed domain names are fully identical to the Complainant’s trademark BARRISOL. The Respondent has not even bothered to incorporate any amendments or additions to the disputed domain names compared to the trademark BARRISOL.
Finally, bad faith registration and use is further demonstrated by the fact that the Respondent or (if applicable) any other operator of the disputed domain names does not disclose its real contact information on the websites linked to the disputed domain names. There is only an online contact form available without any indication of a valid postal address or even an imprint.
Overall, the Panel finds that the above demonstrates a rather typical cybersquatting case.
The Panel therefore concludes that the disputed domain names were registered and are being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names and be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Dated: May 4, 2011
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