The Complainant is Bell Sports, Inc. of Scotts Valley, California, United States of America represented by Baker Botts, LLP, United States of America.
The Respondent is Neosport of Badajoz, Spain. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 30, 2011. On May 2, 2011, the Center transmitted by email to GoD, Inc a request for registrar verification in connection with the disputed domain name. On May 3, 2011, GoD, Inc. 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 May 5, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was May 25, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 26, 2011.
The Center appointed Louis B. Buchman as the sole panelist in this matter on June 8, 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.
Regarding the language of the proceeding, the Center ascertained from the Registrar that the language of the Registration Agreement is English. Accordingly, the Panel determines that pursuant to paragraph 11(a) of the Rules the language of the proceeding is English, i.e. the language of the registration agreement. 4. Factual Background
The Complainant, which is a corporation incorporated in the United States of America, is the owner of over sixty-five trademarks for BELL, BELL HELMETS and other BELL marks, which are registered as a word mark in International class 9 in many countries, including the United States of America (e.g. registration number 815,907 registered on September 27, 1966, filed on May 16, 1965); and Spain (e.g. registration number M0757087 registered on June 22, 1977, filed on June 7, 1974). The Complainant’s products are protective helmets for various sports. The Complainant or its predecessors began using the BELL mark over fifty years ago in the United States of America. The Complainant’s marks are famous within the meaning of the Landham Act with the Museum of Modern Art in New York even selecting helmets manufactured by the Complainant and bearing the BELL mark for periodical display due to their excellence in design. The Complainant’s innovations have generated a reputation throughout the world for providing state of the art, high-quality helmets.
In addition, the Complainant, its parent company and licensees operate websites inter alia at the following domain names, which incorporate its BELL marks: , , and .
The disputed domain name was originally registered on July 12, 2000. 5. Parties’ Contentions A. Complainant
(i) The Complainant submits that the disputed domain name is identical or confusingly similar to its BELL and BELL HELMETS marks, and that the use of a hyphen between “bell” and “helmet” does not have any impact on the overall impression of the disputed domain name.
(ii) The Complainant contends that it registered and extensively used the BELL and BELL HELMETS marks long before the Respondent registered the disputed domain name, that the Respondent has no registered trademarks or trade names corresponding to the disputed domain name, nor any rights or legitimate interests in respect of the disputed domain name.
(iii) The web site page to which resolves is that of a direct competitor, Neosport Motorsport, which offers for sale a number of products, including helmets, which are covered by the Complainant's trademarks registrations. The Respondent is therefore making commercial use of the disputed domain name from use of the Complainant's BELL and BELL HELMETS marks.
(iv) The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has never been commonly known by the name “Bell”, and it has not used, or made any demonstrable preparations to use, the disputed domain name or corresponding name in connection with a bona fide or non-infringing offering of goods.
(v) By registering the disputed domain name, the Respondent is seeking to interfere with the Complainant's business as evidenced by the products offered or sold on the website to which the disputed domain name resolves, which compete directly with the Complainant's products. By using the Complainant's BELL and BELL HELMETS marks to offer competing products the Respondent is diverting consumers and potential consumers to competing products for profit.
(vi) In the absence of any prior rights to BELL HELMETS, the Respondent registered the disputed domain name in order to prevent the Complainant from reflecting its mark in the corresponding domain name. This is confirmed by the fact that the web site associated with the disputed domain name simply redirects consumers to competing products.
(vii) When consumers or potential consumers seek information online about the Complainant’s products or conduct an Internet search for BELL, they may visit the web site associated with the disputed domain name and be under the impression that the Complainant maintains a web site for its BELL products at , but offers no means of purchasing its own products there. This is damaging to the reputation of the Complainant’s marks and to the Complainant’s general business reputation.
(viii) The Respondent’s web site directs consumers and potential consumers to products that compete directly with the Complainant’s products. The Respondent therefore intends to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site or of a product on the Respondent’s website. Such conduct amounts to bad faith.
(ix) The Complainant thus contends that the Respondent’s bad faith registration and use of the disputed domain name is established by the fact that the Respondent had received no authorization, license or permission to use it, and by the fact that the disputed domain name, by attracting Internet’s users to the Respondent’s web site, creates a likelihood of confusion with the Complainant’s BELL and BELL HELMETS marks as to the source, sponsorship, affiliation or endorsement of the Respondent’s web site.
(x) The Complainant requests that the disputed domain name be transferred to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Procedural aspects
The Respondent is formally in default pursuant to paragraphs 5(e) and 14(a) of the Rules, and paragraph 8(c) of the Supplemental Rules, because no Response was received from the Respondent within the time limit set by the Policy and Rules.
Under the Rules, paragraphs 5(e) and 14(a), the effect of a default by the Respondent is that the Panel shall proceed to a decision on the basis of the Complaint.
Paragraph 10(a) of the Rules gives the Panel broad discretion to conduct the proceedings and the Panel must ensure that the proceedings take place “with due expedition”.
Accordingly, in the interest of fairness and of deciding the case on the basis of the most complete available record, the Panel has undertaken some limited factual research into matters of public record insofar as it felt it needed the results of such research to reach its decision.
The Panel thus ascertained that the hyperlinks in the web site associated with the disputed domain name are currently active and lead to web pages of a competitor of the Complainant, displaying products, including helmets, competing with the Complainant’s products.
Under paragraph 4(a) of the Policy, it is the Complainant’s burden to establish that all three of the required criteria for a transfer of the disputed domain name, or other remedy, have been met.
Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences from the Respondent’s default as it considers appropriate under the circumstances.
In this case, the Panel finds that as a result of the default, the Respondent has failed to rebut any of the factual assertions that are made and supported by evidence submitted by the Complainant.
In particular, by defaulting and failing to respond, the Respondent has failed to offer the Panel any of the types of evidence, set forth in paragraph 4(c) of the Policy, from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.
Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent has acted in bad faith. 6.2. With respect to the requirements of paragraph 4(a) of the Policy A. Identical or Confusingly Similar
In comparing the BELL HELMETS mark (registered as a European Community trademark under number 005306048 on September 6, 2007) to the disputed domain name, it is evident that the latter, , consists solely of the BELL HELMETS mark.
In addition, the Panel finds that the disputed domain name is confusingly similar to the BELL marks, which it incorporates in their entirety.
Regarding the “.com” top-level domain, the use of generic top-level domains does not ordinarily serve to distinguish a domain name from registered marks. See Microsoft Corp. v. Amit Mehrotra,WIPO Case No. D2000-0053.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often impossible task of proving a negative proposition, requiring information that is primarily, if not exclusively, within the knowledge of the respondent. Thus, the consensus view is that once a prima facie case is made, the burden shifts to the respondent to come forward with evidence of a right or legitimate interest in the domain name, as the Complaint has done in this case. See Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270.
As previously noted, the Respondent did not submit a Response, thus offering no reason for selecting the disputed domain name. There is no evidence that the Respondent is known by the disputed domain name, or a corresponding name or uses a corresponding name in a business. The web site to which the disputed domain name resolves displays selections of competing goods, and does not, in the view of the Panel, provide any information on what rights or legitimate interests the Respondent may have in the disputed domain name.
To counter any notion that the Respondent has such rights or legitimate interests, the Complainant has argued that the Respondent is not: (i) making a bona fide use of the disputed domain name; (ii) making a fair or legitimate noncommercial use of the disputed domain name; or (iii) commonly known by the disputed domain name.
Paragraph 4(a)(iii) of the Policy permits “legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue”.
The Respondent, however, includes hyperlinks to competing products. The Panel finds that such links establish that the disputed domain name is being used for commercial gain and that it is diverting consumers from the Complainant’s products or the Complainant’s web sites.
In the circumstances, on the balance of probabilities, the Panel finds that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name such that it would have rights or legitimate interests to the disputed domain name for the purposes of the Policy. The Panel is satisfied that the Respondent is using the disputed domain name for commercial gain, and concludes that the Complainant has established the second requirement of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent acted in bad faith by: (i) failing to obtain the Complainant’s authorization even though it knew or should have known of the Complainant’s BELL and BELL HELMETS marks; (ii) redirecting Internet traffic, intended for the Complainant, to the Respondent’s web site for commercial gain; and (iii) disrupting the business operations of the Complainant.
The Panel concludes in these circumstances that the Respondent’s registration and use of the disputed domain name indicates opportunistic bad faith and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case. 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 disputed domain name be transferred to the Complainant.
Louis B. Buchman
Sole Panelist
Dated: June 26, 2011
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