The Complainant is NATRA, S.A. of Valencia, Spain, represented by Arturo Canela Gimenez, Spain.
The Respondent is Unitedeurope Consulting of Gwangju, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with Korea Information Certificate Authority Inc. d/b/a DomainCA.com. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 22, 2011. On June 22, 2011, the Center transmitted by email to Korea Information Certificate Authority Inc. d/b/a DomainCA.com. a request for registrar verification in connection with the Disputed Domain Name. On June 28, 2011, Korea Information Certificate Authority Inc. d/b/a DomainCA.com. 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”).
On July 1, 2011, the Center issued a Language of Proceeding notification, inviting comment from the parties. On July 4, 2011, the Respondent sent an email to the Center requesting Korean to be the language of the proceeding. On the same date, the Complainant submitted a request that English be the language of the proceeding. On July 11, 2011, the Center notified the parties of its preliminary decision to 1) accept the Complaint as filed in English; 2) accept a Response in either Korean or English; and 3) appoint a panel familiar with both languages mentioned above, if available and also advised the parties that in accordance with paragraph 11 of the Rules, the Panel has the authority to determine the language of the proceeding.
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 July 11, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was July 31, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 1, 2011.
The Center appointed Andrew J. Park as the sole panelist in this matter on August 9, 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. 4. Factual Background
The Complainant, founded on August 10, 1950, under the name Faubel Y Benlloch Y Fernandiz, SRC changed its name to the current NATRA, S.A. on July 20, 1962. The Complainant is involved in a wide array of industries, including those in the pharmaceutical, beverage, agricultural, and real estate industries. The Complainant has registered various marks composed of the name “natra,” and has been using same as a trademark as early as 1964. It is currently the registrant of the following marks: Mark: Reg. No. / Country of Registration:
1. NATRA, S.A. (Trade Name) 44.077 (Spain)
2. NATRA, S.A. 621.901 (Germany, Austria, Benelux, France, and Switzerland)
3. N.NATRA.S.A. 2.128.183 (Spain)
4. N.NATRA.S.A. 2.829.509 (Spain)
The above-mentioned trademarks are collectively referred to as the “NATRA Marks.” 5. Parties’ Contentions A. Complainant
The Complainant argues that: (i) the Disputed Domain Name is confusingly similar to a mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) the Disputed Domain Name was registered and is being used in bad faith.
Regarding the first element, the Complainant contends that the Disputed Domain Name is identical to the distinctive element of the Complainant’s NATRA Marks, namely the word “natra,” and thus, the Disputed Domain Name is confusingly similar to its trademark.
Regarding the second element, the Complainant contends that the Respondent’s website bearing the Disputed Domain Name is written in English and Spanish with mixed content that is widely disparate in subject matter, ranging from bedding ensembles, stock exchange and related subject matter, ATV-related matter, hotels, and motorcycle riding schools. Further, the Complainant contends that each of the fields lists a number of addresses from other websites offering products and services such as beauty products, car rentals, stock quotes, household products, chocolates, etc.
The Complainant also alleges that the Respondent registered the Disputed Domain Name in order to sell it. The Complainant bases this allegation on the Respondent’s failure to make reasonable use of the Disputed Domain Name. In addition, the Complainant points out that the Respondent offered to sell the Disputed Domain Name to it for the estimated price of USD 20,000, a price that the Complainant believes is too high relative to the registration and maintenance costs of the Disputed Domain Name.
Regarding the third element, the Complainant merely re-alleges the contentions it raised previously. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
The registration agreement for the Disputed Domain Name is in Korean. Pursuant to paragraph 11 of the Rules, unless otherwise agreed by the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement, i.e., in this case Korean. However, the Complainant submitted a request for this dispute to proceed in English. It is also recognized that the Respondent requested Korean to be the language of the proceeding. The Center made a preliminary determination to accept the Complaint filed in English and the Response in English or in Korean, subject to a determination by the Panel pursuant to paragraph 11 of the Rules.
In adopting a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the proposed language, time and costs. Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004; Finter Bank Zurich v. Shumin Peng,WIPO Case No. D2006-0432. Based on the fact that the Disputed Domain Name displays content that is in English and the fact that the Respondent chose not to participate or submit any reply to this proceeding in English or Korean, the Panel concludes that it will 1) proceed in line with the Center’s preliminary decision to accept the Complaint as filed in English; and 2) issue a decision in English. 6.2 Analysis of the Complaint
Under the Policy, in order to prevail, the Complainant must prove the following three elements of a claim for transfer or cancellation of the Respondent’s Disputed Domain Name: (i) that the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) that the Respondent’s Disputed Domain Name was registered and is being used in bad faith. See Policy, paragraph 4(a). Regarding paragraph 4(a)(ii), once a prima facie case is made, a respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP. See Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
As the Respondent has not filed a Response, the Panel may decide the dispute based on the Complaint and may accept all reasonable factual allegations as true. The Panel may also draw appropriate inferences from Respondent’s default. Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009. A. Identical or Confusingly Similar
The case record contains ample evidence to demonstrate the Complainant’s rights in the registered NATRA Marks. The Panel also determines that the Disputed Domain Name is confusingly similar to the Complainant’s NATRA Marks. The test for determining confusing similarity involves a direct comparison of a complainant’s trademark and the textual string which comprises the domain name. In this case, it is clear that the Disputed Domain Name is composed entirely of the dominant and distinctive word portion of the Complainant’s NATRA Marks. Additionally, the Panel notes that it is well-established that the top-level domain name suffix (e.g., “.com”) is not generally taken into consideration when assessing identical or confusing similarity. Accordingly, the Panel finds that Complainant has satisfied the first element of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that the Respondent may establish rights or legitimate interests in the Disputed Domain Name by proof of any of the following non-exclusive list of circumstances: (i) before any notice to the Respondent of the dispute, the Respondent used, or made demonstrable preparations to use, the Disputed Domain Name or a name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services; or (ii) the Respondent (as an individual, business, or other organization) has been commonly known by the Disputed Domain Name, even if the Respondent has not acquired trademark or service mark rights; or (iii) the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. If the circumstances are sufficient to constitute a prima facie showing by the Complainant of an absence of rights or legitimate interests on the part of the Respondent, the evidentiary burden shifts to the Respondent to show, by plausible, concrete evidence, that it does have a right or a legitimate interest.
The Complainant has not authorized the Respondent to use its NATRA Marks in any respect. There is also no evidence that the Respondent is commonly known by the Disputed Domain Name. Further, the Respondent’s use of the Disputed Domain Name to sponsor links is not use of the Disputed Domain Name in connection with a bona fide offering of goods or services. See, e.g., Barceló Corporación Empresarial, S.A. v. Hello Domain,WIPO Case No. D2007-1380; Robert Bosch GmbH v. Asia Ventures, Inc.,WIPO Case No. D2005-0946; E, Inc. v. Ult. Search, Inc.,WIPO Case No. D2001-1319; Trade Me Limited v. Vertical Axis Inc,WIPO Case No. D2009-0093. Finally, there is no evidence that the Respondent is making any legitimate noncommercial or fair use of the Disputed Domain Name. Based on the un-refuted evidence submitted by the Complainant, the Panel finds that the Respondent is not making fair use of the Complainant’s trademark, but is using the mark to attract Internet users to the Respondent’s website and then providing links to other sites.
This combination of circumstances sufficiently establishes a prima facie case so that the evidentiary burden shifts to the Respondent to prove that it has some rights or legitimate interests in respect of the Disputed Domain Name. The Respondent has not filed a Response and has therefore failed to satisfy its burden. Having searched the present record, the Panel finds no circumstances that would indicate such rights or interests, as described in paragraph 4(c) of the Policy, or otherwise. The Complainant has therefore prevailed on this part of its Complaint. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires that the Complainant establish both bad faith registration and bad faith use of the Disputed Domain Name by the Respondent. See World Wrestling Federation Entertainment, Inc. v. Michael Bosman,WIPO Case No. D1999-0001. Paragraph 4(b) of the Policy provides the following four exemplary circumstances, each of which, if proven, shall be evidence of the registration and use of a disputed domain name in bad faith: (i) circumstances indicating that a registrant has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to a complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location.
The Complainant has argued that the Respondent registered the Disputed Domain Name to sell it, but does not state whether it was intended to be sold to the Complainant itself. Furthermore, there is no firm evidence to support this claim. Notwithstanding, the Panel finds that the Respondent is presumably deriving a financial benefit from web traffic diverted through the Disputed Domain Name to linked websites on the website to which the Disputed Domain Name resolves. The Panel therefore accepts that the Respondent has intentionally attracted Internet users to its website for commercial gain through confusion as to the source, affiliation or endorsement of the website or location. This amounts to evidence of bad faith use under paragraph 4(b)(iv) of the Policy. See Compart AG v. C / Vertical Axis, Inc.,WIPO Case No. D2009-0462. Further, the Respondent, by use of the Disputed Domain Name, is also drawing Internet users away from the Complainant’s website to its own website and thus damages Complainant’s business. Accordingly, the Panel finds that the Respondent registered the Disputed Domain Name primarily for the purpose of attracting Internet users to another site by creating confusion and this is evidence of bad faith under paragraphs 4(b)(iii) and (iv) of the Policy. For the foregoing reasons, the Panel finds that the Complainant has satisfied the third element 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 Disputed Domain Name be transferred to the Complainant.
Andrew J. Park
Sole Panelist
Dated: August 23, 2011
Full & Egal Universal Law Academy