The Complainant is Venta de Especialidades Quimicas, S.A. of Terrassa, Spain (“VEDEQSA”), internally represented.
The Respondent is Domain Admin, C/O ID#10760, Privacy Protection Service INC d/b/a PrivacyP of Nobby Beach, Queensland, Australia / Fuguochen of Luohe, Henan, China. 2. The Domain Name and Registrar
The disputed domain name (“Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 15, 2017. On June 19, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 20, 2017, the Registrar transmitted by email to the Center its verification response disclosing the registrant and contact information for the Domain Name which differed from the named Respondent and contact information as set forth in the Complaint. The Center sent an email communication to the Complainant on June 21, 2017 providing the registrant and contact information disclosed by the Registrar and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on June 21, 2017. On June 21, 2017, the parties were also put on notice that the Domain Name expired on May 18, 2017 and that in order to maintain this proceeding against the Domain Name, the registration would need to be renewed. On June 27, 2017, the Complainant renewed the Domain Name and on June 28, 2017, the Registrar placed the Domain Name in Registrar HOLD and Registrar LOCK status per ICANN’s Registrar Accreditation Agreement (the “RAA”), section 3.7.5.7. Further and as required by the RAA, section 3.7.5.7, the Registrar removed the Respondent’s information in the WhoIs record and replaced this information with that of “P.D.R. Solutions FZC” of Mumbai, India for the remainder of this proceeding. “Fuguochen” accordingly remains the Respondent in this proceeding.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint and the proceedings commenced on June 28, 2017. In accordance with the Rules, paragraph 5, the due date for the Respondent to file a response was July 18, 2017. The Respondent did not submit any response. Accordingly, the Center notified the parties of the Respondent’s default on July 19, 2017.
The Center appointed Marylee Jenkins as the sole panelist in this matter on July 25, 2017. 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
Based on the review of the uncontested evidence submitted by the Complainant, the Panel determines that the Complainant is the owner of several trademark registrations for the mark MIRCAP including Spanish Trademark Registration No. 3,547,890 with a priority claim of February 12, 2015 and registered on May 25, 2015; International Trademark Registration No. 1,261,312 with a priority claim of February 12, 2015 and registered on May 29, 2016; and United States of America Trademark Registration No. 4,975,510 filed on May 29, 2015 with a priority claim of February 12, 2015 and registered on June 14, 2016; all in international class 1 (individually and collectively the “Complainant’s Mark”). The Complainant also owns the domain name that markets its products at the website accessible at that domain name.
The Respondent registered the Doman Name on May 18, 2016 and, as set forth above, the Domain Name has been renewed by the Complainant during this proceeding. The Domain Name previously did not direct to any website. The Domain Name now redirects to the Complainant’s website at “www.”. 5. Parties’ Contentions A. Complainant
The Complainant alleges that the Domain Name is identical to a trademark or service mark in which the Complainant has rights. Particularly, the Complainant states that it is a Spanish company specializing in the commercialization of additives and specific ingredients for the food and cosmetic industries. The Complainant states that “Mircap” corresponds to an important line of products marketed and distributed by the Complainant worldwide. The Complainant also states that it is the owner of the Complainant’s Mark. The Complainant requests that the Domain Name be transferred to it according to its commercial interest and its intention to use the Domain Name to help distribute its Mircap products via the Internet.
The Complainant alleges that the Respondent has no rights or legitimate interests in the Domain Name because the Complainant has not granted any permission to the Respondent to use the Domain Name. The Complainant continues to allege that the Respondent’s use of the Domain Name has no connection with a bona fide offering of goods and services and it has not been given the authority to act or speak on behalf of the Complainant whose product name is identical to the listed registrant set forth in contact details for the Domain Name. The Complainant alleges that the Respondent has not been commonly known by the Domain Name and that the Domain Name registered by the Respondent is identical to the name of the Complainant’s product Mircap.
The Complainant alleges that the Domain Name was registered and is being used in bad faith by the Respondent. The Complainant alleges that the Respondent registered the Domain Name primarily for the purpose of disrupting its business and its promotion of the Complainant’s product named “Mircap”. The Complainant states that the website at the Domain Name is not active. Based on the above, the Complainant alleges that it has met the bad faith requirements under the Policy and that the Domain Name should be transferred to it. B. Respondent
The Respondent did not file a response with respect to this proceeding. 6. Discussion and Findings
Paragraph 4(a) of the Policy states that the domain name holder is to submit to a mandatory administrative proceeding in the event that a third party (complainant) asserts to an ICANN-approved dispute resolution service provider that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the domain name holder 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.
Under paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent’s default as the Panel considers appropriate. Nevertheless, the Panel may rule in the Complainant’s favor only after the Complainant has proven that the above elements are present. A. Identical or Confusingly Similar
Under paragraph 4(a)(i) of the Policy, the Complainant is required to establish that the Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights. The Panel finds that the Complainant has provided sufficient evidence to establish that it is the owner of and has rights in and to the Complainant’s Mark and notes that its rights in the Complainant’s Mark proceed the registration date of the Domain Name.
A review of the second-level domain “mircap” of the Domain Name shows that it comprises the Complainant’s Mark in its entirety. The Panel finds that the Respondent’s registration of this Domain Name shows that the Respondent was aware of the Complainant’s business and the Complainant’s Mark when registering the Domain Name since such Domain Name registration occurred well after the filing dates of the Complainant’s Mark and at about the same time these marks were being registered by the corresponding trademark offices. The Panel therefore concludes that the Domain Name is identical to the Complainant’s Mark in which the Complainant has rights and that paragraph 4(a)(i) has been satisfied. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out circumstances, in particular but without limitation, which, if found by the panel to be proven based on the evaluation of all of the evidence presented, can demonstrate the domain name holder’s rights to or legitimate interests in a domain name. These circumstances include:
(i) before any notice to the holder of the dispute, the holder’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the holder (as an individual, business, or other organization) has been commonly known by the domain name, even if the holder has acquired no trademark or service mark rights; or
(iii) the domain name holder is making a 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.
No evidence has been presented that, before any notice to the Respondent of this dispute, the Respondent was using or was making demonstrable preparations to use the Domain Name in connection with any type of bona fide offering of goods or services or that the Respondent has been commonly known, as an individual, business or otherwise, by the Domain Name. In addition, it is apparent that the Complainant has never allowed or permitted the Respondent to register or use any domain name incorporating the Complainant’s Mark. Rather the Complainant had rights in the Complainant’s Mark at the time of the Respondent’s registration of the Domain Name and the Respondent nevertheless registered the Domain Name.
In addition, the Complainant alleges that there was no website accessible at the Domain Name. The Respondent has not responded to this allegation or presented any evidence or arguments to refute the allegation or to show that the Respondent was using or was making demonstrable preparations to use this Domain Name in connection with any type of bona fide offering of goods or services. Based on the above, the Panel concludes that the Respondent has no rights or legitimate interests in the Domain Name and that paragraph 4(a)(ii) of the Policy has been satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that evidence of registration and use in bad faith by the domain name holder includes, but is not limited to:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder 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 holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the holder’s website or location.
No evidence has been presented that the Respondent is commonly known by the Domain Name or that the Complainant has, at any time, assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the Complainant’s Mark. Further, no evidence has been presented that, before any notice to the Respondent of this dispute, the Respondent had been using or was making demonstrable preparations to use the Domain Name in connection with any type of bona fide offering of goods or services. Rather, the Panel finds that the Respondent had knowledge of the Complainant’s business and the Complainant’s Mark when registering the Domain Name. This finding is supported by the evidence showing that the Domain Name was registered by the Respondent after the Complainant’s earlier application filing dates of the Complainant’s Mark.
When coupled with the Complainant’s allegation that the Domain Name did not resolve to a website, the Panel finds that the Respondent’s registration of and inactivity regarding the Domain Name constitute passive use or holding of the Domain Name thereby supporting a finding of bad faith registration and use of the Domain Name. The Panel accordingly concludes that paragraph 4(a)(iii) of the Policy has been satisfied. 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 Name be transferred to the Complainant.
Marylee Jenkins
Sole Panelist
Date: August 16, 2017
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