The Complainant is The Estate of Alberto Aguilera Valadez of Miami, Florida, United States of America (“United States”), represented by Shutts & Bowen LLP, United States.
The Respondent is Edinson R. Ramirez of Barinas, Venezuela (Bolivarian Republic of). 2. The Domain Name and Registrar
The disputed domain name, (the “Domain Name”), is registered with 1&1 Internet AG (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 29, 2017. On June 30, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 4, 2017, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 10, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 30, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 4, 2017.
The Center appointed Tony Willoughby as the sole panelist in this matter on August 8, 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
The Complainant is the Estate of Alberto Aguilera Valadez, a distinguished Mexican singer songwriter famed for his Latin American music, who was better known as “Juan Gabriel”. He had several trade mark registrations covering his pseudonym including by way of example United States Registration No. 4,473,908 registered January 28, 2014 for JUAN GABRIEL (word mark) in class 9 for a wide variety of goods associated with his career as an international musician.
Juan Gabriel died on August 28, 2016. The Complainant has produced evidence (unchallenged by the Respondent), which satisfies the Panel that Juan Gabriel’s trade mark registrations are now owned by the Complainant.
The Domain Name was registered by the Respondent on September 16, 2016 and appears never to have been connected to an active website. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to its JUAN GABRIEL registered trade mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. General
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent 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. B. Identical or Confusingly Similar
The Domain Name features the Complainant’s trade mark, the word “oficial” which implies that it is an official domain name associated with Juan Gabriel and the generic “.com” Top-Level Domain (“gTLD”) identifier. It being permissible for panels to ignore the gTLD identifier when it serves no purpose other than the technical one, the Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights. C. Rights or Legitimate Interests
The Panel is satisfied that the Complainant has made out a prima facie case that the Respondent registered the Domain Name with knowledge of the fame of the late Juan Gabriel and with a view to exploiting the value of the name in some way. The Panel is satisfied on the unchallenged evidence of the Complainant that in the absence of some explanation from the Respondent none of the circumstances set out in paragraph 4(c) of the Policy is applicable. The Respondent has a case to answer, but the Respondent has produced no answer.
The Panel can conceive of no basis upon which the Respondent might reasonably be said to have rights or legitimate interests in respect of the Domain Name and finds that the Respondent has no such rights or legitimate interests. D. Registered and Used in Bad Faith
The Respondent has not yet connected the Domain Name to any active website, but the Panel agrees with the Complainant that the Respondent must have had some use in mind when registering the Domain Name and it must have related in some way to Juan Gabriel who had died only two and a half weeks before the Domain Name was registered by the Respondent.
In the absence of any explanation from the Respondent, the Panel infers that the Respondent has no answer to the Complainant’s contentions and registered the Domain Name with the intention of making some dishonest use of it in violation of the Complainant’s trade mark rights. The Domain Name appears on its face to constitute a lie, there being no basis upon which the Respondent could be said to have any association with either Juan Gabriel or the Complainant, official or otherwise.
The Panel finds that the Domain Name in the hands of the Respondent constitutes an abusive threat hanging over the head of the Complainant and as such a continuing use in bad faith.
The Panel finds that the Domain Name was registered and is being used in bad faith. 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.
Tony Willoughby
Sole Panelist
Date: August 9, 2017
Full & Egal Universal Law Academy