The Complainant is Minerva S.A., Brazil, represented by Opice Blum, Brazil.
The Respondent is Domain Administrator, Fast Serv Inc. d.b.a. QHoster.com, Belize. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 12, 2019. On November 13, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 13, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 14, 2019, 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 amendment to the Complaint on November 19, 2019. The Center verified that the Complaint together with the amendment to 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 November 25, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 15, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 18, 2019. The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on December 27, 2019. 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 operates in the food sector since 2004. The Complainant is the owner of the trademark MINERVA before the Brazilian Patent and Trademark Office (INPI), filed on January 21, 2004, and registered on December 5, 2017 under number 826080120. The disputed domain name The disputed domain name resolves to an inactive page. 5. Parties’ Contentions A. Complainant The Complainant argues that the disputed domain name is identical to its trademark MINERVA since it is used in combination to the word “food”. Accordingly, the relevant feature of the mark is recognizable in the disputed domain name and, thus confusing similarity may arise. Such confusion is strengthened by the term “food” which refers to its area of practice. The Complainant also alleges that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not licensed, permitted or otherwise authorized the Respondent to use its MINERVA trademark as a domain name. Besides, the Complainant asserts not to have found any evidence of rights or legitimate interest for the Respondent. As such, the Complainant refers to the provisions of paragraph 4 (c)(i) of the Policy. With regard to the third element, the Complainant contends that the disputed domain name has been registered and is being used in bad faith. Since 2004 the Complainant has been doing business in the food sector under the MINERVA trademark and therefore it is clear that the Respondent knew about the Complainant, its business, and its trademark. The Respondent is using the disputed domain name in bad faith. The Respondent is apparently involved in a fraud or scam where a “minervafood.com” email account seems to be part of it. The Complainant also alleges that the disputed domain name is inactive. Accordingly, to the distinctiveness of the MINERVA trademark such non-use should be considered bad faith use. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, to succeed the Complainant must satisfy the Panel that: (i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) the disputed domain names were registered and are being used in bad faith. There are no exceptional circumstances within paragraph 5(e) of the Rules to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response. Under paragraph 14(a) of the Rules in the event of such a “default” the panel is still required “to proceed with a decision on the complaint”, whilst under paragraph 14(b) it “shall draw such inferences there from as it considers appropriate”. This dispute resolution procedure is accepted by the domain name registrant as a condition of registration. Therefore, a registrant should not gain any evidentiary benefit from its failure to participate. A. Identical or Confusingly Similar The Complainant has demonstrated registered trademark rights in the mark MINERVA. Since the reproduction of the mark in the disputed domain name is apparent the confusing similarity test is to be considered met. The Panel notes the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8: “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”. Therefore, the first requirement is met under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The file shows evidence to infer that the Respondent is not affiliated to the Complainant, nor that the Respondent has been otherwise authorized to use the Complainant’s MINERVA trademark in the disputed domain name. Generally, the records show no rights or legitimate interests for the Respondent. Indeed, from the available WhoIs records, it would seem that the Respondent is not commonly known by the disputed domain name. Moreover, the Panel notes that the composition of the disputed domain name is such that it effectively impersonates or suggests sponsorship or endorsement by the Complainant. See WIPO Overview 3.0, section 2.5.1. Under these circumstances, the Panel finds that the Complainant has made a prima facie showing that the Respondent does not have rights or legitimate interests in the disputed domain name. Being that as it is, the Respondent is the one who must produce the corresponding evidence. See OSRAM GmbH. v. Mohammed Rafi/Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org,WIPO Case No. D2015-1149: “… once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of rights or legitimate interests in a disputed domain name”. However, the Respondent did not answer the Complaint although it had been duly notified. The Complainant has therefore demonstrated that the Respondent lacks rights or legitimate interests in the disputed domain name to the satisfaction of the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith For the purposes of the Policy, a complainant must establish that the disputed domain name was registered and used in bad faith by the respondent. The Panel finds that by adding to the Complainant’s mark an extra descriptive term, the Respondent knew or should know about the Complainant, MINERVA or its business somehow. Furthermore, it is well admitted that the non-use of a domain name does not prevent a finding of bad faith under the doctrine of “passive holding”. See WIPO Overview 3.0, section 3.3. For such assessment it is appropriate to look thoroughly at the case file and therefore to all the circumstances of the case. As noted above the Respondent lacks rights or legitimate interests in the disputed domain name and it has not provided any credible explanation for the choice of registering the disputed domain name. Further, the incorporation of the trademark in the disputed domain name suggests possible relation between the Parties when that is not the case. Such circumstances allow to infer in favor to the Complainant’s request. Consequently, the requirements of paragraph 4(a)(iii) of the Policy have 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 disputed domain name Manuel Moreno-Torres
Sole Panelist
Date: January 10, 2019
Full & Egal Universal Law Academy