Hidrinox S.A. and Isely S.A. v. Leo Pardo
Claim Number: FA0201000104196
PARTIES
Complainants are Hidrinox S.A. and Isely
S.A., Buenos Aires, Argentina (“Complainants”) represented by Hector Majdalani. Respondent is Leo Pardo, Buenos Aires, Argentina (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hidrinox.com>, registered with DomainDiscover.
PANEL
The undersigned certifies that he has
acted independently and impartially and to the best of his knowledge, has no
known conflict in serving as Panelist in this proceeding.
Jaime
Delgado as Panelist.
PROCEDURAL HISTORY
Complainants submitted a Complaint to the
National Arbitration Forum (the “Forum”) electronically on January 31, 2002;
the Forum received a hard copy of the Complaint on February 11, 2002. The Complaint was submitted in Spanish, the
official language of Respondent’s country of residence.
On February 4, 2002, DomainDiscover
confirmed by e-mail to the Forum that the domain name <hidrinox.com> is registered with DomainDiscover and that
Respondent is the current registrant of the name. DomainDiscover has verified that Respondent is bound by the DomainDiscover
registration agreement and has thereby agreed to resolve domain-name disputes
brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute
Resolution Policy (the “Policy”).
On February 13, 2002, an English and
Spanish Notification of Complaint and Commencement of Administrative Proceeding
(the “Commencement Notification”), setting a deadline of March 5, 2002 by which
Respondent could file a Response to the Complaint, were transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent’s registration as technical, administrative and billing contacts,
and to postmaster@hidrinox.com by e-mail.
Having
received no Response from Respondent, using the same contact details and
methods as were used for the Commencement Notification, the Forum transmitted
to the parties a Notification of Respondent Default.
On March 11, 2002 pursuant to
Complainants’ request to have the dispute decided by a single-member Panel, the
Forum appointed Jaime Delgado as Panelist.
Having reviewed the communications
records, the Administrative Panel (the “Panel”) finds that the Forum has
discharged its responsibility under Paragraph 2(a) of the Rules for Uniform
Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably
available means calculated to achieve actual notice to Respondent.” Therefore, the Panel may issue its decision
based on the documents submitted and in accordance with the ICANN Policy, ICANN
Rules, the Forum’s Supplemental Rules and any rules and principles of law that
the Panel deems applicable, without the benefit of any Response from Respondent.
RELIEF SOUGHT
Complainants
request that the domain name be transferred from Respondent to Complainants.
PARTIES’ CONTENTIONS
A.
Complainants
The disputed domain name <hidrinox.com> is identical to a
registered mark in which Complainants hold rights.
Respondent has no rights or legitimate
interests in respect of the disputed domain name.
Respondent registered and used the
disputed domain name in bad faith.
B. Respondent
Respondent did not submit a Response in
this proceeding.
FINDINGS
Complainants are engaged in the business
of designing and producing a unique stainless steel tubing product, involving a
patented “high hydraulic compression” system, under the HIDRINOX mark.
Complainants have maintained a website to promote their
products, services, and marks at <hidrinox.com.ar>. They hold registered marks in HIDRINOX in
international classes 6 and 17 in Argentina (Registration Nos. 1,892,798 &
1,892,799), Uruguay, Paraguay, Peru, Mexico, Chile, Colombia, Bolivia, and
Brasil.
Respondent registered the disputed domain
name on March 7, 2000, and has used the domain name to promote products of
firms in competition with Complainants, and to offer the domain name for
sale. After being contacted by Complainants,
Respondent offered to sell the disputed domain name for $20,075 USD.
DISCUSSION
Paragraph 15(a) of
the Rules instructs this Panel to “decide a complaint on the basis of the
statements and documents submitted in accordance with the Policy, these Rules
and any rules and principles of law that it deems applicable.”
In view of Respondent's failure to submit a Response, the
Panel shall decide this administrative proceeding on the basis of the
Complainants’ undisputed representations pursuant to paragraphs 5(e), 14(a) and
15(a) of the Rules and draw such inferences it considers appropriate pursuant
to paragraph 14(b) of the Rules.
Paragraph 4(a) of the Policy requires
that the Complainants prove each of the following three elements to obtain an
order that a domain name should be cancelled or transferred:
(1) the domain name registered by the
Respondent is identical or confusingly similar to a trademark or service mark
in which the Complainants have rights; and
(2) the Respondent has no rights or
legitimate interests in respect of the domain name; and
(3) the domain name has been registered
and is being used in bad faith.
Identical and/or Confusingly Similar
Complainants have established their
rights in the HIDRINOX mark through registration with the Argentinean trademark
registrar and continuous subsequent use.
The disputed domain name incorporates
Complainants’ mark in its entirety and merely adds the generic top level domain
(gTLD) “.com.” The use of a gTLD is
insignificant when determining whether a domain name and mark are identical
since the gTLD is a required element in domain names. See Pomellato S.p.A v.
Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com>
identical to Complainant’s mark because the gTLD “.com” after the name
POMELLATO is not relevant); see also
Visit Am., Inc. v. Visit Am., FA 95093 (Nat. Arb. Forum Aug. 14, 2000)
(finding that the “.com” is part of the Internet address and does not add
source identity significance). The
disputed domain name is, thus, identical to Complainants’ mark.
Accordingly, the Panel finds that Policy
¶ 4(a)(i) has been satisfied.
Rights or Legitimate Interests
Complainants have demonstrated their
rights to and interests in the HIDRINOX mark.
Because Respondent has not submitted a Response in this matter, the
Panel may presume it holds no such rights or interests. See
Talk City, Inc. v. Robertson,
D2000-0009, (WIPO Feb. 29, 2000) (“In the absence of a response, it is
appropriate to accept as true all allegations of the Complaint”).
Respondent’s use of a domain name,
identical to Complainants’ mark, to direct Internet users to a competing
website cannot be deemed a bona fide offering of goods or services pursuant to
Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶
4(c)(iii). See North Coast Med., Inc. v. Allegro Med., FA 95541 (Nat. Arb.
Forum Oct. 2, 2000) (finding no bona fide use where Respondent used the domain
name to divert Internet users to its competing website); see also Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO
Aug. 21, 2000) (finding that the disputed domain names were confusingly similar
to Complainant’s mark and that Respondent’s use of the domain names to sell
competing goods was illegitimate and not a bona fide offering of goods); see also Chanel, Inc. v. Cologne Zone,
D2000-1809 (WIPO Feb. 22, 2001) (finding that the use of an infringing mark to
sell complainant’s perfume, as well as other brands of perfume, was not a bona
fide use).
Further, there is no evidence Respondent
is known by “hidrinox” or “hidrinox.com” pursuant to Policy ¶ 4(c)(ii);
Respondent is only known to this Panel as Leo Pardo. See Gallup Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that
Respondent does not have rights in a domain name when Respondent is not known
by the mark); see also Canadian Imperial
Bank of Commerce v. D3M Virtual Reality Inc. & D3M Domain Sales,
AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests
where no such right or interest was immediately apparent to the Panel and Respondent
did not come forward to suggest any right or interest it may have possessed).
The Panel thus finds that Respondent has
no rights or legitimate interests in respect of the disputed domain name and
that Policy ¶ 4(a)(ii) has been satisfied.
Registration and Use in Bad Faith
Respondent registered and used the
disputed domain name for the purpose of disrupting the business of Complainants
by directing Internet users who intended to visit Complainants’ website to
competing websites. Such behavior demonstrates
bad faith under Policy ¶¶ 4(b)(iii) & (iv). See EBAY, Inc. v.
MEOdesigns & Matt Oettinger, D2000-1368 (Dec. 15, 2000) (finding that
the Respondent registered and used the domain name <eebay.com> in bad
faith where Respondent used the domain name to promote competing auction
sites); see also Puckett, Individually v.
Miller, D2000-0297 (WIPO June 12, 2000) (finding that Respondent has
diverted business from the Complainant to a competitor’s website in violation
of Policy ¶ 4(b)(iii)); see also State
Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000)
(finding bad faith under Policy ¶ 4(b)(iv) where the Respondent registered the
domain name <bigtex.net> to infringe on the Complainant’s goodwill and
attract Internet users to the Respondent’s website).
Furthermore, Respondent’s efforts to sell
the disputed domain name for an amount of money greatly in excess of its
out-of-pocket expenses demonstrates bad faith within the meaning of Policy ¶
4(b)(i). See Matmut v. Tweed, D2000-1183 (WIPO Nov. 27, 2000) (finding bad
faith under Policy paragraph 4(b)(i) where Respondent stated in communication
with Complainant, “if you are interested in buying this domain name, we would
be ready to sell it for $10,000”); see
also Moynahan v. Fantastic Sites, Inc., D2000-1083 (WIPO Oct. 22, 2000)
(finding bad faith where the Respondent offered to sell the Domain Name to the
Complainant for $10,000 when Respondent was contacted by Complainant).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been
satisfied.
DECISION
Having established all three elements
required under the ICANN Policy, the Panel concludes that the requested relief
should be hereby granted.
Accordingly, it is Ordered that the <hidrinox.com> domain name be transferred from Respondent to Hidrinox
SA
_
Jaime
Delgado, Panelist
Dated: March 15, 2002
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