Eclat Textile Co. Ltd. v. More Virtual Agency
Claim Number: FA0204000110811
Complainant is Eclat Textile Co. Ltd., Taipei, TAIWAN (“Complainant”). Respondent is More Virtual Agency, Bonn, GERMANY (“Respondent”).
The domain name at issue is <bodycare.biz>, registered with Key-Systems GMBH.
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.
Judge Harold Kalina (Ret.) as Panelist.
Complainant has standing to file a Start-up Trademark Opposition Policy (“STOP”) Complaint, as it timely filed the required Intellectual Property (IP) Claim Form with the Registry Operator, NeuLevel. As an IP Claimant, Complainant timely noted its intent to file a STOP Complaint against Respondent with the Registry Operator, NeuLevel and with the National Arbitration Forum (the “Forum”).
Complainant submitted a Complaint to the Forum electronically on April 25, 2002; the Forum received a hard copy of the Complaint on April 27, 2002.
On May 15, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of June 4, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with paragraph 2(a) of the Rules for the Start-up Trademark Opposition Policy (the “STOP Rules”).
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 July 9, 2002, pursuant to STOP Rule 6(b), the Forum appointed Judge Harold Kalina (Ret.) as the single 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 STOP Rules. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the STOP Policy, STOP Rules, the Forum’s STOP Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.
Transfer of the domain name from Respondent to Complainant.
1. Respondent’s <bodycare.biz> domain name is identical to Complainant’s registered BODYCARE mark.
2. Respondent has no rights or legitimate interests in the <bodycare.biz> domain name.
3. Respondent registered the <bodycare.biz> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant holds registrations for its BODYCARE mark in numerous countries, more specifically: Reg. No. 620782 registered on February 15, 2001 in New Zealand; Reg. No. 847001 registered on December 21, 2001 in Australia; and, Reg. No. B11792 registered on October 12, 2001 in Hong Kong, among others.
Respondent registered the disputed domain name on March 27, 2002 and has yet to develop a purpose for the domain. Respondent is not licensed or authorized to use Complainant’s BODYCARE mark.
Paragraph 15(a) of the STOP 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 Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the STOP Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the STOP Rules.
Paragraph 4(a) of the STOP Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be transferred:
(1) the domain name is identical to a trademark or service mark in which the Complainant has 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 or is being used in bad faith.
Due to the common authority of the ICANN policy governing both the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and these STOP proceedings, the Panel will exercise its discretion to rely on relevant UDRP precedent where applicable.
Under the STOP proceedings, a STOP Complaint may only be filed when the domain name in dispute is identical to a trademark or service mark for which a Complainant has registered an Intellectual Property (IP) claim form. Therefore, every STOP proceeding necessarily involves a disputed domain name that is identical to a trademark or service mark in which a Complainant asserts rights. The existence of the “.biz” generic top-level domain (“gTLD”) in the disputed domain name is not a factor for purposes of determining that a disputed domain name is not identical to the mark in which the Complainant asserts rights.
Complainant has established its rights in the BODYCARE mark through international registration and subsequent continuous use.
Respondent’s <bodycare.biz> domain name is identical to Complainant’s BODYCARE mark. Respondent’s disputed domain name mirrors Complainant’s mark in its entirety, reflecting identical spelling and form.
Accordingly, the Panel finds that STOP Policy ¶ 4(a)(i) has been satisfied.
Respondent has failed to present a Response in this proceeding. Therefore, it is presumed that Respondent lacks rights and legitimate interests in the <bodycare.biz> domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). Furthermore, because Respondent failed to submit a Response the Panel is permitted to make all inferences in favor of Complainant. 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”).
It is not apparent to the Panel that Respondent has rights in the <bodycare.biz> domain name. Respondent has not come forward to proffer any evidence that it has rights or legitimate interests in the BODYCARE mark anywhere in the world. Therefore, Respondent has failed to establish rights in the domain name pursuant to the threshold established by STOP Policy ¶ 4(c)(i). See Nat’l Acad. Of Recording Arts & Sci Inc. v. Lsites, FA 103059 (Nat. Arb. Forum Feb. 11, 2002) (finding that, because Respondent did not come forward with a Response, the Panel could infer that it had no trademark or service marks identical to <grammy.biz> and therefore had no rights or legitimate interests in the domain name).
Respondent has yet to develop a website or purpose in conjunction with the disputed domain name. The burden of proof lies with Respondent in producing reliable and credible evidence that Respondent registered the disputed domain name for a legitimate purpose, since one is not apparent to the Panel. Respondent’s failure to support its registration by showing it has demonstrable preparations to use the domain in connection with a bona fide offering of goods or services implies that Respondent has no rights or legitimate interests under STOP Policy ¶ 4(c)(ii). See Gene Logic Inc. v. Bock, FA 103042 (Nat. Arb. Forum Mar. 4, 2002) (finding that in order to show rights or legitimate interests in the disputed domain name Respondent must establish with valid evidence “a course of business under the name, or at least significant preparation for use of the name prior to learning of the possibility of a conflict” with an IP Claimant); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that absent evidence of preparation to use the domain name for a legitimate purpose, the burden of proof lies with the Respondent to demonstrate that it has rights or legitimate interests).
There is no evidence or information before this Panel that suggests Respondent is known as BODYCARE or by its <bodycare.biz> domain name pursuant to STOP Policy ¶ 4(c)(iii). Respondent is only known to this Panel as More Virtual Agency Group or Tumm Aust. 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 Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).
Accordingly, the Panel finds that Respondent has failed to demonstrate its rights to and legitimate interests in the <bodycare.biz> domain name. Thus, STOP Policy ¶ 4(a)(ii) has been satisfied.
Due to the nature of NeuLevel’s STOP registration procedure, Respondent had actual notice of Complainant’s preexisting rights in the BODYCARE mark. Respondent’s registration of the disputed domain name, despite knowledge of Complainant’s rights in the mark, represents bad faith registration under STOP Policy ¶ 4(a)(iii). The unique nature of NeuLevel’s STOP registration procedure precludes an assumption of good faith registration when Respondent does not have rights or legitimate interests in the domain name. See Gene Logic Inc. v. Bock, FA 103042 (Nat. Arb. Forum Mar. 4, 2002) (finding that the unique nature of the STOP Policy and the notice given to Respondent regarding existing IP Claims identical to its chosen domain name precluded good faith registration of <genelogic.biz> when Respondent registered it with “full knowledge that his intended business use of this domain name was in direct conflict with a registered trademark of a known competitor in exactly the same field of business”); see also Valspar Sourcing, Inc. v. TIGRE, FA 112596 (Nat. Arb. Forum June 4, 2002) (“Respondent was on notice of Complainant’s rights in PAINT.BIZ when it registered the disputed domain name, because Respondent received notice of Complainant’s IP Claim. Respondent’s registration of the disputed domain name despite this notice when Respondent had no right or legitimate interest in the domain name is evidence of bad faith”); see also Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (evidence of bad faith includes actual or constructive knowledge of commonly known mark at the time of registration).
Additionally, Respondent’s registration of a domain name that is identical to Complainant’s mark will eventually lead to user confusion, resulting in Respondent attracting Internet users searching for Complainant’s products and services. Respondent does not have rights or legitimate interests in the <bodycare.biz> domain name, which implies Respondent had opportunistic motives in registering the domain. Respondent’s actions evidence bad faith under STOP Policy ¶ 4(b)(iv). See Pillsbury Co. v. Prebaked Scandinavia ab, FA 102970 (Nat. Arb. Forum Jan. 31, 2002) (finding registration of a domain name identical to Complainant’s mark to be in bad faith under STOP Policy ¶ 4(b)(iv) when use of the domain name would likely cause confusion as to the affiliation between Respondent and Complainant); see also Fluor Corp. v. Song, FA 102757 (Nat. Arb. Forum Jan. 31, 2002) (finding that, where the Respondent’s <fluor.biz> domain name was identical to the Complainant’s FLUOR mark, Internet users would likely believe an affiliation exists between Respondent and Complainant).
The Panel finds that STOP Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the STOP Policy, the Panel concludes that relief should be hereby GRANTED.
Accordingly, it is Ordered that the <bodycare.biz> domain name be TRANSFERRED from Respondent to Complainant and that subsequent challenges under the STOP Policy against this domain name SHALL NOT be permitted.
Judge Harold Kalina (Ret.), Panelist
Dated: July 18, 2002
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