Brantano NV v.
Amiso SA Axel Mees
Claim
Number: FA0301000143681
Complainant is
Brantano NV, Erembodegem, BELGIUM (“Complainant”). Respondent is
Amiso SA Axel Mees, Alsemberg, BELGIUM (“Respondent”).
REGISTRAR
AND DISPUTED DOMAIN NAME
The
domain name at issue is <brantano.info>, registered with NAMEBAY.COM.
The
undersigned certifies that he or she has acted independently and impartially
and to the best of his or her knowledge has no known conflict in serving as
Panelist in this proceeding.
Sandra
Franklin as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum (the "Forum")
electronically on January 28, 2003; the Forum received a hard copy of the
Complaint on January 29, 2003.
On
February 3, 2003, NAMEBAY.COM confirmed by e-mail to the Forum that the domain
name <brantano.info> is registered with NAMEBAY.COM and that
Respondent is the current registrant of the name. NAMEBAY.COM has verified that
Respondent is bound by the NAMEBAY.COM 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 3, 2003, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of February 24, 2003 by which Respondent could file a Response to
the Complaint, was 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@brantano.info 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
February 28, 2003, pursuant to Complainant's request to have the dispute
decided by a single-member Panel, the Forum appointed Sandra Franklin 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.
Complainant
requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <brantano.info>
domain name is identical to Complainant’s BRANTANO mark.
2. Respondent does not have any rights or
legitimate interests in the <brantano.info> domain name.
3. Respondent registered and used the <brantano.info>
domain name in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant
has presented evidence that it has international trademark registrations with
regard to the BRANTANO mark in several countries, including Europe, the
Republic of South Africa and Canada. Complainant uses the BRANTANO mark in
relation to the sale and production of boots, shoes and other goods.
Respondent
registered the disputed domain name on September 19, 2001. Respondent has not
answered Complainant’s mails or telephone calls. Respondent lives in the same
city in which Complainant’s CEO used to live.
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 Complainant's 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 Complainant must 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 Respondent
is identical or confusingly similar to a trademark or service mark in which
Complainant has rights; and
(2) 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.
Complainant has
established rights in the BRANTANO mark through international trademark
registrations in several countries.
Respondent’s <brantano.info>
domain name is identical to Complainant’s mark because the disputed domain name
incorporates the entire mark and merely adds the generic top-level domain
“.info.” The addition of a top-level domain is not sufficient for the disputed
domain name to survive a Policy ¶ 4(a)(i) challenge. See Pomellato S.p.A v. Tonetti, D2000-0493
(WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s
mark because the generic top-level domain (gTLD) “.com” after the name
POMELLATO is not relevant); see also
Blue Sky Software Corp. v. Digital Sierra Inc., D2000-0165 (WIPO Apr. 27,
2000) (holding that the domain name <robohelp.com> is identical to
Complainant’s registered ROBOHELP trademark, and that the "addition of
.com is not a distinguishing difference").
Accordingly, the
Panel finds that Complainant has established Policy ¶ 4(a)(i).
Respondent has
not submitted a Response for the Panel to consider in this proceeding.
Therefore, the Panel is permitted to accept all reasonable allegations and
inferences in the Complaint as true. See Vertical Solutions Mgmt., Inc. v.
webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding
that Respondent’s failure to respond allows all reasonable inferences of fact
in the allegations of Complainant to be deemed true); see also Desotec N.V. v. Jacobi Carbons AB,
D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a
presumption that Complainant’s allegations are true unless clearly contradicted
by the evidence).
Furthermore,
based on Respondent’s failure to respond, the Panel may presume that Respondent
lacks any rights or legitimate interests in the disputed domain name. See Do
The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding
that once Complainant asserts that Respondent has no rights or legitimate
interests with respect to the domain, the burden shifts to Respondent to
provide credible evidence that substantiates its claim of rights and legitimate
interests in the domain name); see also Ziegenfelder Co. v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14,
2000) (drawing two inferences based on the Respondent’s failure to respond: (1)
the Respondent does not deny the facts asserted by the Complainant, and (2) the
Respondent does not deny conclusions which the Complainant asserts can be drawn
from the facts).
There is no
content at the <brantano.info> domain name at this juncture. UDRP
proceedings have consistently found that passive holding is neither a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate
noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Pharmacia & Upjohn AB v. Romero,
D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests
where Respondent failed to submit a Response to the Complaint and had made no
use of the domain name in question); see also Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244
(WIPO Nov. 11, 2000) (finding that “merely registering the domain name is not
sufficient to establish rights or legitimate interests for purposes of
paragraph 4(a)(ii) of the Policy”).
Respondent has
proffered no proof and there is no evidence in the record to establish that
Respondent is commonly known by BRANTANO or <brantano.info>.
Therefore, Respondent has not established that it has any rights or legitimate
interests in the disputed domain name. 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 Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum
Feb. 5, 2001) (finding no rights or legitimate interests because Respondent is
not commonly known by the disputed domain name or using the domain name in
connection with a legitimate or fair use).
Accordingly, the
Panel finds that Complainant has established Policy ¶ 4(a)(ii).
At this time,
there is no content at the <brantano.info> domain name.
Respondent’s passive holding of the disputed domain name satisfies the bad
faith requirement of Policy ¶ 4(a)(iii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228
(WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name
without active use can constitute use in bad faith); see also DCI S.A. v. Link Commercial Corp.,
D2000-1232 (WIPO Dec. 7, 2000) (concluding that the Respondent’s passive
holding of the domain name satisfies the requirement of ¶ 4(a)(iii) of the
Policy).
Furthermore,
Complainant recently brought a similar administrative proceeding against
Respondent with regard to the <brantano.biz> domain name. See Brantano
NV v. Amiso SA, FA 102812 (Nat. Arb. Forum Feb. 25, 2002). Respondent has
demonstrated a pattern of registering domain names that prevent Complainant
from reflecting its trademark in a corresponding domain name, which is evidence
of bad faith pursuant to Policy ¶ 4(b)(ii). See YAHOO! Inc. v. Syrynx, Inc., D2000-1675 (WIPO Jan. 30, 2001) (finding a bad
faith pattern pursuant to Policy ¶ 4(b)(ii) in Respondent's registration of two
domain names incorporating Complainant's YAHOO! mark); see also Armstrong Holdings, Inc. v. JAZ Assoc.,
FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the Respondent has
registered numerous domain names that infringe upon the Complainant’s marks).
Accordingly, the
Panel finds that Complainant has established Policy ¶ 4(a)(iii).
Having
established all three elements required under ICANN Policy, the Panel concludes
that relief shall be GRANTED.
Accordingly, it
is Ordered that the <brantano.info> domain name be TRANSFERRED
from Respondent to Complainant.
Sandra Franklin, Panelist
Dated:
March 6, 2003
Click Here to return
to the main Domain Decisions Page.
Click Here to return to our Home
Page