Caixa Popular,
Sociedad Cooperativa de Credito v. Albert Inc.
Claim
Number: FA0302000146635
Complainant is Caixa Popular,
Sociedad Cooperativa de Credito, Valencia,
SPAIN (“Complainant”) represented by Vicente Chirivella, of Servitel SL. Respondent is Albert Inc., TX, USA (“Respondent”).
REGISTRAR AND
DISPUTED DOMAIN NAME
The domain name at issue is <caixapopular.com>, registered with Iholdings.Com, Inc. d/b/a
Dotregistrar.Com.
The undersigned certifies that she has acted independently
and impartially and to the best of 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 February 25, 2003;
the Forum received a hard copy of the Complaint on February 25, 2003.
On March 3, 2003, Iholdings.Com, Inc. d/b/a
Dotregistrar.Com confirmed by e-mail to the Forum that the domain name <caixapopular.com> is registered with
Iholdings.Com, Inc. d/b/a Dotregistrar.Com and that Respondent is the current
registrant of the name. Iholdings.Com, Inc. d/b/a Dotregistrar.Com has verified
that Respondent is bound by the Iholdings.Com, Inc. d/b/a Dotregistrar.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 March 3, 2003, a Notification of Complaint and
Commencement of Administrative Proceeding (the "Commencement
Notification"), setting a deadline of March 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@caixapopular.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 April 1, 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 <caixapopular.com> domain name is
identical to Complainant’s CAIXA POPULAR mark.
2. Respondent does
not have any rights or legitimate interests in the <caixapopular.com> domain name.
3. Respondent
registered and used the <caixapopular.com>
domain name in bad faith.
B. Respondent
failed to submit a Response in this proceeding.
Complainant holds a trademark registration in Spain for CAIXA POPULAR (Reg.
No. 1,175,302). Complainant’s mark was
registered on May 14, 1990. Complainant
uses the CAIXA POPULAR mark in relation to its services as a credit
cooperative.
Respondent, Albert Inc., registered the <caixapopular.com> domain name on January 27, 2003. After registering the domain name,
Respondent immediately began to offer the domain name registration for sale at
<esedox.com> for 18.000 Euros.
Respondent has made no other use of the disputed domain name.
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 that it has rights in the CAIXA POPULAR mark
through its trademark registration in Spain.
Respondent’s <caixapopular.com>
domain name is identical to Complainant’s CAIXA POPULAR mark because it
incorporates Complainant’s entire mark and merely adds the top-level domain
“.com.” The addition of a top-level
domain does not add any distinct characteristics because it is a required
element of every domain name. 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
Rollerblade, Inc. v. McCrady,
D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name
such as “.net” or “.com” does not affect the domain name for the purpose of
determining whether it is identical or confusingly similar).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Respondent has failed to submit a Response in this
proceeding. Thus, 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) (failure to respond allows all reasonable
inferences of fact in the allegations of Complainant to be deemed true); see also 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”).
Moreover, Respondent has failed to invoke any circumstances that could
demonstrate rights and legitimate interests in the domain name. When Complainant asserts a prima facie case against Respondent, the
burden of proof shifts to Respondent to show that it has rights or legitimate
interests pursuant to Policy ¶ 4(a)(ii).
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 Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000)
(finding that by not submitting a response, the Respondent has failed to invoke
any circumstance that could demonstrate any rights or legitimate interests in
the domain name).
Respondent has made no use of the <caixapopular.com>
domain name other than to attempt to sell the registration for profit. When the only use of a domain name is to attempt
to sell its registration for profit this use does not constitute a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See J.
Paul Getty Trust v. Domain 4 Sale & Co., FA 95262 (Nat. Arb. Forum
Sept. 7, 2000) (finding rights or legitimate interests do not exist when one
has made no use of the websites that are located at the domain names at issue,
other than to sell the domain names for profit); see also Hewlett-Packard Co.
v. High Performance Networks, Inc., FA 95083 (Nat. Arb. Forum July 31,
2000) (finding no rights or legitimate interests where Respondent registered
the domain name with the intention of selling its rights).
Respondent is known to the Panel as Albert Inc. There is no evidence on record to establish that it is commonly
known as CAIXA POPULAR or <caixapopular.com>. Thus, the Panel infers that Respondent does
not have any rights or legitimate interests in the <caixapopular.com> domain name pursuant to Policy ¶
4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10,
2003) (stating “nothing in Respondent’s WHOIS information implies that
Respondent is ‘commonly known by’ the disputed domain name” as one factor in
determining that Policy ¶ 4(c)(ii) does not apply); see also 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).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent offered the <caixapopular.com>
domain name registration up for sale immediately after Respondent registered
the domain name. Respondent is selling
the domain name registration for 18,000 Euros, at <esedox.com>, a website
that features numerous domain name registrations for sale. Registration of a domain name primarily for
the purpose of selling its registration for profit is evidence of bad faith
registration and use pursuant to Policy ¶ 4(b)(i). See Wembley Nat’l Stadium
Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding bad faith based
on the apparent willingness of the Respondent to sell the domain name in issue
from the outset, albeit not at a price reflecting only the costs of registering
and maintaining the name); see also Randstad Gen. Partnet, LLC v. Domains For
Sale For You, D2000-0051 (WIPO Mar. 24, 2000) (finding bad faith where the
Respondent offered the domain name for sale on its website <internetdomains4u.com>
for $24,000).
Thus, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under ICANN Policy, the
Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <caixapopular.com>
domain name be TRANSFERRED from
Respondent to Complainant.
Sandra Franklin,
Panelist
Dated: April 14, 2003
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