INACAP - Instituto Nacional de Capacitacion Profesional v. Patricio Ojeda
Claim Number: FA0007000095163
The Complainant is INACAP - Institutp Nacional de Capacitacion Profesional, Santiage, Chile ("Complainant"). The Respondent is Patricio Ojeda, Loncoche, Chile ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME(s)
The domain name at issue is "INACAP.COM", registered with Network Solutions Inc. ("NSI").
The Panelist 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 the panelist in this proceeding.
Hon. James A. Carmody, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum ("The Forum") electronically on July 10, 2000; The Forum received a hard copy of the Complaint on July 10, 2000.
On July 12, 2000, NSI confirmed by e-mail to The Forum that the domain name INACAP.COM" is registered with NSI and that the Respondent is the current registrant of the name. NSI has verified that Respondent is bound by the Network Solutions Service Agreement Version 5.0 and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s UDRP.
On July 14, 2000, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 3, 2000 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via email, post and fax, and to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts by email.
On August 7, 2000, 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 August 7, 2000, pursuant to Complainant’s request to have the dispute decided by a Single Member panel, The Forum appointed the Hon. James A. Carmody as Panelist.
Having reviewed the communications records in the case file, the Administrative Panel (the "Panel") finds that The Forum has discharged its responsibility under Paragraph 2(a) of the Uniform 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 the Respondent.
The Complainant requests that the domain name be transferred from the Respondent to the Complainant.
The Complainant contends that the Respondent has registered a domain name that is identical to and confusingly similar to its trademark registered for and in use by the Complainant. Further, the Complainant contends that the Respondent has no rights or legitimate interests to the domain name, and that the respondent has registered and is using the domain name in bad faith.
The Complainant contends that the Respondent registered the domain name to mislead Internet users and tarnish its reputation.
The Respondent submitted no response in this matter. Accordingly, the allegations of the Complainant will be deemed to be true.
The Complainant is a Chilean higher education institution, established in 1966. The Complainant currently serves more than 45,000 students in 26 locations throughout Chile and covering ten different areas of knowledge. The Complainant’s students can access post-graduate courses in countries such as the United States, Japan, and France. The Complainant owns the domain names <inacap.cl>, <inacap.org>, <inacap,net>, and <inacap.edu>.
The Complainant owns the Chilean trademark registration for the mark "Instituto Nacional de Capacitacion Profesional."
The Respondent registered the domain name in question on May 1, 2000. On the website that corresponds to the domain name, the Respondent has copied the Complainant’s website but has made slight alterations. For example, the Respondent changed the logo from "INACAP" to "INCAPAZ", which means incompetent in Spanish. The Respondent also included links to pornographic material on the altered website. The Respondent’s website does not offer educational services.
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy") directs that the complainant must prove each of the following three elements to support a claim 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 Complainant has rights;
(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.
As a result of the Respondent’s failure to respond, all reasonable inferences of fact in the Complaint will be deemed true. 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").
Identical and/or Confusingly Similar
The Complainant has rights in the registered mark "Instituto Nacional de Capacitacion Profesional" and the abbreviation for its mark is "INACAP". The Respondent’s domain name is identical to and confusingly similar to the Complainant’s marks. See Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that the domain names <beanybaby.com>, <beaniesbabies.com>, <beanybabies.com> are confusingly similar to Complainant’s mark "Beanie Babies").
Rights or Legitimate Interests
The Complainant asserts that the Respondent has no rights or legitimate interests in the domain names in question. The Respondent has not denied that assertion.
The Respondent is not commonly known by a name that is identical to or similar to the domain name in question. Policy ¶ 4(c)(ii).
The Respondent has not used the domain name to offer bona fide goods or services. Policy ¶ 4(c)(i). The Respondent has not used the domain name to offer fair or legitimate noncommercial services. Policy ¶ 4(c)(iii). Instead, the Respondent is confusing Internet users by making slight, insulting alterations to the Complainant’s authentic site, but still keeping the look and feel of the Complainant’s website.
Based on the above, the panel concludes that the Respondent has no rights or legitimate interest in the domain name in question.
Registration and Use in Bad Faith
The Complainant asserts that the Respondent registered and used the domain name in bad faith. The Respondent has not denied that assertion.
The Respondent’s conduct clearly demonstrates bad faith under Policy ¶ 4(b)(iii), but for the fact that the Respondent does not appear to be a competitor of the Complainant.
The Policy lists circumstances showing bad faith; however, this list is not exclusive. See CBS Broadcasting, Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) ("[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith").
Making insulting changes to a duplicate of the Complainant’s authentic site and linking the site to pornographic material is evidence of bad faith. See Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that in absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith).
Based on the above, the panel concludes that the Respondent registered and used the domain name in bad faith.
Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the panel that the requested relief be granted.
Accordingly, for all of the foregoing reasons, it is ordered that the domain name, "INACAP.COM" be transferred from the Respondent to the Complainant.
James A. Carmody, Former Judge, Arbitrator
Dated: August 10, 2000
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