Complainant is Katsuyama Europe S.A., Barcelona, SPAIN ("Complainant"). Respondent is Jorge Valsells Montagut, Barcelona, SPAIN ("Respondent").

The domain name at issue is <skygondola.com>, registered with Network Solutions.

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.

James A. Carmody, Esq., as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on August 20, 2001; the Forum received a hard copy of the Complaint on August 20, 2001.

On August 21, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name <skygondola.com> is registered with Network Solutions and that Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 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 August 28, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 17, 2001 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@skygondola.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 October 2, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James A. Carmody, Esq. 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

(b.) The Respondent has never had, at anytime, a right over the name he registered. Furthermore, the Respondent has never used the domain name subject of this complaint.

(c.) The domain name has been registered and being used in bad faith.

B. Respondent

No response was submitted by the Respondent.

The Complainant has used the mark SKYGONDOLA to promote its products since its incorporation September, 14, 1999. The Complainant's goods have been promoted by catalogs, brochures, labels, commercial mailings, magazine advertisements, CD-Rom and promotional videotape.

Complainant applied for registration of the mark, as a regional (Spanish) trademark. Such application was published in the Boletín Oficial de la Propiedad Industrial on July, 16, 2000. The acceptance of the application was communicated to the Complainant on December, 12, 2000. The SKYGONDOLA trademark was approved to identify the following products: winches, couplings and carrying devices, pulleys, and hoists.

The domain name was registered on June 19, 2000, and Respondent never developed a website in connection with the 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 the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the 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 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.

Through its regional trademark registration, Complainant has sufficiently satisfied its rights in the SKYGONDOLA mark. The domain name registered by the Respondent is identical to the SKYGONDOLA trademark owned by the Complainant. See Coty Cosmetics Inc. v. Jaguar Ltd., AF-0416 (eResolution Oct. 24, 2000) (finding that the domain name <vanillafields.com> is identical in use to the registered Trademarks owned by Complainant).

Based on the above, the Panel determines that the elements set forth in Policy ¶ 4(a)(i) have been established.

There is neither a right nor a legitimate interest under the registration and use of the domain name by the Respondent. There has been no evidence that a website or other on-line presence is in the process of being established using such domain name. There has never been any evidence of advertising, promotion, or display to the public in connection with the domain name. In short, there is no positive action being undertaken by the Respondent in relation to the domain name. In addition, the Respondent has not come forth to offer any legitimate right or interest in the domain name. As such, the Panel concludes that the Respondent cannot claim rights in the mark under Policy ¶ 4(c)(i) – (iii). See e.g., Nike, Inc. v. Crystal Int’l, D2001-0102 (WIPO Mar. 19, 2001) (finding no rights or legitimate interests where Respondent made no use of the infringing domain names).

The Panel concludes that the elements set forth in Policy ¶ 4(a)(ii) have been established.

The Complainant and the Respondent are competitors, both of them trade in the same product within the same market.

The passive way in which the Respondent possesses the domain name evidences that it has been registered and used in bad faith. Similar cases have been decided in as violations of the Policy. See e.g., 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 paragraph 4(a)(iii) of the Policy).

In conclusion, given that the Respondent and Complainant are competitors in the same market area, the Panel can only conclude that the Respondent registered and used the domain name to disturb the commercial activity of the Complainant by preventing him from using the domain name. See Lubbock Radio Paging v. Venture Tele-Messaging, FA 96102 (Nat. Arb. Forum Dec. 23, 2000) (concluding that domain names were registered and used in bad faith where Respondent and Complainant were in the same line of business in the same market area); see also Body Shop Int’l PLC v. CPIC NET & Hussain, D2000-1214 (Nov. 26, 2000) (finding bad faith where (1) Respondent failed to use the domain name and (2) it is clear that Respondent registered the domain name as an opportunistic attempt to gain from the goodwill of the Complainant).

Given the above, the Panel resolves that the domain name was registered and used in bad faith, as required by Policy ¶ 4(a)(iii).

Having established all three elements required under the ICANN Policy, the Panel concludes that the requested relief shall be hereby granted.

Accordingly, it is Ordered that the domain name <skygondola.com> be transferred from Respondent to Complainant.