Complainants are Traditional Tuscany and Traditional Tuscany Limited, both of United Kingdom of Great Britain and Northern Ireland, represented by the law firm Ward Gethin, United Kingdom of Great Britain and Northern Ireland.
Respondent is Maria Concetta de Concini, Pistoia, Italy.
2. The Domain Name and Registrar
The disputed domain name is <traditional-tuscany.com> and is registered
with Tuonome.it.srl.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 28, 2006. On August 8, 2006, the Center transmitted by email to Tuonome.it.srl a request for registrar verification in connection with the domain name at issue. After numerous requests by the Center, on September 28, 2006, Tuonome.it.srl transmitted by email to the Center its verification response confirming that Respondent Maria Concetta De Concini is listed as the registrant and providing the contact details for the administrative, billing, and technical contact.
In response to two notifications by the Center that the Complaint was administratively deficient, Complainants filed their first amendment to the Complaint on October 6, 2006 (hard copy October 9, 2006), and their second amendment to the Complaint on October 10, 2006 (hard copy October 17, 2006).1 The Center verified that the Complaint as eventually amended satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 12, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was November 1, 2006. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 6, 2006.
The Center appointed Richard G. Lyon as the Sole Panelist
in this matter on November 17, 2006. The Panel finds that it was properly constituted.
The Panel has submitted his Statement of Acceptance and Declaration of Impartiality
and Independence, as required by the Center to ensure compliance with the Rules,
paragraph 7.
4. Factual Background
There is very little evidence in this proceeding from which the Panel can deduce the factual circumstances underlying the Complaint.
In each of the operative paragraphs of the Complaint, Complainants’ representative, rather than pleading facts from which the Panel could make the necessary finding, simply states “See attached”. Attached as exhibits to the Complaint are an unsigned, unsworn statement (the contents of which are discussed further under Section 5 below), a “Minute of Agreement” between a Mr. and Mrs. Gunn and Philippa and Jill Smith under which the Smiths acquired “the trading name ‘Traditional Tuscany’ and the said name in any logo relative thereto” from the Gunns; and a schedule to this Minute listing various properties in “the Traditional Tuscany portfolio”. According to the statement this Minute was filed in the Books of Council and Session in Edinburgh, Scotland.
The Registrar’s verification response to the
Center indicates that Respondent first registered the disputed domain name on
February 13, 2004. Printouts of Respondent’s web page maintained at the
disputed domain name2 indicate
that Respondent is a competitor of Complainants. These web pages, which were
accessed in October 2006, list farm houses, bed and breakfast establishments,
apartments, and villas in Tuscany that are offered for vacation rentals, and
also include links to other vacation-related activities (boar hunting, for example)
offered through the website.
5. Parties’ Contentions
A. Complainants
The unsigned, unsworn statement accompanying the Complaint includes the following argument:
Complainants and their predecessors in interest have made use of the “Traditional Tuscany” name and mark since 19883 to offer holiday villas and apartments and other travel-related goods and services in Italy. Complainants ply this trade at their website located at “www.traditionaltuscany.co.uk”.4 By virtue of this, Complainants have “intellectual property rights” (unspecified) in the phrase Traditional Tuscany. Respondent uses the disputed domain name to offer holiday villas and apartments throughout Italy and is, therefore, a competitor of Complainants. According to the unsigned, unsworn statement, “We feel this constitutes trademark and service mark infringement”.
Rights or legitimate interests. Except for the statement quoted in the preceding sentence, nowhere do Complainants allege facts that will allow the Panel to conclude that Respondent has no rights or legitimate interests in the disputed domain name.
Bad faith. Similarly, except for the quoted statement there is no factual allegation that would support Complainants’ desired conclusion of that Respondent registered the disputed domain name and used it in bad faith.
B. Respondent
Respondent did not reply to Complainants’ contentions.
6. Discussion and Findings
Complainants have provided no evidence of a registered trademark or service mark, and thus pitches its Complaint on what in the United States would be referred to as common law trademark rights. The only “evidence” of use of Traditional Tuscany by Complainants or their predecessors are statements in the unsigned, unsworn declaration, presumably from Complainants’ counsel, that Complainants and their predecessor have operated a vacation booking business using this name since 1988 and that the name “is recognized by the Italian tourist board as trading under the name Traditional Tuscany”.
The Policy requires that a complainant prove each
of its elements not merely with assertions in a complaint but evidence to support
them. See Sales Wanted, Inc. v. Michael Tate, Matthew Perlman, E-Magine Networks,
Incorporated, WIPO Case No. D2004-1033.
Statements of counsel are not evidence. Complainants’ submission on this
element of the Policy is little more than a rote recital of paragraph 4(a)(i)
of the Policy. It is clearly inadequate as proof.
Even if the Panel were to accept Complainants’
unsigned, unsworn declaration as evidence on the notion, accepted by some Panels,
that a default entitles a Panel to assume as true all facts pleaded in the complaint,5
there is no evidence at all, and barely an allegation, that Respondent lacks
rights or legitimate interest in the disputed domain name or registered or used
it in bad faith. The only evidence in the record suggests the contrary, that
Respondent has been using the disputed domain name since February 2004 (more
than two years prior to any notice of this dispute) for a legitimate offering
of goods or services.6 There
is no proof, indeed no allegation, that Respondent knew of Complainants’
“mark” when she registered the disputed domain name, and no proof
or allegation of facts from which the Panel could infer that she had such knowledge.
Complainants’ “mark” is unregistered, descriptive, and (so
far as the record shows) used in a country other than where Respondent resides.
The printouts of Respondent’s web pages show only that Respondent selected
a descriptive name for her Italian-based company that was coincidentally identical
to the name used by Complainants for their United Kingdom-based company, and
that the parties compete with each other. Complainants have not proven that
Respondent lacks rights or legitimate interests in the disputed domain name,
or that she registered or used it in bad faith.
7. Decision
For the foregoing reasons, the Complaint is denied.
Richard G. Lyon
Sole Panelist
Dated: November 21, 2006
1 All references to the Complaint in this opinion are to the Complaint as amended.
2 These pages were accessed by the Center during the course of its Formal Requirements Compliance Check and Notification of Complaint procedures.
3 There are no facts stated showing anyone’s use of this name prior to 1998, the date of the Minute.
4 The Panel’s review of Complainants’ website confirms that Complainants today do offer these services under this name.
5 See, e.g., Randstad
General Partner (U.S.), LLC v. Domains For Sale For You, WIPO
Case No. D2000-0051. The Consensus View, to which the undersigned subscribes,
is that a default does not automatically result in a decision for complainant.
See “WIPO
Overview of WIPO Panel Views on Selected UDRP Questions”, ¶4.6:
“ . . . the complainant must establish each of the three elements required
by paragraph 4(a) of the UDRP”.
6 As noted above, Complainants submitted no evidence at all of Respondent’s use of the disputed domain name.
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