Caja de Ahorros Municipal de Burgos v. Pablo Iglesias Junco
Case No. D2007-1548
1. The Parties
The Complainant is Caja de Ahorros Municipal de Burgos, Burgos, Spain, represented by Landwell-PricewaterhouseCoopers, Spain
The Respondent is Pablo Iglesias Junco, Madrid, Spain.
2. The Domain Name and Registrar
The disputed domain name <cajadeburgos.com> is registered with Blue Razor Domains, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 18, 2007. On October 19, 2007, the Center transmitted by email to Blue Razor Domains, Inc. a request for registrar verification in connection with the domain name at issue. On October 20, 2007, Blue Razor Domains, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint 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 the Respondent of the Complaint, and the proceedings commenced on October 25, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was November 14, 2007. The Respondent did not submit a formal response. Accordingly, the Center notified the Respondent’s default on November 15, 2007.
The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on November 22, 2007. The Panel finds that it was properly constituted. The Panel has submitted the 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
The Complainant is the legal holder of 31 industrial property rights registered as brand names, trade names and establishment rights containing the “Caja De Burgos” expression and which essential part of those rights appears to be such expression. However, only the trademarks rights are to be found within the scope of the Policy and therefore to be taken into account in this case. It is the clear language of the Policy that this administrative proceeding does only apply to disputes involving trademarks or service marks, but does not offer relief to holders of trade names, company names or any other commercial designations. As a result, in the event of abuse, holders of these rights are required to defend their legal rights through national judicial systems. (See The Recognition of Rights and the Use of Names in the Internet Domain Name System, Report of the Second WIPO Internet Domain Name Process, September 3, 2001, http://wipo2.wipo.int, at 138, in the following “Final Report”, at 21 et seq. and 138).
5. Parties’ Contentions
A. Complainant
The Complainant claims that the disputed domain name is identical to the Complainant’s trademark CAJA DE BURGOS which has permanent presence in the Spanish financial world.
In respect the Respondent’s lack of rights and legitimate interests over the disputed domain name, the Complainant declares that the Respondent does not carry any activity related to savings banks or any other activity related with the term “Caja”, is not the owner of any industrial property rights that protects the denomination “Caja de Burgos” and has no authorisation from the Complainant to use its intellectual rights as a domain name.
Finally, the Complainant is convinced that the disputed domain name has been registered and is used in bad faith since the website resolves to different services offered by competitors of the Complainant. The Complainant also alleges that the Respondent knew the existence and identity of the Complainant when registering the domain name due to the notoriety of its trade marks.
B. Respondent
Other than a brief email communication sent by the Respondent to the Complainant’s representative on October 31, 2007 (which did not specifically address the Complainant’s contentions), the Respondent did not formally reply to the Complainant.
6. Discussion and Findings
In order for the Panel to decide to grant the remedy of transfer of a domain name to a complainant under the Policy it is necessary that the Complainant must prove, as required by Paragraph 4(a) of the Policy, that:
(i) the contested domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
The fact that the Respondent has not provided a formal Response to the Complaint does not relieve the Complainant of the burden of proving its case. In the absence of a Response, Paragraph 5(e) of the Rules expressly requires the Panel to “decide the dispute based upon the complaint”. Under Paragraph 14(a) of the Rules in the event of such a “Default” the Panel is still required “to proceed with a decision on the complaint”, whilst under Paragraph 14(b) of the Rules it “shall draw such inferences there from as it considers appropriate”. This dispute resolution procedure is accepted by the domain name registrant as a condition of registration. Therefore, a registrant should not gain any evidentiary benefit from its failure to participate.
Thus where a party fails to present evidence in its control, the Panel may draw adverse inferences regarding those facts. (See Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques,
WIPO Case No. D2000-0004; State of Wisconsin v. Pro-Life Domains, Inc.,
WIPO Case No. D2003-0432). Here, since the Respondent has defaulted, it is appropriate to accept the facts asserted by the Complainant and to draw adverse inferences of fact against Respondent.
A. Identical or Confusingly Similar
The Complainant has made continuous use of its registered and incontestable marks since 1994 thus, has spent much time, money and effort promoting the mark and has established significant goodwill.
The disputed domain name incorporates the Complainant’s entire trademark so the disputed domain name is therefore identicial to Complainant’s registered and incontestable mark.
The Panel therefore concludes that the Complainant has satisfied the requirements of Paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Respondent has filed no formal response to the Complaint, and thus has made no assertion of interest in the domain name as provided for in Paragraph 4(c) of the Policy. As stated by previous and numerous WIPO UDRP Decisions the burden of proof shifts where the Complainant presents a prima facie showing, as has occurred in the instant case.
No evidence that is before this Panel suggests that the Respondent has any rights or legitimate interests in the domain name: The Respondent is not known by the disputed domain name, nor the Complainant has granted any license or authority to use the Complainant’s trademark, neither the Respondent has made a legitimate noncommercial or fair use of the domain name as it appears to the Panel that the Respondent profits from click-through revenues generated from its website’s offering of advertising and hyperlinks which are generated through an advertising aggregation service.
The Panel notes that it is appropriate under Paragraph 15(a) of the Rules that the Panel should look at principles of law it deems applicable. This Panel considers Spanish law to be applicable since both parties are domiciled in Spain (La Caixa D’Estalvis I Pensions de Barcelona v. Molina Georgesen,WIPO Case No. D2006-1615). In this case, although it is not strictly necessary, because the Panel finds that the Complainant succeeds in terms of the Policy, this Panel believes that Article 34 of the Spanish Trademark Law is also applicable.
The Panel thus finds that the Respondent does not have any rights or legitimate interests in the domain name in question.
C. Registered and Used in Bad Faith
The Panel considers that the Respondent’s actions demonstrate that it has registered and is using the disputed domain name in bad faith in terms of Paragraph 4(b)(iv) of the Policy.
In the absence of a formal response from the Respondent, the Panel considers that the clear inference to be drawn is that the Respondent registered the domain name for the purpose of attracting Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark. Certainly, due to the notoriety of the Complainant’s trademark there appears to be no reason for the Respondent to have selected the domain name <cajadeburgos.com>, other than to trade off the Complainant’s reputation.
It is clear from the Complainant’s evidence that the disputed domain name was used in the manner alleged by the Complainant. The domain name resolves to an advertising aggregation service where the Respondent is in fact offering financial services from other competitors.
The Panel therefore finds the domain name has been registered and is being used in bad faith.
7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <cajadeburgos.com> be transferred to the Complainant.
Manuel Moreno-Torres Sole Panelist
Dated: December 5, 2007
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