ADMINISTRATIVE PANEL DECISION
O2 Centro Wellness, S.L. v. DOMAIN DROP, S.A.
Case No. D2006 1469
1. The Parties
The Complainant is O2 Centro Wellness, S.L. of Barcelona, Spain, represented by Sugrañes, S.L., Spain.
The Respondent is DOMAIN DROP S.A., Charlestown, West Indies, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name is registered with DomainDoorman, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 15, 2006. On November 17, 2006, the Center transmitted by email to DomainDoorman, LLC a request for registrar verification in connection with the domain name at issue. On November 24, 2006, DomainDoorman, LLC transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant. In response to two notifications by the Center that the Complaint was administratively deficient, Complainant filed amendments to the Complaint on December 1, 2006 and December 12, 2006. The Center verified that the Complaint together with its amendments 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 December 13, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was January 2, 2007. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 5, 2007.
The Center appointed Roberto Bianchi as the sole panelist in this matter on January 15, 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
Complainant owns a chain of spas and sports centers known as “O2” and “O2 Centro Wellness”, located in several cities in Spain.
Complainant owns various 02 CENTRO WELLNESS marks issued by the Spanish Patent and Trademark Office, file No. M 2427039, filed January 19, 2004, and registered June 15, 2004 for the following classes and items: class 3: perfumes and cosmetic products, etc.; class 14: watches, jewels, etc.; class 18: bags, wallets, etc; class 24: textiles, etc.; class 25: clothes and garments, etc.; class 32: mineral waters and soft drinks, etc.; class 42: exploitation of sports premises, health clubs, gymnastics teaching, water gymnastics, etc.
Complainant also owns and operates the “02centrowellness.com”, “o2centrowellness.es”, “o2 welllness.com” and “o2 wellness.net” websites, some of which are linked to the active web pages of Complainant.
The disputed domain name was registered on June 19, 2006.
5. Parties’ Contentions
In summary, Complainant contends the following:
There is near identity between the domain name and Complainant’s mark. Omitting the second “s” in the name “o2centrowellnes” has no phonetic impact, is not significant and does not eliminate the identity with the previously registered sign. Suppressing the “s” is a mere strategy to obtain the domain name’s registration and provide it with a content that has pernicious objectives.
DOMAIN DROP S.A. lacks legitimacy to hold the domain name at issue since O2 CENTRO WELLNESS, S.L. is known in the Spanish market with the brands O2 and O2 Centro Wellness, which give their name to a number of prestigious “spas” and sports centers distributed throughout several Spanish cities. DOMAIN DROP S.A. does not make appropriate use of the domain name since it does not intend to offer products and services in good faith, rather merely to deviate consumers’ attention to its page with negative allusions to the represented company, O2 Centro Wellness, S.L.
There is a big difference between the right to express criticism and the right or legitimate interest over a domain name.
The registration of the domain name by DOMAIN DROP S.A. was done in bad faith, taking into consideration the renown of the brand O2 CENTRO WELLNESS and the content of Respondent’s Web page. The domain name has been registered fundamentally with a view to disturbing the business activity of O2 CENTRO WELLNESS, S.L., meeting the bad faith requirement established in the UDRP. DOMAIN DROP S.A. not only knew of the trademark O2 CENTRO WELLNESS, and its standing, but also expressly acknowledged it with the clear intention of bringing it into disrepute.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
In order to prevail, Complainant must prove that:
(i) The domain name is identical or confusingly similar to Complainant’s mark; and
(ii) 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.
A. Identical or Confusingly Similar
Complainant proved its rights in the O2 CENTRO WELLNESS mark. See 4 above. The domain name at issue is practically identical to such mark, except for the missing second “S” in “wellness”, and the deletion of the spaces between the words forming the domain name. Such differences, and the addition of the gTLD, are immaterial to distinguish the domain name from the mark. Therefore, the Panel concludes that the disputed domain name is confusingly similar to Complainant’s mark. Complainant, hence, has met the first requirement of the Policy to obtain the transfer of the domain name at issue.
B. Rights or Legitimate Interests
Whether the registrant of the domain name in dispute is an anonymous former employee of Complainant or a “sociedad anónima”, the Respondent cannot possibly be commonly known by the domain name <02centrowellnes.com>. The same applies to the present registrant. Thus, no rights or legitimate interests have vested upon Respondent; therefore, paragraph 4(c)(ii) of the Policy1 is not applicable here.
Complainant has submitted printouts of Respondent’s website linked to the domain name in dispute, showing texts in Spanish written in the first person, which disparage Complainant’s business and insult its staff. In these texts, an allegedly former employee of Complainant complains about having been unfairly treated and dismissed. The website also shows a photo of a young woman holding a board that states, “I prefer DIR. I went to O2 and I almost became a sucker.”2 Respondent, who is in default, did not contest the truthfulness or accuracy of these printouts.
The disparaging texts and photo certainly do not qualify as “a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue” (Policy paragraph 4(c)(iii)). Freedom of speech does not imply that Respondent may register Complainant’s mark as a domain name. See Monty and Pat Roberts, Inc. v. Bill Keith, WIPO Case No. D2000 0299 (“Respondent has the right to express its views concerning Complainant on the Internet (within the boundaries of laws relating to libel and similar causes of action) […] However, the right to express one’s views is not the same as the right to use another’s name to identify one’s self as the source of those views. One may be perfectly free to express his or her views about the quality or characteristics of the reporting of the New York Times or Time Magazine. That does not, however, translate into a right to identify one’s self as the New York Times or Time Magazine.”)
Nor is vengeance or resent an acceptable source of rights or legitimate interests in a domain name. See Tarjeta Naranja S.A. v. MrDominio.com and Alejandro San Jorge, WIPO Case No. D2001-0295, citing METRO BILBAO, S.A. v. Ignacio Allende Fernández, WIPO Case No. D2000-0467 at section 6.5 (c). A possible bona fide offering previous to the dispute (Policy paragraph 4(c)(i)) should also be excluded. It is clear that the author of the disparaging texts was not offering any goods or services bona fide. See Kingspan Group Plc and Kingspan Access Floors Limited v. Mark Thomas, WIPO Case No. D2005-0320 (by the action of registering the domain names as an “act of vengeance”, the respondent was found to have commenced the dispute and therefore could not have made a bona fide offering before this).
Thus, none of the circumstances listed in Policy paragraph 4(c)—indicating non exclusive evidences of rights or legitimate interests in a domain name—appear to be present in the instant case. An independent visit to Respondent’s website at “www.02centrowellnes.com” made by the Panel on January 18, 2007 excluded that the present use of the domain name may be a basis for Respondent’s rights or legitimate interests in the domain name. The visit resulted in only one active web page, containing the following “Popular Categories” of links to the websites of third parties: Travel, Financial, E Commerce, Lifestyle, Real Estate, Insurance, Business, Legal Help, Personal, Computers, Health Care, and Shopping. All these links lead to websites of a commercial nature. Thus, the present use of the domain name does not appear as non commercial or fair, but shows a clear intent for commercial gain by diverting consumers to commercial websites of third parties.
The Panel concludes that Respondent lacks rights or legitimate interests in the domain name. Therefore, Complainant has met the second requirement of the Policy to prevail in this dispute.
C. Registered and Used in Bad Faith
In this case, the same facts and circumstances that deprive Respondent of any possible right or legitimate interest in the domain name, also indicate that the domain name was registered and is being used in bad faith.
The author of the disparaging texts mentioned at subsection B above was evidently moved by vengeance or resent against Complainant and its staff. He or she also stated that the website would be the alternative website of “O2 Centro Werrness” (sic). Such purposes undoubtedly point to bad faith registration of the domain name. The misspelling of Complainant’s service mark (typosquatting) is also suggestive of bad faith registration. See Longs Drug Stores California, Inc. v. Shep Dog, WIPO Case No. D2004 1069 (Respondent is not free to tread upon the goodwill built up by Complainant in order to steer traffic to a competing site based on intent to take advantage of Internet user confusion from typographical errors involving Complainant’s trademark).
The Panel believes that the former use of the domain name at issue was in bad faith, since Internet users looking for Complainant, deceived by an obvious misspelling of Complainant’s mark, were lured into a website where Complainant’s business and mark were disparaged, and staff was insulted. The present use of the domain name also appears to be in bad faith, because the active website consists of numerous links to commercial websites of third parties unrelated to Complainant. In sum, Respondent is intentionally attempting to attract, for commercial gain, Internet users to its website or other on line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location. This circumstance indicates bad faith registration and use pursuant to Policy paragraph 4(b)(iv).
The third requirement of the Policy is also met.
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, be transferred to the Complainant.
Dated: January 29, 2007