Administrative panel decision vortex V. Nasedine Mecheri




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WIPO Arbitration and Mediation Center



ADMINISTRATIVE PANEL DECISION



VORTEX v. Nasedine Mecheri

Case No. DTV2003-0007


1. The Parties
The Complainant is VORTEX of Paris, France, represented by Cabinet Vittoz of Paris, France.
The Respondent is Nasedine Mecheri of Puteaux, France.

2. The Domain Name and Registrar
The disputed domain name is registered with .tv Corporation International.

3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 27, 2003. On November 30, 2003, the Center transmitted by email to .tv Corporation International a request for registrar verification in connection with the domain name at issue. On December 8, 2003, .tv Corporation International transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 December 10, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was December 30, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 22, 2004.
The Center appointed Christiane Féral-Schuhl as the sole panelist in this matter on February 5, 2004. 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 owner of French, European and foreign trademarks using the name “Skyrock”.
The SKYROCK trademark has been filed in relation with many goods and services, among which: “records, tapes, data carriers for recording, reproducing and duplication of sounds; printed matters; advertising services; any communication services, broadcasting of radio and television programmes, communication services in the audio-visual and video areas; communication on computer networks; transmission and broadcasting of images, messages, information, data via computer terminals, cable, telematics and any other means of telecommunication; entertainment, organization of games; mounting of radio and television programmes; news and entertainment programmes services; shows ...”.
Since 1985, the Complainant has been operating the French radio station Skyrock, which has been well-known in France for almost 20 years now. Skyrock appears to be the number one French radio station amongst listeners of less than 25 years old and has an audience of 4 million listeners each day, ranking in second position among musical radio stations in France (Mediamétrie study made between the end of August and October 2003, mentioned in an article from the newspaper “Le Monde” dated November 11, 2003).
The Respondent has registered the domain name on February 20, 2002.
On September 3, 2003, “www.skyrock.tv” still leads to the standard .tv Corporation website page.
However, the Complainant carried out additional searches for this purpose and, in particular, on the website “www.pagesjaunes.fr” which revealed the existence of the Respondent’s postal address.
The Complainant then sent a registered letter to the Respondent on September 10, at such address, such letter being duly received.

5. Parties’ Contentions
A. Complainant
According to the Complainant, the contested domain name is identical or confusingly similar to the trademark registrations SKYROCK in which it has rights.
The Complainant indicates that the domain name and the registered trademarks consisting of the word “skyrock” are totally identical, the only difference being the addition of the country code “.tv” in the domain name, an incidental and generic extension which does not create a distinct mark capable of overcoming the claim that the domain name is identical or confusingly similar to the protected trademarks.
In addition, the Complainant emphasizes that the Respondent is not licensed or otherwise authorised by the Complainant to use, in anyway, and in particular, as a domain name, the SKYROCK trademarks or any other confusingly similar names.
The Complainant also points out that despite the fact that it has been more than one year since the Respondent registered the name and, before any notice of the dispute was given to him, the Complainant could not trace any use of the domain name with a bona fide offering of goods or services.
The Complainant argues that the Respondent has never been commonly known under the domain name, that he has never carried out a business under the name “skyrock” and that he has never made any legitimate non-commercial or fair use of the domain name , without an intent to misleadingly divert consumers or to tarnish the SKYROCK trademarks at issue for commercial gain.
Moreover, considering the fame of the SKYROCK brands, in particular in France where the Respondent has his residence, the Complainant considers that the Respondent could not ignore the existence of the Complainant’s trademark rights.
Finally, according to the Complainant, the domain name was registered by the Respondent in bad faith since he could not ignore the Complainant's trademark rights with regard to the fame of the trademarks and trade name SKYROCK in particular, in France, for almost 20 years now. With regard to the fame and reputation of the SKYROCK trademarks, and the important use and publicity made to promote them, the Complainant believes that it cannot be contested that the Respondent was aware of the Complainant’s rights in the SKYROCK trademarks when he registered the domain name and, considering the extension at issue, of the possible interest that the Complainant would have in a domain name directly linked to the Complainant’s sphere of activity, namely in the field of communication, media, radio and television.
The Complainant also brings evidence that it has developed, on its websites “www.skyrock.com” or “www.skyrock.fr” webtv service under the name “Skyrocktv” and that by registering the corresponding domain name, the Respondent prevents him from using and reflecting the mark SKYROCK in the corresponding domain name, which constitutes an obstacle to the Complainant’s legitimate right to expand its activities.
The Complainant indicates that with regard to the foregoing, any use of the domain name is likely to cause confusion among Internet users who can mistakenly assume that the Respondent’s website is somehow associated with the Complainant.
To support its case, the Complainant recalls that bad faith registration followed by passive holding when there is no way that it could be used legitimately amounts to use in bad faith (Telstra Corporation Limited v. Nuclear Marshmallow, WIPO Case No. D2000-0003). The Complainant also recalls that “use” can also mean “holding” something in the sense of accomplishing or achieving some purpose (Revlon Consumer Products Corporation v. Domain Manager, PageUp Communications, WIPO Case No. D2003-0602).

Lastly, according to the Complainant, the fact that the Respondent registered, two days before the domain name at issue, the domain name (which also corresponds to a well-known brand) constitutes a pattern of intentionally obstructive behaviour: the Respondent’s sole and unique purpose is to register domain names which correspond to well-known companies.


It must also be noted that the Respondent has given no information which may allow to locate him, which can be regarded as additional evidence of his bad faith.
As a consequence, the Complainant requests that the contested domain name be transferred.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has proven that it is the owner of the trademark “SKYROCK”.



The contested domain name, , is obviously identical to the Complainant’s trademark, “’SKYROCK” being the distinctive part of the domain name.

The extension indicating the top level domain “.tv” does not prevent identity.

As a consequence, the action brought by the Complainant meets the requirement of Article 4 (a) (i) of the UDRP.




B. Rights or Legitimate Interests

Article 4(a)(c) of the URDP explains how a Respondent may demonstrate its rights to and legitimate interests in a domain name in responding to a complaint.


In the present matter, the Respondent has not filed any response.
As a consequence, it has not been proven that the Respondent is either affiliated to the Complainant or an official dealer.
It has not been proven either that there is a legal or business relationship between the parties.
The Complainant denies that any relationship of such kind ever existed.
As a consequence, such as in the “Telstra” decision (Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, February 18, 2000) it can be stated that: “Respondent has not provided evidence of circumstances of the type specified in paragraph 4(c) of the Uniform Policy, or of any other circumstances giving rise to a right to or legitimate interest in the domain name. In light of (i) the fact that the Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or to apply for or use any domain name incorporating any of those marks, and (ii) the fact that the word “TELSTRA” appears to be an invented word, and as such is not one traders would legitimately choose unless seeking to create an impression of an association with the Complainant, the Administrative Panel finds that the Respondent has no rights or legitimate interests in the domain name.
The facts brought to the Panel’s attention in WIPO Case No. D2000-0003 are similar to the one of the present dispute regarding the test of Article 4(a)(c) of the URDP.
Hence, the Panel finds that in the present case there is no proof that the Respondent has a right or legitimate interest in the contested domain name.

C. Registered and Used in Bad Faith

The Respondent is an individual whose home address is in France.


Skyrock is a well-known radio station broadcast throughout the French territory.
Thus, there is no doubt that the Respondent knows the Complainant and that when registering the contested domain name he knew that it was registering a protected trademark and/or trade name.
Such knowledge is also correlated by the fact that the Respondent registered the Complainant’s trademark with “.tv” extension, the Complainant’s activity being directly connected with radio and TV broadcasting.
In addition, the Respondent has not proven that it had any right whatsoever to do so.
As a consequence, the Panel finds that there is sufficient evidence that registration of the contested domain name has been made in bad faith.
As far as bad faith use is concerned, it appears that “www.skyrock.tv” leads to a standard page of the .tv Corporation. In other words, “www.skyrock.tv” does not seem to be operated in any way.
In JVC Americas Corp v. Damian Macafee (CPR Institute, November 10, 2000), the panel stated that “Respondent's bad faith use of the domain name is clearly demonstrated by his inaction, that is, his passive holding of the domain name < jvc-america.com > to the exclusion of Complainant, the owner of the JVC mark”.
The same principle has been applied in Ingersoll-Rand Co (WIPO Case No. D2000 0021), and Symplicity Corporation v. Bob Gately (WIPO case No. D2000-0425, citing nine cases following Telstra).
The Respondent clearly registered “skyrock.tv” with no intention of using it and for the sole purpose of causing damage to the Complainant, preventing the Complainant to register “skyrock.tv” as a domain name. The Respondent also knew that such conduct would be extremely harmful to the Complainant.
The Panel finds that such behavior constitutes bad faith use.
Therefore, the Panel concludes that the contested domain name was registered and is 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 concludes that the Complainant has met its burden of proof. Accordingly, the panel orders that the domain name should be transferred to the Complainant.

_________________________________________

Christiane Féral-Schuhl



Sole Panelist
Date: February 17, 2004

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