SOCIEDAD COOPERATIVA MADRILEÑA DE ENSEÑANZA ARTURO SORIA (CEAS) v. ANTONIO GOMEZ MARTINEZ / RICHMOND MARKETS SL
Claim Number: FA1504001612485
Complainant is SOCIEDAD COOPERATIVA MADRILEÑA DE ENSEÑANZA ARTURO SORIA (CEAS) (“Complainant”), represented by Angel DE LA VEGA, Spain. Respondent is ANTONIO GOMEZ MARTINEZ / RICHMOND MARKETS SL (“Respondent”), Spain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <colegioarturosoria.net>, registered with ENOM, INC.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 1, 2015; the Forum received payment on April 1, 2015.
On April 9, 2015, ENOM, INC. confirmed by e-mail to the Forum that the <colegioarturosoria.net> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, INC. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 9, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 29, 2015 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@colegioarturosoria.net. Also on April 9, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On May 11, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.
Complainant
Complainant has rights in the COLEGIO ARTURO SORIA mark under Policy ¶ 4(a)(i). Complainant owns the COLEGIO ARTURO SORIA mark through its registration with the Spanish Trademark National Bureau (“SOPM”) (Reg. No. 0.250.26 registered November 20, 2012). Respondent’s <colegioarturosoria.net> domain name is identical to Complainant’s mark.
Respondent has no rights or legitimate interests in the <colegioarturosoria.net> domain name pursuant to Policy ¶ 4(a)(ii). Respondent is not commonly known by the disputed domain name as Respondent’s corporate names have no relation to the disputed domain names or the services provided. Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name.
Respondent registered and is using the <colegioarturosoria.net> domain name in bad faith under Policy ¶ 4(a)(iii). Respondent displays false and harmful information about Complainant which results in confusion of third parties regarding Complainant’s real purpose.
Respondent
Respondent did not submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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."
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant states that it is a private teaching institution based in Madrid, Spain. Complainant provides teaching services to students of all education levels in accordance with the Spanish Educational System. Complainant contends it has rights in the COLEGIO ARTURO SORIA mark under Policy ¶ 4(a)(i) through its registration and continuous use. Complainant provides evidence of its ownership of the COLEGIO ARTURO SORIA mark through its registration with the SOPM (Reg. No. 0.250.26 registered November 20, 2012). Past panels have routinely concluded that evidence of a registration for a mark with a recognized trademark authority is sufficient to establish rights, regardless of where respondent is located. See Choice Hotels Int’l, Inc. v. Domain Admin., FA 791619 (Nat. Arb. Forum Oct. 18, 2006) (finding that the complainant had established rights in the CLARION HOTEL mark through registration of the mark with the Spanish trademark authority). The Panel finds Complainant has rights in the COLEGIO ARTURO SORIA mark under Policy ¶ 4(a)(i).
Complainant claims that Respondent’s <colegioarturosoria.net> domain name is identical to Complainant’s mark. Respondent merely removes the spaces between the words and adds the generic top-level domain (“gTLD”) “.net.” The Panel in Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) held the <hannoverre.com> domain name to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names.” The Panel agrees, and concludes that Respondent’s <colegioarturosoria.net> domain name is identical to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proven this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the <colegioarturosoria.net> domain name. Complainant contends that Respondent is not commonly known by the disputed domain name as demonstrated by the WHOIS information. The WHOIS information indicates that “Antonio Gomez Martinez” is the registrant of the disputed domain name. Complainant states that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Respondent did not submit a Response in the proceeding, and therefore, has not refuted Complainant’s contentions. As such, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant claims that Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Complainant states that Respondent uses the disputed domain name to disseminate false information about Complainant and its employees. Respondent’s resolving website is displayed in Spanish. Complainant provides a translation of the relevant comments including “Surveys about the ‘excellent’ qualifications of the school are rigged,” “There is not a real psychologist and pedagogic team,” “The school has breached its legal obligations,” “Board of directors are worse than Fidel Castro and the Korean Dictator.” Past panels have concluded that use of a confusingly similar domain name to divert Internet users to a website of a respondent is not a bona fide offering of goods or services, or a noncommercial or fair use. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). The Panel agrees that Respondent uses the disputed domain name to divert Internet users away from Complainant’s actual business for Respondent’s profit, and concludes that Respondent has no rights or legitimate interests in the <colegioarturosoria.net> domain name pursuant to Policy ¶¶ 4(c)(i) or 4(c)(iii).
Complainant has proven this element.
When a Respondent’s actions do not fall directly under a particular circumstance set out in ¶ 4(b) the panel may look beyond ¶ 4(b) to the totality of the circumstances when analyzing bad faith. See Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence); see also Home Interiors & Gifts, Inc. v. Home Interiors, D2000-0010 (WIPO Mar. 7, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in [¶ 4(b)], does not mean that the domain names at issue were not registered in and are not being used in bad faith.”). The panel therefore choosse to infer bad faith from the totality of the circumstances under Policy ¶ 4(a)(iii).
Complainant asserts that Respondent is disrupting Complainant’s business in bad faith by using an identical domain name to resolve to a website that provides false and offensive information about Complainant. Complainant states that Respondent presents the resolving website as a forum owned by Complainant where Internet users can participate by leaving comments regarding Complainant’s teaching institution. Past panels have concluded that an attempt to pass oneself off as a complainant through the use of a confusingly similar domain name, is a strong indication of bad faith use and registration. See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith). The Panel therefore concludes that Respondent’s use of the disputed domain name is evidence of bad faith pursuant to Policy ¶ 4(a)(iii).
Complainant has proven this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <colegioarturosoria.net> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.), Panelist
Dated: May 20, 2015
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