VIDORRETA, S.L.U. v. JOSÉ Mª VIDORRETA JORDA
Claim Number: FA1812001822487
Complainant is VIDORRETA, S.L.U. (“Complainant”), represented by Jose V. Jimenez of Poligono Larrate, Spain. Respondent is JOSÉ Mª VIDORRETA JORDA (“Respondent”), Spain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vidorreta.com>, registered with Acens Technologies, S.L.U.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 26, 2018; the Forum received payment on December 26, 2018. The Complaint was received in both Spanish and English.
On December 27, 2018, Acens Technologies, S.L.U. confirmed by e-mail to the Forum that the <vidorreta.com> domain name is registered with Acens Technologies, S.L.U. and that Respondent is the current registrant of the name. Acens Technologies, S.L.U. has verified that Respondent is bound by the Acens Technologies, S.L.U. 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 December 28, 2018, the Forum served the Spanish language Complaint and all Annexes, including a Spanish language Written Notice of the Complaint, setting a deadline of January 17, 2019 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@vidorreta.com. Also on December 28, 2018, the Spanish language 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 January 21, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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.
Preliminary Issue: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Spanish, thereby making the language of the proceedings in Spanish. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Spanish language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Vidorreta, S.L.U., produces espadrilles and sells them all over the world under the Reg. No. 2147407 VIDORRETA (stylized) mark. Complainant registered the VIDORETTA mark with multiple registries including in Spain (e.g. Reg. No. 2147413, registered in 1998). Complainant also claims common law rights in the VIDORRETA mark. Respondent’s <vidorreta.com> domain name is identical to the lettering of Complainant’s mark.
Respondent lacks rights or legitimate interest in the <vidorreta.com> domain name due to Complainant’s vast usage of the VIDORRETA mark. Respondent fails to use the domain name because it resolves to a parked page.
Respondent registered and uses the <vidorreta.com> domain name in bad faith because Respondent does not use the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that Respondent registered the disputed domain name on February 28, 2002.
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(f), 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 (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 asserts rights in the VIDORRETA mark based on its registration of the mark with Spanish Patent and Trademark (SPTO registration number 2147403). Registration of a mark with any national registry including the SPTO is sufficient to establish a complainant’s rights in the mark. Therefore, the Panel finds that Complainant has rights in the VIDORRETA mark.
Further, Complainant argues that Respondent’s <vidorreta.com> domain name is identical to the words in Complainant’s VIDORRETA mark. The Panel agrees and finds that the disputed domain name is identical to Complainant’s mark.
Complainant argues that the <vidorreta.com> domain name is being used as the resolving webpage of the disputed domain name displays a parked webpage. Use of a disputed domain name to display a parked webpage is generally not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). See Guess? IP Holder L.P. and Guess?, Inc. v. xi long chen, FA 1786533 (Forum June 15, 2018) (“The disputed domain name resolves to a parked page with the message, “website coming soon!” The Panel finds that this use does not amount to a bona fide offering or good or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii) and Respondent does not have rights or legitimate interests with respect of the domain name.”). Complainant provides the Panel a screenshot of the resolving webpage of the disputed domain name which displays a parked webpage without any substantive content. Therefore, the Panel finds that Respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name per Policy ¶¶ 4(c)(i) & (iii).
Complainant does not make any specific contentions as to Policy ¶ 4(c)(ii); however, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Amazon Technologies, In. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding that a respondent has no rights or legitimate interests in a dispute domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). The Panel also notes that while Respondent appears to be commonly known by the disputed domain name, it has failed to provide affirmative evidence to support the WHOIS information. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent itself listed as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name). In light of Respondent’s failure to provide any evidence or arguments, the Panel determines that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant has therefore also satisfied the requirements of Policy¶ 4(a)(ii).
Registration and Use in Bad Faith
Complainant argues that Respondent’s bad faith is demonstrated by Respondent not making any use of the <vidorreta.com> domain name. Failure to use a disputed domain name can provide evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Complainant has provided a screenshot of the resolving webpage of the disputed domain name which displays a parked webpage without any substantive content. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Respondent’s domain consists entirely of Complainant’s widely used trademark. The Panel therefore infers that Respondent had actual knowledge of Complainant’s trademark, evidencing bad faith registration.
Thus, Complainant has also satisfied the requirements of Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <vidorreta.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: February 4, 2019
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