Marketing Insiders S.R.L v. sergio depaolini / cobertores tango
Claim Number: FA2012001925208
Complainant is Marketing Insiders S.R.L (“Complainant”), represented by Mauro Ariel Tovorovsky, Argentina. Respondent is sergio depaolini / cobertores tango (“Respondent”), Argentina.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <agildataonline.com>, registered with GoDaddy.com, LLC.
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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 16, 2020; the Forum received payment on December 16, 2020.
On December 17, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <agildataonline.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2021 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@agildataonline.com. Also on December 21, 2020, 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 January 16, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant relies on its rights in the AGILDATAONLINE registered service mark details of which are described below.
Complainant adds that it has rights in the inherently distinctive AGILDATAONLINE mark at common law acquired through the substantial and continuous use of the mark since at least as early as October 2015.
Complainant submits that since December 2015, it has owned, used, and promoted the service mark AGILDATAONLINE in connection with its corporate services and has since expanded its market presence in Argentina with great success.
Complainant alleges that the disputed domain name fully incorporates, and is confusingly similar to Complainant’s mark
Complainant submits that Respondent has no rights or a legitimate interest in the disputed domain name because Respondent is not commonly known by the disputed domain name and Respondent is not, and has never been, licensed and/or otherwise authorized by Complainant to use the AGILDATAONLINE mark.
Complainant alleges that the disputed domain name is used with the sole purpose of threatening the legitimate owner of the AGILDATAONLINE mark.
Complainant does not know who the Respondent is, but the name declared before Registrar is evidently false.
Moreover, it is contended that Respondent does not made any legitimate use on the webpage in which the domain name resolves. See cases Coachella Music Festival, LLC v. Vladic Ravich / Artery FA2005001895608 and Spotify AB v. Sebastian Kussl FA2005001895996.
Complainant further alleges that the disputed domain name was registered and is being used in bad faith, arguing that Respondent registered the disputed domain name in bad faith, knowing that AGILDATA mark was already owned by Complainant.
Complainant states that it does not know who Respondent really is, taking into account that Respondent hid his identity behind a fantasy name, “cobertores tango”. The mentioned name is neither a natural person nor a company.
Complainant alleges that it has received a phone call from a person calling himself Matias Tapo in which he demanded that Complainant pay $AR 300,000 for the disputed domain name to be transferred. When Complainant called back to verify the identity of Mr. Tapo, that person did not exist. Complainant argues that however, the alleged Mr. Tapo knew that the AGILDATAONLINE trademark belonged to Complainant since 2015 in Argentina. Moreover, the phone call was made from a telephone in the same country.
Complainant contends that Respondent has acquired the domain name primarily for the purpose of selling the disputed domain name to the Complainant who is the owner of the AGILDATAONLINE service mark, for valuable consideration in excess of its out-of-pocket costs directly related to the disputed domain name.
In conclusion Complainant submits that Respondent’s use of the disputed domain name constitutes bad faith, taking into account that agildataonline.com resolves to a webpage that only shows a menacing pirate-type skull figure, with a funeral march, developing a typical case of cybersquatting. See cases Fox Media LLC v. Global Investor Media Ltd. / Global Investor Media Limited FA2006001900503 and Amazon Technologies, Inc. v. Not disclosed Not disclosed / IceNetworks Ltd. FA2007001905671.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is an Argentinean marketing company founded in 2014, focused in digital services, analytics, database engineering, skiptrace and business intelligence and uses the AGILDATAONLINE to distinguish its analysis of financial reports and credit and financial scoring services for which it claims ownership of Argentinian registered service mark AGILDATAONLINE (design) registration number 3,924,297, registered December 8, 2020 for services in class 36 pursuant to an application made on August 12, 2020.
The disputed domain name was registered on October 4, 2017.
There is no information available about Respondent except for that which is provided in the Complaint and the response of the Registrar to the request by the Forum for verification of the registration details of the disputed domain name in the course of this proceeding.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
As Complainant is required to prove each element of the test in Policy ¶ 4(a) and for reasons given below there is no necessity to consider this element of the Complaint.
The registration of the disputed domain name on October 4, 2017 predates the application for, and registration of Complaint’s Argentinian registered service mark AGILDATAONLINE (design) which was registered December 8, 2020 pursuant to an application made on August 12, 2020.
Complainant claims, but has provided no evidence to support its assertion, that it has used the mark since October or December 2015 and that the registrant of the disputed domain name was aware of Complainant’s rights and goodwill at common-law Wendy disputed domain name was registered.
The burden of production rests on Complainant to prove that the disputed domain name was registered in bad faith. In this case that would mean that Complainant must adduce adequate evidence of its use of the subject service mark to prove that its rights at common-law preceded the registration of the disputed domain name.
Complainant has failed to discharge this burden and therefore Complainant has failed to meet the third element of the test in Policy ¶ 4(a)(iii).
As Complainant is required to prove each element of the test in Policy ¶ 4(a) and so this application must be refused.
In making this finding this Panel is conscious that the arguments and assertions advanced by Complainant are plausible notwithstanding that they are not proven. In these circumstances, and in particular given that Respondent has not engaged in this proceeding, it is appropriate that that the decision of this Panel should be made without prejudice to Complainant’s right to bring further proceedings in relation to this domain name registration.
Complainant having failed to establish all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED, without prejudice to Complainant’s right to make a further Complaint in relation to the disputed domain name.
Accordingly, it is Ordered that the <agildataonline.com> domain name REMAIN WITH Respondent.
James Bridgeman SC
Panelist
Dated: January 18, 2021
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