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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Fabricom N.V. v. Haclav Vavel

Case No. D2009-1459

1. The Parties

The Complainant is Fabricom N.V. of Ukkel, Belgium, represented by Eubelius, Belgium.

The Respondent is Haclav Vavel of Vavau, Tonga, and Gu Bei of Shanghai, China.

2. The Domain Name and Registrar

The disputed domain name <fabricom.com> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 29, 2009. On October 29, 2009, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain name. On October 30, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 4, 2009 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. With the express reservation of all its rights and without any disadvantageous recognition the Complainant filed an amendment to the Complaint on November 6, 2009. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), 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 November 9, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 29, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent`s default on November 30, 2009.

The Center appointed Knud Wallberg as the sole panelist in this matter on December 4, 2009. 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 the Benelux wordmark FABRICOM registered for goods and services in international classes 9, 11, 16, 19, 20, 35, 36, 37, 38 and 42.

In addition, the Complainant has unregistered trademark rights in FABRICOM and it is clear under the Policy that unregistered trademark rights suffice for the purposes of establishing the relevant trademark rights of the Complainant. Such unregistered trademark rights follow from constant use of the name by the Complainant for his products and services since 1946, the date of incorporation of the company. The Complainant and his affiliated companies employ more than 4,900 people and achieved a turnover of 706 million Euros in 2007 in the European Union. The Complainant is part of the group GDF Suez, which is a world scale player in the field of energy.

5. Parties` Contentions

A. Complainant

The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights

The disputed domain name is identical to the mark FABRICOM in which the Complainant has rights.

The Respondent has no rights or legitimate interests in respect of the domain name

The prior Registrant and initial Respondent did not make any use of nor preparations to legitimately use, the disputed domain name in connection with a bona fide offering of goods or services. On the contrary, he was making illegitimate use of the disputed domain name as a template page containing nothing but unrelated hyperlinks to third parties hence diverting the domain name from the legitimate owner. This unlawful use is enhanced by hyperlinks referring to the Complainant that are unrelated to the Complainant but clearly refer to it. Further, the initial Respondent, as an individual, was not commonly known by the disputed domain name and has not acquired trademark or service rights to that name.

As far as the present Registrant and Respondent is concerned he has not made any use of or preparations to legitimately use the disputed domain name in connection with a bona fide offering of goods or services. On the contrary, the subject website is nothing more than a mala fide slavish copy of the website of Emerson Electric Co. at the website "www.emerson.com". Respondent is however not linked to Emerson Electric Co. in any legitimate way and the website to which the disputed domain name forwards is nothing but mala fide copyright infringement.

The domain name was registered and is being used in bad faith.

At the time the Complainant addressed its first demand letter to the "oririnal" registrant of the disputed domain name in May 2007, the "original" registrant never reacted to the Complainant`s demands. In the preparation of the present Complaint, the Complainant found out that the "original" registrant of the disputed domain name transferred the disputed domain name to a subsequent registrant, the initial Respondent, whose address however was quasi identical to the "original" registrant. Such circumstances enhance the suspiciousness of the transfer and demonstrate that registration was done in bad faith in order to prevent the Complainant from using the disputed domain name.

Also, it is clear from the content of the website that the prior Registrant and initial Respondent knew the Complainant, since he expressly refers to it as "Fabricom BelgiГ«" and "Fabricom Belgique" and the hyperlinks were in Dutch and in French. Other links on the website indicated the same.

In addition to all of the above the initial Respondent also uses the disputed domain name to direct unsuspected visitors to adult websites using hyperlinks which was harmful to the Complainant`s reputation.

It is also possible that the initial Respondent received some sort of commission for each referral he directs from his website, so the initial Respondent`s aim was to attract website hits and ultimately business, by creating a likelihood of confusion with the Complainant.

Within 24 hours of the filing of the original Complaint, the initial Respondent transferred the disputed domain name to present Respondent and changed the website displayed by the disputed domain name completely. The contact details of the present Respondent are utterly bizarre if not false: the name Haclav Vavel seems to allude to the well-know Czech author and politician Vaclav Havel and the address appears to be fantasized. The present Respondent is a well-known cybersquatter who has been condemned in different WIPO panel decisions and there are even decisions in cases that have identical circumstances to the present case.

The present Respondent is using the domain name in bad faith as his website is a bad faith slavish copy of the website of Emerson Electric Co. in the website "www.emerson.com". The Respondent is however not linked to Emerson Electric Co. in any legitimate way and the copy is a bad faith copyright infringement.

Finally, the fact that the word "fabricom" does not have any meaning also indicates that either of the Respondents had prior knowledge of the Complainant`s trade name, name and trademark.

B. Respondent

The Respondent did not reply to the Complainant`s contentions.

6. Discussion and Findings

According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements are satisfied:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the 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.

Paragraph 4(a) of the Policy states that the burden of proving that all three elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate.

Because of the transfer of the domain name during the pendency of this proceeding, a showing of no legitimate interests and bad faith by either the prior registrant or Respondent would in the Panel`s view suffice to satisfy the second and third elements of paragraph 4(a) of the Policy, but for completeness the Panel will base its decision of findings related to both the prior registrant and Respondent.

A. Identical or Confusingly Similar

The disputed domain name contains the Complainant`s trademark FABRICOM in its entirety. Since the inclusion of the gTLD denomination ".com" shall be disregarded for the purpose of these proceedings, the Panel finds that the disputed domain name is identical to the Complainant`s registered trademark and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.

B. Respondent`s Rights or Legitimate Interests

The Panel is satisfied that the Complainant has established a prima facie case that neither the prior registrant and initial Respondent nor the present Respondent has rights or legitimate interests in the disputed domain name. Neither Respondent has rebutted this by way of a formal Response or otherwise.

Neither of the Respondents is commonly known by the disputed domain name or have acquired trademark or service mark rights to the word "fabricom".

The disputed domain name was registered several years after the Complainant registered and started using its trademark, and the initial Respondent used the disputed domain name for a website that appeared to contain information on the Complainant and contained only links to other websites unrelated to the Complainant. The initial Respondent thus could not credibly claim that the disputed domain name is intended to be used for any legitimate interests and such a claim would in any event also be contrary to the way the initial Respondent used the disputed domain name, namely for a website that contains only links to other sites.

The present Registrant and Respondent uses the disputed domain name to point at the website of the company Emerson Electric Co. found at "www.emerson.com." The Panel finds that the Complainant has made its case in claiming that the Respondent is not linked to this company and that such use can in no way constitute bona fide or legitimate use of the disputed domain name under the Policy.

Consequently the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy, with reference to paragraph 4(c) of the Policy, are also fulfilled.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides examples of circumstances which shall be evidence of registration and use in bad faith.

Given the coined nature and thus distinctive character of the Complainant`s trademark it is inconceivable to the Panel that the either of the Respondents was not aware of the Complainant and the Complainant`s activities when acquiring the disputed domain name. It is inconceivable to the Panel in the current circumstances that the Respondents acquired the disputed domain name without prior knowledge of the Complainant and the Complainant`s mark. The Panel therefore finds that the disputed domain name was registered in bad faith.

This is underlined by the fact that the disputed domain name, at the time of the filing of the Complaint, was used for a website that contained links that gave Internet users the false impression that the website was related to the Complainant. It is also highly likely that the setup of the page was some kind of advertising or pay per click revenue arrangement. The Panel therefore finds that the initial Respondent by its registration and its use of the disputed domain name, intentionally created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the disputed domain name with the purpose of attracting Internet users to the website for commercial gain.

The fact that the disputed domain name is now used by the present Registrant and Respondent to point at the website of a company completely unrelated to the Respondent, namely Emerson Electric Co., is also an indication of bad faith. It is thus clear that the registration itself prevents the Complainant as the owner of the trademark FABRICOM from reflecting the mark in a corresponding domain name under the .com gTLD and that the current use is likely capable of disrupting the business of the Complainant.

The Panel is also mindful of the "cyberflight" activity in this case (i.e. whereby the registrant name was apparently changed after the Complaint was served) and also the likelihood that the registrant name "Haclav Vavel" is a false one, namely an apparent play on the name of the well-known Czech writer and politician Vaclav Havel.

The Panel concludes from the foregoing that the Complainant has shown that both the prior registrant and the present Respondent lack any legitimate interests and have acted in bad faith with respect to the registration and use of the disputed domain name in accordance with paragraph 4(b)(iv) of the Policy. The Panel therefore finds that the Complainant has established the third element of the Policy.

7. Decision

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, <fabricom.com>, be transferred to the Complainant.

Knud Wallberg
Sole Panelist

Dated: December 17, 2009