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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Ruedas E.B. S.R.L. v. Johannes Auel

Case No. D2008-1854

1. The Parties

The Complainant is Ruedas E.B. S.R.L. of Provincia de Santa Fe, Argentina, represented by Oscar Enrique Biglieri, Argentina.

The Complainant has named two Respondents: DomainsByProxy Inc., of Scottsdale, Arizona, United States of America, and Mr. Johannes Auel, of Capital Federal, Argentina. DomainsByProxy Inc., is simply a privacy domain name registration service. The Registrar has confirmed that the registered owner of the domain name is Johannes Auel. Accordingly the Panel will treat Johaness Auel as the sole Respondent.

2. The Domain Name and Registrar

The disputed domain name <ruedaseb.com> is registered with GoDaddy.com, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 1, 2008. On December 2, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On December 2, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that 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 December 16, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 5, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 9, 2009.

The Center appointed Miguel B. O’Farrell as the sole panelist in this matter on January 23, 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 owns an Argentine registration for RUEDAS E.B (&design), Reg. No. 1.854.055, in international class 12, granted on January 31, 2002.

The Complainant manufactures and sales automobile wheels, parts, and accessories, having its principal place of business in Argentina.

On November 17, 2008, DomainsByProxy, Inc. advised the Complainant by email that it, DomainsByProxy, Inc was not the actual registrant of the disputed domain name, and provided as the current registrant the name and contact details of Mr. Auel.

5. Parties’ Contentions

A. Complainant

The Complainant contends the following:

That the Complainant owns an Argentine registration for RUEDAS E.B (&design), in international class 12, granted on January 31, 2002.

That the disputed domain name is identical or confusingly similar to the Complainant’s trademark RUEDAS E.B., as it entirely incorporates the Complainant’s mark.

That on July 6, 2000, the Complainant started use in commerce of its trademark RUEDAS E.B, eight years before the Respondent registered the disputed domain name on May 22, 2008.

The Respondent has no rights or legitimate interests regarding the disputed domain name.

The Complainant is not affiliated with the Respondent, nor has it given any consent or waiver, nor any license, sub-license, permission or authorization whatsoever to use the Complainant’s mark in any manner.

That the disputed domain name was registered and is being used in bad faith.

Moreover, the Complainant contends that originally, the web site “www.ruedaseb.com” to which the disputed domain name resolves displayed the RUEDAS E.B. logo and featured six links, namely as follows: Products, Objectives, Clients, Press-Info, Blueprints, and Contact.

In that connection, the Complainant contends that the Respondent’s website was used to anonymously disparage the Complainant’s mark RUEDAS E.B. and to discredit the Complainant and its employees, particularly through different statements contained in the following links: Objectives, Clients, and Press-Info.

The Complainant also contends that by resorting to the privacy service provided by DomainsByProxy, the Respondent has tried to hide his identity to benefit from anonymity, avoiding being identified in connection with the discrediting of the Complainant and its trademark RUEDAS E.B.

Furthermore, the Complainant contends that Internet users trying to connect to the Complainant’s web site are in fact redirected to the website “www.rallykart.com”, a commercial website owned by the Respondent Johannes Auel by which the latter sales and offers for sale different products that are strongly related to those of the Complainant’s business.

The Respondent, as an individual, business, or other organization, has never been known by the disputed domain name.

The Respondent is diverting the Complainant’s current and potential clients to another on-line location for commercial purposes, and therefore it is unfairly competing with the Complainant, what evidences that the Respondent has both registered and is using the disputed domain name in bad faith.

The Respondent was aware of the previous existence of the Complainant and its trademark RUEDAS E.B., before registering the disputed domain name.

On November 19, 2008, the Respondent updated the content of its website “www.ruedaseb.com” and removed the defamatory and offensive comments in connection with the Complainant and its employees. However, it still redirects Internet users to the Respondent’s website “www.rallykart.com”.

The Respondent’s registration and use in bad faith of the disputed domain name is evidenced by the fact that through the website at the disputed domain name, the Respondent is selling and offering for sale different products that are strongly related to those of the Complainant’s business.

Moreover, the Complainant contends that the Respondent primarily registered the disputed domain name for the purpose of preventing the Complainant from reflecting its mark in a domain name, and for the purpose of disrupting the business of a competitor, which evidences the Respondent’s use and in bad faith registration, pursuant to paragraphs 4(b)(ii) and 4(b)(iii) of the Policy.

Finally, the Complainant contends that the Respondent is intentionally attempting to attract Internet users to its web site for commercial gain, by creating confusion with the Complainant’s RUEDAS E.B. mark.

B. Respondent

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

6. Discussion and Findings

For the Complaint to succeed in a UDRP proceeding, under paragraph 4(a) of the Policy, the Complainant must prove that:

(i) The disputed 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 disputed domain name; and

(iii) The disputed domain name has been registered and is being used in bad faith.

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

A. Identical or Confusingly Similar

The Complainant has proven to the Panel’s satisfaction that it owns a registration for the trademark RUEDAS E.B., in Argentina, where the Respondent is apparently located.

In view of the foregoing, especially as the disputed domain name incorporates the Complainant’s trademark in its entirety with no substantial differentiation, the Panel finds that the disputed domain name is identical or confusingly similar to the Complainant’s trademark RUEDAS E.B, and therefore, the Complainant has succeeded on this first element under the Policy.

B. Rights or Legitimate Interests

According to paragraph 4(a)(ii) of the Policy, the second element that the complainant must prove is that the respondent has no rights or legitimate interests in respect of the disputed domain name. Paragraph 4(c) of the Policy sets out various ways in which a respondent may demonstrate rights or legitimate interests in the domain name.

Although the Policy states that the complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative, i.e. that a respondent has no rights or legitimate interests in respect of a domain name. It has therefore become generally accepted under the Policy that, once a complainant has presented a prima facie showing of a respondent’s lack of rights or legitimate interests in a domain name, the burden of proof shifts to the respondent. The respondent must then, to the panel’s satisfaction, demonstrate its rights or legitimate interests in the domain name in order to refute the prima facie case.

The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests and so the burden of proof has effectively been shifted to the Respondent, who did not reply to the Complainant’s contentions and therefore, has not made such a showing.

Furthermore, the Complainant has submitted relevant evidence showing that the Respondent has not made a bona fide offering of goods or services in connection with the disputed domain name.

In that connection, the Complainant has proved to the Panel’s satisfaction that through the website “www.ruedaseb.com”, to which the disputed domain name resolves, the Respondent is selling and offering for sale different products strongly related to those of the Complainant’s business (i.e. automotive wheels, parts, and accessories).

Therefore, the Panel finds that the Respondent is attracting for commercial gain, Internet users to its website. Such use cannot be considered a bona fide use, or fair or non-commercial use as set forth in paragraph 4(c)(iii) of the Policy.

Additionally, there is no evidence showing that the Respondent is commonly known as or identified by RUEDAS E.B. Furthermore, there is no evidence showing that the Respondent operates a business or any other organization under the disputed domain name.

For these reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

According to paragraph 4(a)(iii) of the Policy, the third element that a complainant must prove is that the domain name has been registered and is being used in bad faith.

The Policy in its paragraph 4(b) sets out various circumstances which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith.

As above-referenced, the Panel finds that the Complainant owns a registration for the trademark RUEDAS E.B., in Argentina, where the Respondent appears to be located.

Moreover, from printouts of the website at the disputed domain name, the Panel notes that the Respondent has used the Complainant’s logo with the corresponding risk of creating a likelihood of confusion with the Complainant’s mark and activities, as to the source, sponsorship, affiliation, or endorsement of the website and the products offered for sale through it.

For the above, the Panel finds that the Respondent in all likelihood was aware of the Complainant and its trademark RUEDAS E.B., before registering the disputed domain name, which further evidences its bad faith registration.

In addition, the Complainant has proved to the Panel’s satisfaction that through the website “www.ruedaseb.com”, to which the disputed domain name resolves, the Respondent is selling and offering for sale different products strongly related to those of the Complainant’s business (i.e. automotive wheels, parts, and accessories).

Therefore, the Panel finds that the Respondent is using the disputed domain name intentionally to attract, for commercial gain, Internet users to its web site, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement.

For these reasons, the Panel finds that the Respondent both registered and uses the disputed domain name in bad faith, and that the Complainant has therefore made out the third element of its case.

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 <ruedaseb.com> be transferred to the Complainant.

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Miguel B. O’Farrell
Sole Panelist

Dated: February 6, 2008