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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION Intershare, S.L. v. Mr. D. Marecaux
Case No. DNL2008-0036
1. The Parties
The Complainant is Intershare, S.L., Cerdanyola del Vallés, Spain, represented by UBILIBET, Barcelona, Spain.
The Respondent is Mr. D. Marecaux, Brussels, Belgium.
2. The Domain Name
The disputed domain name <softonic.nl> (hereinafter the "Domain Name") is registered with SIDN.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 14, 2008. On August 15, 2008, the Center transmitted by e-mail to SIDN a request for registration verification in connection with the Domain Name. On August 19, 2008, SIDN transmitted by e-mail to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On August 25, 2008, the Center sent a notification to the Parties stating that the Complaint had been submitted in the English language and therefore, in accordance with Article 16 of the Dispute Resolution Regulations for .nl Domain Names (the "Regulations"), requesting the Complainant to provide at least one of the following by August 30, 2008:
1) satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceedings should be in English; or
2) the Complaint translated into Dutch; or
3) a request for English to be the language of the administrative proceedings, including arguments and supporting material.
On August 29, 2008, the Complainant responded to the Center by requesting English to be the language of the administrative proceedings, since it does not speak the Dutch language fluently, while the Respondent seems to be French speaking, according to his contact details in the Whois register. Therefore, the Complainant requested the proceedings to take place in English.
The Center invited Respondent in its notification of August 25, 2008 to submit any comments on Complainant's possible submission replying to that notification to the Center by September 1, 2008. The Respondent did not make use of this option.
In accordance with Article 16 of the Regulations, the Center has therefore provisionally decided that the Complaint would be accepted in English and that a Response would be accepted in either Dutch or English. The Center verified that the Complaint satisfied the formal requirements of Article 5.1 of the Regulations.
In accordance with the Regulations, Articles 5.1 and 15.5, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 3, 2008. In accordance with the Regulations, Article 7.1, the due date for Response was September 23, 2008. On September 4, 2008, an individual informed the Center of receipt of the Complaint at his home address and that he does not know the Respondent nor is familiar with the Domain Name. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 24, 2008.
The Center appointed Alfred Meijboom as the Panelist in this matter on September 26, 2008. The Panelist finds that the he was properly appointed. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, Article 8.2.
4. Factual Background
The Complainant is a company established in 1997, registered with the Commercial Register of Barcelona, and has offices in different countries. The Complainant's main activities are in the business of downloading of online software. The Complainant is owner of SOFTONIC trademarks and different softonic domain names, including <softonic.com>, <softonic.net> and <softonic.org>.
The Domain Name was registered on November 12, 2004. The Domain Name resolves to a website that provides a click through link and, after a few seconds, an automatic link to the website "www.vdnt.com" which offers webhosting and domain name registration services.
5. Parties' Contentions
A. Complainant
The Complainant claimed to hold rights in the following trademarks:
- the Spanish trade mark SOFTONIC (no. 2305002), filed on March 31, 2000 in class 38;
- the Spanish trade mark SOFTONIC (no. 2610716), filed on August 10, 2004 in class 9;
- the Spanish trade mark SOFTONIC COM (no. 2405261), filed on June 4, 2001 in class 38;
- the Community trademark SOFTONIC (no. 5700125), filed on February 19, 2007 in classes 9, 35 and 38, with a priority claim of March 31, 2000 for class 38 and August 10, 2004 for class 9; and
- the International trademark SOFTONIC (no. 864677), filed on February 7, 2005 in class 9 with designations covering People's Republic of China, Germany, the United States of America and the United Kingdom of Great Britain and Northern Ireland.
The Complainant stated that the SOFTONIC trademarks are well-known nationally and internationally, including in the Netherlands. By searching for "softonic" in the Google search engine, many results referring to the Complainant's website <softonic.com> appear.
The Complainant has asserted that the Domain Name is identical to Complainant's trademarks and would confuse internet users.
Furthermore, the Complainant has put forward that the Respondent has no rights or legitimate interest in the Domain Name, since the Respondent does not hold any rights in the name "Softonic", nor has the Complainant granted the Respondent any license or authorization to use its SOFTONIC trademark. Also, the Respondent was not known by the name "Softonic" at the time of registering the Domain Name. The Complainant stated to have repeatedly tried to contact the Respondent without success.
Lastly, the Complainant has put forward that the Domain Name has been registered and is being used in bad faith. The Complainant stated that it is impossible that the Respondent was unaware of the existence of <softonic.com> at the time the Respondent registered the Domain Name, thereby referring to previous WIPO panel decisions. Further, the Complainant has asserted that it is the Respondent's clear intent to prevent the Complainant from registering the Domain Name. Also, the way the Domain Name is used may be detrimental. According to the Complainant, referring to Don Cornelius Productions, Inc. v. Fred Fluker d/b/a/ Futurevision,
WIPO Case No. DTV2001-0026, the inactivity of the Domain Name is also proof of the Respondent's bad faith.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Language of proceedings
The Complainant filed the Complaint in the English language and submitted a supporting request for English to be the language of the administrative proceedings, both Parties not being familiar with the Dutch language.
In absence of any communication from Respondent the Panelist finds that it cannot be established if the Respondent understands the Dutch language. According to the Whois register, the Respondent's address is in Brussels, which is a Dutch (Flemish)-French bilingual city. Although the Respondent never responded to any communication in Dutch and English sent by the Center or the Complainant, he has neither objected to the Complainant's request that English be the language of proceedings. For these reasons the Panelist determines that the language of the procedure shall be English.
General remarks
Article 7.4 of the Regulations provides that, in the event that a respondent fails to submit a response, the complaint shall be granted, unless the Panel considers it to be without basis in law or in fact.
According to the Regulations, Article 2.1, the requested remedy shall be granted if the Complainant asserts and establishes each of the following:
a) that the Domain Name is identical or confusingly similar to
(I) a trademark, or trade name, protected under Dutch law in which the Complainant has rights; or
(II) a personal name registered in a Dutch municipal register of persons ("gemeentelijke basisadministratie"), or a name of a Dutch public legal entity or a name of an association or foundation located in the Netherlands under which the Complainant undertakes public activities on a permanent basis; and
b) that the Respondent has no rights to or legitimate interests in the Domain Name; and
c) that the Domain Name has been registered or is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant based its Complaint on three Spanish trademarks, an International trademark without Benelux designation and a Community trademark. According to Article 2.1 sub a (I) of the Regulations, the Complainant has to prove that the Complaint is based on a trademark protected under Dutch law in which the Complainant has rights. The Spanish and International trademarks are not valid in the Netherlands and therefore not protected under Dutch law, so that they cannot constitute a basis for the Complaint under Article 2.1 sub a (I) of the Regulations.
According to Article 6 of the Community Trademark Regulation the exclusive right to the Community trademark – which is protected under Dutch law – is obtained by its registration. Complainant's Community trademark SOFTONIC was filed on February 19, 2007, but is presently subject to opposition and has not been registered. Therefore, the Complainant has no rights in the SOFTONIC Community trademark and consequently does not hold any trademark rights protected under Dutch law.
Furthermore, the Complainant has not claimed that it has any trade name rights protected under Dutch law, that the Domain Name is identical or confusingly similar to a personal name registered in a Dutch municipal register of persons or a name of a Dutch public legal entity or a name of an association or foundation located in the Netherlands under which the Complainant undertakes public activities on a permanent basis.
For all these reasons, the Panelist finds that the Complainant has not met any of the requirements as meant in Article 2.1 sub a of the Regulations so that the Complaint must be denied.
7. Decision
For the foregoing reason the Complaint is denied.
Alfred Meijboom
Sole Panelist
Dated: October 7, 2008
