Westmore · UDRP DecisionMundoanunciox.com
The Panel ordered transfer of mundoanunciox.com after finding all three UDRP elements satisfied. The domain reproduced the MUNDOANUNCIO mark in its entirety with only a final letter “x.” The Respondent used it for online classified advertising related to the Complainants’ business, and the record showed that the associated website had displayed a light blue and white logo almost identical to the Complainants’ logo. Those circumstances supported findings that the Respondent lacked rights or legitimate interests and had registered and used the domain in bad faith with knowledge of the mark and an intention to create confusion.
The timeline behind mundoanunciox.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
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The case illustrates how a domain that contains an entire trademark plus one additional letter can remain confusingly similar, particularly where the associated website operates in the same field and adopts similar visual branding. It also shows that an assertion of free or noncommercial operation may be insufficient when the actual use is found to create source confusion and the respondent does not otherwise establish rights or legitimate interests.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION OLX Inc., OLX S.A. v. John Jairo Tabares Case No. D2013-2125 1. The Parties The Complainants are OLX Inc. and OLX S.A. of New York, United States of America (the “USA”), represented by Allende & Brea Law Firm, Argentina. The Respondent is John Jairo Tabares of Caracas, Venezuela, self-represented. 2. The Domain Name and Registrar The disputed domain name <mundoanunciox.com> (the “Disputed Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 6, 2013. On December 9, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On December 9, 2013, the Registrar 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 11, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was December 31, 2013. The Response was filed with the Center on December 31, 2013. The Center appointed Enrique Ochoa as the sole panelist in this matter on January 14, 2014. 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 Complainants OLX Inc. and OLX S.A. are companies incorporated in the State of Delaware, USA. The websites operated by the Complainants host free user-generated advertisements and provide discussion forums. The Complainants have registered the trademark MUNDOANUNCIO in respect of services in class 35 in a number of countries, including Argentina, Brazil, Chile, Mexico, Spain, Peru and USA (herein after the TRADEMARKS). These registrations predate the registration of the disputed domain name. The Complainants have registered a number of domain names containing the “mundoanuncio” term, for example <mundoanuncio.com>, <mundoanuncio.com.mx>, <mundoanuncio.co.ve>, <mundoanuncio.com.ar>, <mundoanuncio.com.br>, <mundoanuncio.cl>, <mundoanuncio.es> and <mundoanuncio.com.es>, among others. The Disputed Domain Name was created on September 4, 2012. 5. Parties’ Contentions A. Complainant The Complainants argue: - That the Disputed Domain Name registered by the Respondent is identical or confusingly similar to the TRADEMARKS in which the Complainant has rights; - That the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and - That the Disputed Domain Name has been registered and is being used in bad faith. B. Respondent The Respondent argues: - That Disputed Domain Name <mundoanunciox.com> “offers ads to escort girls”. - That “www.mundoanunciox.com” is a website totally free and “not intended to make money”. - That <mundoanunciox.com> was not registered in bad faith and that the Respondent has not acted in bad faith. 6. Discussion and Findings According to paragraph 15(a) of the Rules, the Panel shall decide a complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following: (i) that the Disputed Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) that the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel is satisfied that the Complainant has rights in the trademark MUNDOANUNCIO in various jurisdictions. A comparison between the Disputed Domain Name and the trademark MUNDOANUNCIO owned by the Complainant shows that the Disputed Domain Name is clearly confusingly similar to the extent that it reproduces the mark in its entirety. The addition of the letter “x” in the final part of the Disputed Domain Name does not in the Panel’s view affect this finding of confusing similarity. As a result, based on the rights of the Complainant in the trademark MUNDOANUNCIO and on the confusing similarity between this mark and the Disputed Domain Name, the Panel finds that the condition of paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights to or legitimate interests in the Disputed Domain Name by demonstrating any of the following: (i) before any notice to it of the dispute, the Respondent’s use of, or demonstrable preparations to use, the Disputed Domain Name or a name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services; or (ii) the Respondent has been commonly known by the Disputed Domain Name, even if it has acquired no trademark or service mark rights; or (iii) the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark or service mark at issue. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, previous UDRP panels have consistently ruled that paragraph 4(c) of the Policy shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once the complainant has made a prima facie showing. See Document Technologies, Inc. v. International Electronic Communications Inc ., WIPO Case No. D2000-0270 . According to the Complainants, the Respondent has no rights in the Disputed Domain Name, it is not authorized or licensed to use the Complainants’ trademark MUNDOANUNCIO and has not been commonly known by the Disputed Domain Name. In the circumstances, the Panel is satisfied that the Complainant has made a prima facie case against the Respondent in this regard. The Panel is of the opinion that the Respondent has not rebutted this prima facie case. The Respondent indeed registered a domain name that fully incorporates the trademark MUNDOANUNCIO owned by the Complainant and used it to advertise online classifieds, an activity that is related to the Complainant’s business activities. In addition, there is evidence in the case record that at some point in the past the website at the Disputed Domain Name displayed a light blue and white logo almost identical to the Complainants’. By displaying such a logo on the website associated with the Disputed Domain Name, it is clear to this Panel that the Respondent’s intention was to create certain confusion among Internet users. Such behavior cannot be construed as giving rights or legitimate interests to the Respondent. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name pursuant to paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of registration and use of a domain name in bad faith: (i) circumstances indicating that the respondent registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the Disputed Domain name; (ii) circumstances indicating that the respondent registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; (iii) circumstances indicating that the respondent registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) circumstances indicating that the respondent intentionally is using the disputed domain name in an attempt to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location. These examples are not exhaustive as the overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant is seeking to profit from and exploit the trademark of another. See Match.com, LP v. Bill Zag and NWLAWS.ORG , WIPO Case No. D2004-0230 . In this case, the Panel is satisfied that the Disputed Domain Name was registered and is being used in bad faith. It is clear to this Panel that the Respondent’s use of the Disputed Domain Name creates confusion with the Complainants’ activities since both relate to the advertising of online classifieds. As indicated before, there is evidence in the case record that at some point in the past the website at the Disputed Domain Name displayed a light blue and white logo almost identical to the Complainants’. The Panel believes that this is a clear indicative for this Panel that the Respondent knew of Complainants’ trademark MUNDOANUNCIO when registering the Disputed Domain Name and that his intention was to create certain confusion among Internet users. On this basis, the Panel finds that the Respondent registered and uses the Disputed Domain Name in bad faith pursuant to paragraph 4(b) of the Policy, thus the condition of paragraph 4(a) (iii) of the Policy is met. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <mundoanunciox.com> be transferred to the Complainant. Enrique Ochoa Sole Panelist Date: January 29, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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