Westmore · UDRP DecisionFlammea.com
The Panel denied the Complaint. It found the disputed domain name identical to the Complainant's FLAMMEA trademark, but held that the Respondent had rights or legitimate interests because Flammea was his family name and he was commonly known by that name. The Panel also found that the Respondent had continuously held the domain name since September 4, 2006, before the trademark application and registration, and that there was no evidence of bad-faith registration.
The timeline behind flammea.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind flammea.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates that documentary proof of a matching family name can establish rights or legitimate interests even where the domain is parked. It also demonstrates the importance of direct, contemporaneous registrar invoices and renewal records when historical WhoIs data suggests a different ownership chronology. The pre-trademark registration date independently defeated the allegation that the Respondent registered the domain to target the later mark.
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 CKL Holdings N.V. v. Paul Flammea Case No. D2016-1340 1. The Parties The Complainant is CKL Holdings N.V. of Antwerpen, Belgium, represented by Morton & Associates, United States of America. The Respondent is Paul Flammea of Campbellfield, Australia. 2. The Domain Name and Registrar The disputed domain name <flammea.com> 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 June 30, 2016. On July 1, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date the Registrar 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 July 8, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 13, 2016. The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 4, 2016. The Response was filed with the Center on August 3, 2016. The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on August 10, 2016. 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, CKL Holdings N.V., does not elaborate on its business beyond stating its ownership of the trademark FLAMMEA: FLAMMEA, Community Trademark, Office for Harmonization in the Internal Market, registered August 7, 2008, registration number 6281562, classes 9, 11, 35. The Respondent is an individual named Francesco Paul Flammea. The disputed domain name was first registered in the name of Paul Flammea on September 4, 2006. 5. Parties’ Contentions A. Complainant The Complainant contends that it is the owner of the European Union Intellectual Property Office trademark FLAMMEA, registered on August 7, 2008 under No. 006281562, which it states has been prominently and continuously used in global commerce since registration. The Complainant has produced a copy of the trademark registration certificate, and a certificate of its transfer to the Complainant dated March 30, 2016. The Complainant contends that the disputed domain name is identical or confusingly similar to its trademark in spelling, sound and overall commercial impression. The addition of the generic Top-Level Domain (“gTLD”) “.com” should not be considered distinguishing. The Complainant says it believes the disputed domain name was transferred to the Respondent between October 7, 2010 and September 6, 2011. A DomainIQ Report indicates that on the former date it was owned by Richard Marcello, and on the latter date it was owned by the Respondent. The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not a licensee or affiliate of the Complainant or authorised to use the Complainant’s trademark. The disputed domain name has been parked for almost five years. There is no substantive content on the website except for advertisement links. The Respondent is not making a legitimate or fair use of the disputed domain name. The Complainant further contends that the disputed domain name was registered and is being used in bad faith. The Complainant believes the Respondent had knowledge of the trademark FLAMMEA prior to acquisition of the disputed domain name and sought to capitalise on its goodwill. There is bad faith because of the absence of legitimate use of the disputed domain name. The Complainant says that since the Respondent has not used the disputed domain name there is no conceivable basis other than bad faith for its registration. The Complainant believes the Respondent’s intention is to sell the disputed domain name to the Complainant or a competitor, or to disrupt the Complainant’s business by confusion, or to default the Complainant. The Complainant has cited a number of previous decisions under the Policy. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent denies the Complaint. The Respondent contends that his personal name is Francesco Paul Flammea and has produced colour copies of his Australian passport and Australian driver licence. The Respondent says he purchased the disputed domain name on September 9, 2006 and has owned it continuously since. He has produced copies of an invoice from Network Solutions dated September 4, 2006 and renewal invoices for the years 2007, 2008, 2009, 2010 and 2011. He says that in 2012 he transferred the disputed domain name to his GoDaddy account, where it remains. He has produced copies of a GoDaddy Transfer Acknowledgement and an Order Confirmation both dated February 6, 2012. The Respondent says he has never offered the disputed domain name for sale. The Respondent says the name “Flammea” is his birth name, the family name and not a business name. The family is very proud of its name and he would never use it in bad faith. The disputed domain name will be brought into use when appropriate and until then will remain parked, as is normal for domain names without a website. 6. Discussion and Findings Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable dispute-resolution provider, in compliance with the Rules, that: “(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) you have no rights or legitimate interests in respect of the domain name; and (iii) your domain name has been registered and is being used in bad faith”. The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute. A. Identical or Confusingly Similar The Complainant has produced satisfactory evidence of its rights in the registered trademark FLAMMEA. The disputed domain name <flammea.com>, disregarding the gTLD designation “.com”, is found by the Panel to be identical to the trademark FLAMMEA under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has asserted that the Respondent is not connected with or a licensee of the Complainant and has no rights or legitimate interests in respect of the disputed domain name. Paragraph 4(c) of the Policy provides for the Respondent to contest the Complainant’s prima facie case under paragraph 4(a)(ii) of the Policy and to establish rights or legitimate interests in a disputed domain name by demonstrating, without limitation: “(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” The Respondent seeks in effect to establish rights and legitimate interest in the disputed domain name under the provisions of paragraph 4(c)(ii) of the Policy. The Respondent says his name is Francesco Paul Flammea and that he is also known as Paul Flammea and Frank Flammea. In evidence he has produced electronically a good quality colour scan of the identity page of his Australian passport showing the full name Francesco Paul Flammea, the passport number, Australian nationality, and date of birth. He has also produced electronically a good quality colour scan of his current Australian driver licence in the name of Francesco P Flammea, showing the same date of birth as on the passport. As far as the Panel can ascertain, on the passport and on the driver licence the highly distinctive signatures are written in the same hand and the photographs are of the same person. The Panel sees no reason to question the authenticity of this evidence. The driver licence shows a street address the same as appeared on the receipt for the disputed domain name issued by Network Solution dated September 4, 2006 and on Network Solutions annual renewal notices up to June 23, 2011, all in the name of Paul Flammea. The Complainant asserts that the Respondent acquired the disputed domain name between October 7, 2010 and September 6, 2011, and has produced part of a DomainIQ enquiry report dated July 13, 2016, showing the registrant on October 7, 2010 to be Richard Marcello. The significance is that these dates are later than the registration of the FLAMMEA trademark. Network Solutions invoices before and during this period, on September 9, 2010 and June 23, 2011, show the disputed domain name continuing to be renewed in the name of Paul Flammea. On or about February 6, 2012, according to a receipt emailed by GoDaddy, the service provider was changed to GoDaddy and the customer used the name Frank Flammea. The most recent renewal receipt from GoDaddy dated September 2, 2015 was sent to Frank Flammea, however the WhoIs, as last updated on September 2, 2015, continues to show the registrant name Paul Flammea. The receipts would appear to be the more direct evidence. Having regard to all the evidence the Panel finds on the balance of probabilities that the registrant of the disputed domain name continuously since its creation on September 4, 2006 has been the Respondent, Paul Flammea. The discrepancy is of no consequence, however, because the wording of paragraph 4(c)(ii) of the Policy is unequivocal. The distinctive component of the disputed domain name is “flammea”, the evidence demonstrates convincingly that the Respondent’s family name is Flammea, and the Panel finds that he has been commonly known by that name. The Complainant has failed to prove that the Respondent does not have rights or legitimate interests in the disputed domain name under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Whilst it is not necessary to proceed to determine bad faith, the Panel records summarily that the disputed domain name was created a year before the Complainant’s trademark was applied for and nearly two years before trademark registration was granted. There is no evidence the Respondent had any privileged prior knowledge or reason to anticipate the trademark plans of the Complainant or of the trademark’s previous owner. The Panel sees no evidence that the disputed domain name was registered for the purpose of profitable sale, or in a pattern of making blocking registrations, or to disrupt the Complainant’s business, or to confuse the Complainant’s customers, or for any other reason than in good faith to secure the family name. The Panel finds that the Complainant has failed to prove the disputed domain name was registered in bad faith under paragraph 4(a)(iii) of the Policy. 7. Decision For the foregoing reasons, the Complaint is denied. Dr. Clive N.A. Trotman Sole Panelist Date: August 18, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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