Westmore · UDRP DecisionSistemasventanasvelux.com
The Panel ordered transfer of <sistemasventanasvelux.com> based on the Respondent’s unilateral and unambiguous consent to the remedy requested. Relying on paragraph 4.13 of WIPO Overview 2.0, the Panel found no reason to discuss or make findings under the three substantive UDRP elements.
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This decision illustrates the procedural route by which a panel may order transfer without adjudicating the three UDRP elements when a respondent gives unilateral and unambiguous consent to the requested remedy. It should therefore be treated as a consent-transfer decision, not as substantive authority on confusing similarity, legitimate interests, or bad faith.
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 VKR Holding A/S v. Francisco Fernandez Coudeiro, Providers Service Madrid, S.L. Case No. D2016-1718 1. The Parties The Complainant is VKR Holding A/S of Hørsholm, Denmark, internally represented. The Respondent is Francisco Fernandez Coudeiro, Providers Service Madrid, S.L. of Madrid, Spain, represented by José Antonio Rivera Hidalgo. 2. The Domain Name and Registrar The disputed domain name <sistemasventanasvelux.com> is registered with 1&1 Internet SE (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 24, 2016. On August 24, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 31, 2016, 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 sent an email communication to the parties on September 2, 2016 regarding the language of the proceeding, as the Complaint has been submitted in English and the language of the registration agreement for the disputed domain name is Spanish. The Complainant submitted a request for English to be the language of the proceeding on September 5, 2016. The Respondent did not submit any communication regarding the language of the proceeding. The Center sent an email communication to the Complainant on September 12, 2016 requesting clarification of the Registrar’s identity and location address. The Complainant filed an amended Complaint on September 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 September 14, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 4, 2016. The Response in Spanish was filed with the Center on October 3, 2016. The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on October 26, 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, VKR Holding A/S, is the owner of the VELUX Group a worldwide manufacturer of roof windows and accessories. The Complainant claims to have presence in 40 countries throughout the world and to sell its products in approximately 90 countries. The Complainant owns European Union Trademark Registrations No. 955609 VELUX registered on March 31, 2000 in classes 6,7,9 and 11; No. 651869 VELUX registered on July 16, 2004 in classes 6,9,16,19,20,22,24,37,41,and 42 and Registration No.5260229 VELUX registered on June 12, 2007 in classes 19,20,24 and 37. In addition, the Complainant claims to own 450 trademark registrations including or incorporating the word VELUX in 450 countries throughout the world. The disputed domain name <sistemasventanasvelux.com> was registered on October 23, 2015. According to the evidence provided by the Complainant, the disputed domain name resolves to a website to promote services offered in connection with the Complainant’s products and uses the Complainant’s trademark describing itself as “part of” the VELUX installer partnership. 5. Parties’ Contentions A. Complainant The Complainant claims: (i) that the disputed domain name <sistemasventanasvelux.com> is confusingly similar to the trademark VELUX 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 was registered and is being used in bad faith. In light of the above, the Complainant requests the Panel to order the transfer of the disputed domain name to the Complainant. B. Respondent The Respondent filed a Response in Spanish to the Complaint and has indicated that (i) the Respondent provides services for the development and maintenance of websites of its clients and registers domain names on behalf of its clients; (ii) the Respondent acquired the disputed domain name for the provision of services to its client; (iii) that after notification of the Complaint the Respondent’s client has chosen to change the disputed domain name and to not request its renewal, accepting the Complainant’s request to have the disputed domain name transferred to the Complainant. 6. Discussion and Findings A. Language of the Proceeding The Rules, paragraph 11(a), provides that “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” The language of the Registration Agreement for the disputed domain name is Spanish. The Complainant has filed its Complaint in English and has requested that the language of the proceedings be English, “as this is the most convenient for both the Complainant and the Respondent”. As mentioned above, the Respondent did not respond to the Center’s communication to the parties of September 2, 2016 regarding the language of the proceeding. Despite having been given the chance to do so, the Respondent has not objected to the Complainant’s request that the language of the proceedings be English and, moreover, has accepted the Complainant’s claim for the disputed domain name to be transferred to the Complainant, which clearly means that the Respondent fully understands the English language, despite having filed its Response in Spanish. In the given circumstances, the Panel finds that it is in the interest of both Parties for this proceeding to continue in the English language. B. Substantive elements of the Policy Paragraph 4(a) of the Policy directs that a complainant must prove each of the following three elements to obtain an order for the disputed domain name to be or transferred: (i) the disputed domain name registered by the respondent is identical or confusingly similar to a trade mark or service mark in which the complainant has rights; (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. As noted above, the Complainant has requested transfer of the disputed domain name and the Respondent has stated in its Response that it has no objection to the transfer of the disputed domain name to the Complainant. Paragraph 4.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Second Edition ("WIPO Overview 2.0") considers whether a UDRP panel can decide a case based on a respondent's consent to transfer. In relevant part, “Where the parties to a UDRP dispute have not succeeded in settling a case between themselves prior to the rendering of a panel decision, but the respondent has given its unilateral and unambiguous consent on the record to the remedy sought by the complainant, a panel may at its discretion order transfer (or cancellation) of the domain name on that basis alone.” In view of the Respondent having accepted the Complainant’s request to have the disputed domain name transferred to the Complainant, the Panel finds that there is no reason for the Panel to discuss the three elements of paragraph 4(a) of the Policy and find that the Complaint meets all three of them to order that the disputed domain name be transferred to the Complainant. 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 <sistemasventanasvelux.com> be transferred to the Complainant. Miguel B. O'Farrell Sole Panelist Date: November 4, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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