Westmore · UDRP DecisionZeca.com
The Panel found that <zeca.com> was identical to the Complainant’s ZECA trademark and that the Respondent lacked rights or legitimate interests. The Complaint nevertheless failed because the evidence did not establish that the Respondent knew of the Complainant or its rights when the Domain Name was registered or that the Domain Name was registered or used in bad faith. In particular, the Complaint lacked substantive evidence of the Complainant’s reputation before the Domain Name’s October 25, 2003 registration, and the parking-page links concerned music and music promotion rather than the Complainant’s field of business.
The timeline behind zeca.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
The case illustrates that an exact-match domain, longstanding trademark registrations, an unrebutted complaint, and a successful prima facie showing on rights or legitimate interests do not dispense with the separate requirement to prove bad-faith registration and use. The timing and substance of reputation evidence were critical: materials showing US activity years after the Domain Name’s first registration did not establish probable awareness or targeting at the relevant time.
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 Zeca S.p.A. v. Whois Privacy Protection Service, Inc. / Domain Vault LLC Case No. D2017-0158 1. The Parties The Complainant is Zeca S.p.A. of Feletto Canavese, Italy, represented by Studio Legale Turini, Italy. The Respondent is Whois Privacy Protection Service, Inc. of Kirkland, Washington, United States of America (“United States”) / Domain Vault LLC of Dallas, Texas, United States. 2. The Domain Name and Registrar The disputed domain name <zeca.com> (the “Domain Name”) is registered with Name.com, Inc. (Name.com LLC) (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 27, 2017. On January 27, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 30, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 6, 2017 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 February 8, 2017. 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 February 13, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 5, 2017. The Respondent did not submit any response. The Center appointed Ian Lowe as the sole panelist in this matter on March 20, 2017. 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 According to the Complaint, the Complainant is an Italian company which was founded approximately 60 years ago as a manufacturer of accessories and spare parts for motor vehicles. However, it is apparent from the Complainant’s website and from the catalogue annexed to the Complaint that the Complainant now focuses on a range of tools and accessories that might typically be used by vehicle mechanics, such as pneumatic hose reels, lamps, extension reels and other garage tools. The Complainant is the proprietor of a number of registered trademarks for ZECA (the “Mark”), including International trademark number 571861, registered on February 5, 1991, designating a number of territories in Europe as well as China, Japan, North Korea and Singapore; and Italy trademark number 1574498, registered on January 30, 2014, but which appears to have some connection with an Italian registration number 122307 for the Mark dating from April 4, 1955. The Complainant is also the registrant of the domain name <zeca.it> registered on July 20, 1999 and a number of other domain names comprising the Mark. The Domain Name was registered on October 25, 2003. According to the screenshot annexed to the Complaint, the Domain Name resolved at the time of preparation of the Complaint to a parking webpage comprising links to a number of third party websites primarily related to music and music promotion. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to the Mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that: (i) the 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 Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has uncontested rights in the Mark, by virtue of its trademark registrations. It also appears that the Complainant has used the Mark for around 60 years and as a result has acquired goodwill and reputation in respect of the Mark. Ignoring the generic Top-Level Domain (“gTLD”) “.com”, the Domain Name simply comprises the entirety of the Mark. Accordingly, the Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in respect of the Domain Name, which comprises a word with no obvious meaning in the English language. There is no evidence as to historical use of the Domain Name, and the current use appears to be for a parking page with links to third party websites related to music and music promotion. There is no evidence as to why such links have been created. The Respondent has not used the Domain Name in connection with a bona fide offering of goods or services and there is no suggestion that it has ever been known by the Domain Name. The Respondent has chosen not to respond to the Complainant or to take any steps to counter the prima facie case established by the Complainant. In the circumstances, the Panel finds on balance that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith There is no evidence as to when the Domain Name was acquired by the Respondent and the Registrar was unable to confirm such date in response to the Center’s Request for Registrar Verification. The Domain Name was first registered on October 25, 2003, over 13 years ago. The Complainant states that it can hardly believe that the Respondent was not aware of the Complainant’s reputation and trademarks at the time it registered the Domain Name and that there is no evidence of any reasonable efforts by the Respondent to discover the existence of third party rights in the Domain Name before it was registered. Although the Complainant has apparently been in business for over 60 years, there is no substantive evidence in the Complaint of the extent of its commercial activities or of its marketing or turnover over that period or, in particular, in the period prior to the date of registration of the Domain Name. There is no evidence either of the Complainant having established any reputation or goodwill in the United States, where the Respondent is based, save for the statement in the Complaint that “The notoriety and diffusion of Complainant’s trademarks, also in the USA, are proved by the documents hereby attached (Annex 11).” However, so far as the Panel can determine, Annex 11 comprises: a copy of the Complainant’s catalogue; some invoices addressed to customers in the United States between 2007 and 2016; and invoices and photographs relating to participation by the Complainant in exhibitions organized by the Industrial Suppliers Association (“ISA”) in the United States between 2013 and 2016. Accordingly, in the Panel’s view, the Complainant has not established, on the balance of probabilities, that the Respondent would have been aware of the Complainant or such rights as it had in the Mark at the date of registration of the Domain Name. Furthermore, there is nothing in the Complaint to support an argument that by virtue of the use to which the Respondent has put the Domain Name it should be inferred that the Respondent registered the Domain Name in bad faith. The only evidence of use of the Domain Name is the screenshot of the web page to which the Domain Name resolved at the date of preparation of the Complaint, which is a parking page with, presumably, pay-per-click links to third party websites, but which relate to music and music promotion. In the circumstances, the Panel finds that the Complainant has failed to establish either that the Domain Name has been registered or is being used in bad faith. 7. Decision For the foregoing reasons, the Complaint is denied. Ian Lowe Sole Panelist Date: April 3, 2017
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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