Administrative panel decision mr. Lionel Andres Messi Cuccittini V. Carolina Rodrigues, Privacy Limited
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ADMINISTRATIVE PANEL DECISIONMr. Lionel Andres Messi Cuccittini v. Carolina Rodrigues, Privacy LimitedCase No. D2015-21031. The PartiesThe Complainant is Mr. Lionel Andres Messi Cuccittini of Barcelona, Spain, represented by Red Points Solutions, S.L., Spain. The Respondent is Carolina Rodrigues, Privacy Limited of Belize City, Belize. 2. The Domain Name and RegistrarThe disputed domain name 3. Procedural HistoryThe Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 19, 2015. On November 19, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 19, 2015, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 27, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 17, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 18, 2015. The Center appointed Willem J. H. Leppink as the sole panelist in this matter on January 5, 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 BackgroundThe following facts are undisputed. The Complainant is a successful professional football player who has, for the most part, developed his sporting career at Futbol Club Barcelona, competing in the Spanish Professional Football League, and at the Argentine national football team. The Complainant is known by various names including “Messi”, “Lionel Messi”, “Lio Messi” and “Leo Messi”. The Complainant is the owner of various trademarks consisting of or containing the word elements LIONEL MESSI, LEO MESSI and LEO as a word mark or as a word/device mark. In particular the Complainant has rights in the Community Trade Mark LIONEL MESSI with registration number 006353131, applied for on October 11, 2007 and several Spanish trade marks for LEO MESSI for goods and services in classes 3, 9, 14, 16, 25 and 28 since 2006 (the “Trademark”). The Domain Name was registered on December 17, 2007. 5. Parties’ ContentionsA. ComplainantInsofar as relevant, the Complainant contends the following. The Complainant registered the Trademark prior to the Respondent’s registration of the Domain Name. The visual comparison between the trademark LEO MESSI and the Domain Name shows a virtual identity between them, with only one single letter differing. Given that the only difference between the compared terms is the replacement of the letter “e” for the letter “i”, we must conclude that the confusing similarity between the terms “Lio Messi” and “Leo Messi” is clear. The comparison between the Trademark and the Domain Name proves a confusing similarity between them, which could even be regarded as a virtual identity. Furthermore, Internet users will clearly associate the Domain Name with Complainant and the Trademark, and thus the risk of confusion among them is very high. The Respondent has not used or is not preparing to use the Domain Name in connection with a bona fide offering of goods or services. The Respondent is not commonly known by the name “Lio Messi” and the Respondent is also not making a legitimate noncommercial use or fair use of the Domain Name. The Complainant has never authorized the Respondent to register the Domain Name. In the light of the information available and without any evidence to the contrary, the Respondent has no rights to, or legitimate interests in the Domain Name. The Domain Name is currently inactive and is being used as a domain parking with pay-per-click links. The Respondent is therefore taking unfair advantage of the goodwill and renown of the Trademark and the Complainant itself. The Respondent has no rights and/or legitimate interests in the Domain Name. The Respondent is seeking commercial advantage from the registration and use of the Domain Name and is capitalizing the goodwill of the Trademark. This is a clear indicator that the Domain Name was registered and is being used in bad faith. The Respondent was fully aware of the identity of the Complainant at the time the Domain Name was registered as the Domain Name corresponds in its entirety to the name and surname of the Complainant, and that the Complainant was an internationally renowned football player at least since 2006. Consequently, the Respondent knew or should have known that the Complainant was also the owner of the Trademark. The Respondent has been involved in three previous UDRP cases and has never submitted a response. In all those cases the Panel ordered to transfer the domain name to the complainant. This could be considered as a pattern of conduct by the Respondent. To conclude, the Respondent has acted in bad faith from the very moment it acquired the Domain Name, given that the Respondent knew the stature enjoyed by the Complainant in the world of sport and therefore anticipated the significant amount of web traffic that the Domain Name would attract and the possibility of obtaining an economic return from it, as the Respondent is actually doing. The pattern of conduct shown by the Respondent and the fact that the Respondent is deliberately concealing its identity and contact details, reinforce the obviousness that the Respondent registered and is using the Domain Name in bad faith. B. RespondentThe Respondent did not reply to the Complainant’s contentions. 6. Discussion and FindingsPursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements:
A. Identical or Confusingly SimilarThe Complainant must demonstrate that it has rights in a trademark and, if so, the Domain Name must be shown to be identical or confusingly similar to the Trademark. The Panel finds that the Domain Name is confusingly similar to the Complainant’s Trademark, in particular the trademark LEO MESSI. The only difference in that respect is the fact that the letter “e” was replaced by the letter “i”. The Panel takes into account that common or obvious misspellings of a trademark will normally be considered as confusingly similar to that trademark (see Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775). The Panel also takes into account that Internet users considering the Domain Name without awareness of its content may believe that the Domain Name is in some way connected and associated with the Complainant (see Covance, Inc. and Covance Laboratories Ltd. v. The Covance Campaign, WIPO Case No. D2004 0206; CBS Broadcasting Inc., f/k/a CBS Inc v. Nabil Z. aghloul, WIPO Case No. D2004 0988). For all the foregoing reasons, the Panel is satisfied that the first element of the Policy is met. B. Rights or Legitimate InterestsThe Respondent did not reply to the Complainant’s contentions. For that reason, the Panel has taken careful note of the factual assertions that have been made and supported by evidence by the Complainant. In particular, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has rights or legitimate interests in the Domain Name, such as: (i) use or preparation to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services prior to notice of the dispute; or (ii) being commonly known by the Domain Name (as an individual, business or other organization) even if the Respondent has not acquired any trademark or service mark rights; or (iii) making 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. There is no evidence in the case file that the Respondent has any rights or legitimate interests in the Domain Name. The Respondent does not seem to be affiliated with the Complainant in any way. There is no evidence that Lio Messi is the Respondent’s name or that the Respondent is commonly known as Lio Messi. There is also no evidence that the Respondent is, or has ever been, a licensee of the Complainant or that the Respondent has ever asked, or has ever been permitted in any way by the Complainant to register or use the Complainant’s marks, or to apply for or use any domain name incorporating any of the trademarks. Furthermore, the use of the Domain Name cannot be considered a bona fide offering of goods or services. In particular, the Respondent did not demonstrate any use or demonstrable preparation to use the Domain Name in connection with a bona fide offering of goods or services as the Respondent is not using the Domain Name at all as it is currently inactive. It is also clear that the Respondent is not making any legitimate noncommercial or fair use of the Domain Name. Finally, given the circumstance of this case, the Panel finds that the Respondent’s lack of rights or legitimate interests in the Domain Name may also be inferred by the fact that no response was filed by the Respondent. According to earlier UDRP decisions “non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights” (see Pomellato S.p.A. v. Richard Tonetti, WIPO Case No. D2000 0493 and GA Modefine S.A. and Giorgio Armani S.p.A. v. Yoon-Min Yang, WIPO Case No. D2005 0090). Therefore, based on the evidence, the Panel is satisfied that the second element of the Policy is met. C. Registered and Used in Bad FaithThe Panel finds that the Domain Name was registered and is being used in bad faith. In light of the evidence filed by the Complainant and the absence of a reply, the Panel finds that the Complainant and its Trademark are well-known throughout the world. Accordingly, in the Panel’s view, the Respondent must have been aware of the Complainant’s existence and rights when it registered the Domain Name. This is emphasized by the fact that the Domain Name is being used as a parking page with pay-per-click links. The advertising links on the website behind the Domain Name redirected users to external websites which were all related to the Complainant. This behavior of the Respondent fits the example of paragraph 4(b)(iv) of the Policy, i.e., that by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online 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 the Respondent’s website or location. In addition the Panel takes into account that the Respondent has shown a pattern of similar conduct as in three other matters in which transfer was ordered it has not replied to the complaint. Although it does not fit the exact example of paragraph 4(b)(ii) of the Policy, this is in the view of the Panel a circumstance that underpins the bad faith of the Respondent. Although the lack of a reply by the Respondent as such cannot by itself lead to the conclusion that there is use in bad faith, the cumulative circumstances as outlined in the decision are sufficient for the Panel to find that the use by the Respondent is in bad faith. In light of the above circumstances, the Panel is satisfied that the third element of the Policy is met and that the Domain Name was registered and is being used in bad faith. 7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name Willem J. H. Leppink Sole Panelist Date: January 7, 2016 |