T.V. AZTECA, S.A. de C.V.
COMPLAINANT,

vs.

HECHOS DEL INTERIOR
RESPONDENT.

DECISION
Forum File FA0004000094670

This is a DOMAIN NAME dispute pursuant to the Internet Corporation for Assigned Names and Numbers (ICANN) Domain Name Dispute Policy (the Policy).  Arbitration was requested in this case and Marilyn W. Carney, who has confirmed to the National Arbitration Forum that she has no known conflict of interest, was assigned as Arbitrator.  The matter was decided using the written record, independent searches of the internet   and consulting Spanish language dictionaries.

For the reasons explained below, the Arbitrator has reached the conclusion that the domain name should not be transferred to the Complainant.

THE DOMAIN NAME

This dispute concerns the domain name hechos.com.  The registrar for this domain name is Network Solutions, Inc.

THE PARTIES

T.V. AZTECA, S.A. de C.V. (hereafter Azteca) filed a complaint with the National Arbitration Forum on April 27, 2000 naming Hechos Del Interior (hereafter Hechos) as the Respondent.  Azteca has requested that the Domain Name hechos.com be transferred from Hechos to Azteca.

No response has been forthcoming from the Respondent.

SUMMARY OF EVIDENCE

Azteca is a Mexican corporation represented by Fulbright & Jaworski, L.L.P., attorneys at law, Houston, Texas.  Azteca, through its counsel, has attempted to communicate with Hechos by United States mail and by E-mail.  A letter to Hechos dated March 20, 2000 was returned by the U.S. Post Office with a notation indicating the respondent had moved and left no forwarding address; another notation stated:  gone 2 years to Argentina.  Azteca, in furtherance of its attempt to locate Hechos, communicated with the State of Georgia Secretary of State Corporate Record Division.  The report indicated that Hechos is a Domestic Nonprofit Corporation which was in active status – not in compliance and not in good standing.  It had been incorporated February 25, 1998, with a registered office in Marietta, Georgia, and a registered agent located at that office address.  Complainant’s Exhibit A shows that Hechos registered the Domain Name on January 8, 1997 with Network Solutions, Inc.

Azteca is the holder of eleven trademarks and service marks registered in Mexico and each of these registrations is for the mark HECHOS, either alone or with a design.  Exhibit B, 1 to 4, shows only the word HECHOS; Exhibit B, 5 to 11, shows the word HECHOS with a design in the O of the word.  (The copy was not clear, but it appears to be a map of the Western Hemisphere in the O.)

The Complainant alleges that they have monitored the hechos.com domain site and that it has not been operational during a two month period.  Complainant also believes that it appears that Hechos has abandoned all intentions to use this domain name.  They also note that Hechos could resurrect the site and use it in association with goods and services covered by Complainant’s trademarks and service marks.

FINDINGS OF FACT

The undisputed evidence establishes that:

1.  Complainant is a corporation, and is the owner and registrant of trademarks and service marks including the word HECHOS.

2.  Respondent is a State of Georgia domestic nonprofit corporation which was incorporated for unstated reasons.  It registered the Domain Name hechos.com with Network Solutions, Inc. on January 8, 1997.

3.  Complainant’s trademarks and service marks indicate they are used in connection with a variety of goods and services.  Specifically, it has used the HECHOS mark in the United States as the result of its broadcasts being received in at least the border states of the U.S.

4.  Hechos is a Spanish word which could loosely be translated to mean “doings”, “happenings”, or “events” or “news” (or, as a verb, hecho is the past participle of hacer [to do, to make]).

5.  Complainant has not established by a preponderance of the evidence that it should have exclusive use of the word Hechos.

6. Hechos is a nonexclusive name that is used in commerce by businesses other than

Complainant and Respondent as found in independent searches of the internet.

7.  Complainant has not established that the name HECHOS is exclusively identified with its business.

8.  To prevail, Complainant must establish in the record that Respondent:

(a) registered a domain name that is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

            (b)  has no rights or legitimate interests in respect of the domain name; and

            (c)  has been registered and is being used in bad faith.

9.  While hechos.com may be confusingly similar to Complainant’s trademarks and service marks, the word hechos is a generic word and may be used by many others.

10. Complainant has failed to meet its burden of showing that Respondent has no rights

or legitimate interests in the domain name, as the record is silent as to what the rights and/or interests of Respondent are.

11.  Complainant has further failed to show that the use of the word hechos  is or should be exclusive to Complainant.

12.  Complainant has failed to meet its burden of showing that Respondent “registered and…used in bad faith” the domain name in violation of ICANN’s Uniform Domain Name Resolution Policy, Paragraph 4(b)(i)(ii)(iii) or (iv).

Complainant has requested that the Domain Name hechos.com be transferred from Respondent to Complainant.

CONCLUSIONS

1.  The Domain Name hechos.com is so close as to be identical or confusingly similar to Complainant’s trademarks and service marks.

2.  Complainant failed to show that it should be granted exclusive use of the disputed Domain Name, as it is not exclusively associated with its business.

3.  Complainant failed to show that Respondent is attempting to mislead customers or tarnish the name HECHOS to the detriment of the Complainant.

4.  Complainant failed to show that Respondent has registered or used the Domain Name in bad faith.  It views the non-use of the site as abandonment, but ICANN has no policies relating to abandonment.

DECISION

Based on the above findings and conclusions, it is the decision of the Arbitrator that The Domain Name HECHOS.COM registered by Respondent remain with Respondent.

This the 9th day of June, 2000.             Honorable Marilyn W. Carney, Arbitrator