DECISION

Inverlink Consultores S.A. v. Besa, S.A.

Claim Number: FA0106000097387

PARTIES

Complainant is Inverlink Consultores S.A., Santiago, Chile (“Complainant”) represented by Jennifer L. Myron, of Arent, Fox, Kintner, Plotkin & Kahn.  Respondent is Besa, S.A., Santiago, RM, Chile (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <inverlink.com>, <inverlink.net>, and <inverlink.org> registered with Network Solutions.

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as Panelist in this proceeding.

John J. Upchurch as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on June 7, 2001; the Forum received a hard copy of the Complaint on June 11, 2001.

On June 12, 2001, Network Solutions confirmed by e-mail to the Forum that the domain names <inverlink.com>, <inverlink.net>, and <inverlink.org> are registered with Network Solutions and that Respondent is the current registrant of the name.  Network Solutions has verified that Respondent is bound by the Network Solutions 5.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On June 12, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of July 2, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@inverlink.com, postmaster@inverlink.net, and postmaster@inverlink.org by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On July 9, 2001, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch as Panelist.

Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent.”  Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The disputed domain names are confusingly similar to Complainant’s registered marks.

Respondent has no rights or legitimate interests in the disputed domain names.

Respondent registered and used the disputed domain names in bad faith.

B. Respondent

No Response submitted.  Therefore, Pursuant to ¶ 5(e) and ¶ 14 of ICANN Rules, the Panel shall decide the dispute based upon the Complaint.

FINDINGS

Complainant is the owner of the following trademark registrations:

INVERLINK, Reg. No. 407.322 (Chile), dated May 31, 1993, in International Class 36, used in connection with a financial company operating as intermediary agent broker in purchase and sale of foreign currency, leasing company, insurance agency, securities agency, stock broker, financial and organizational advising, and financial appraisals of projects and investments. 

INVERLINK, Reg. No. 423.227 (Chile), dated March 15, 1994, in International Class 36, used in connection with Inverlink label, including a design and the word “INVERLINK,” to represent its financial company and services.  

INVERLINK, Reg. No. 560.556 (Chile), dated January 31, 2000, in International Class 36, used in connection with mutual funds and investment funds management services, and in International Class 42, used in connection with a health institution.

Respondent registered the domain names <inverlink.com>, <inverlink.net>, and <inverlink.org> on February 17, 2000.  Mr. Alfonso Arancibia, a former employee of Complainant, is identified as the administrative, technical and billing contact for Respondent on each domain name registration.

Respondent is using the <inverlink.com> domain name to automatically divert users to another address <tn.cl> a commercial website that promotes, inter alia, business and media consulting services for a company named Tecnonautica – a competitor of Complainant.

Respondent registered but has failed to use the <inverlink.net> and <inverlink.org> domain names.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

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

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

The domain names at issue are <inverlink.com>, <inverlink.net>, and <inverlink.org>.  These domain names are identical to Complainant’s registered INVERLINK marks.  See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “net” or “com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8, 2001) (finding that the domain name <termquote.com> is identical to Complainant’s TERMQUOTE mark).

Therefore, the Panel finds that Complainant satisfied the requirements of Policy ¶ 4(a)(i) to show that the domain names registered by the Respondent are identical to Complainant’s registered mark.

Rights or Legitimate Interests

Respondent has failed to come forward to demonstrate any rights or legitimate interests in the disputed domain names.  See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (stating that "In the absence of a response, it is appropriate to accept as true all allegations of the Complaint"); see also Woolworths plc. v. Anderson, D2000-1113 (WIPO Oct. 10, 2000) (finding that absent any evidence of preparation to use the domain name for any legitimate purpose, the burden of proof lies with the Respondent to demonstrate that he has rights or legitimate interests).

Furthermore, there is a presumption that Respondent has no rights or legitimate interests with respect to the domain name in dispute where Respondent fails to submit a Response.  See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names").

Respondent’s registration and use of the <inverlink.com> domain name to redirect Internet users to a competitor’s website does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i).  See Ticketmaster Corp. v. DiscoverNet, Inc., D2001-0252 (WIPO Apr. 9, 2001) (finding no rights or legitimate interests where Respondent generated commercial gain by intentionally and misleadingly diverting users away from the Complainant's site to a competing website).

There is no evidence in the record, and Respondent has not come forward to establish that it is commonly known by the disputed domain names, pursuant to Policy ¶ 4(c)(ii).  See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) Respondent is not a licensee of Complainant; (2) Complainant’s prior rights in the domain name precede Respondent’s registration; (3) Respondent is not commonly known by the domain name in question).

Respondent has no rights or legitimate interests in the disputed domain names, because the domain names were registered by a former employee of Complainant, who knew or should have known of Complainant’s mark.  See Vinidex Pty. Ltd. v. Auinger, AF-0402 (eResolution Oct. 18, 2000) (finding that as a former employee, Respondent knew or should have known Complainant’s mark was in use as an integral part of the corporate name and as a trademark…the Respondent understood the legitimate interests and rights of Complainant and, by contrast, its own lack of interest or right…this is sufficient for Complainant to establish that Respondent had no rights or interest in the domain name).

Additionally, Respondent has not  acquired any rights or legitimate interests in the <inverlink.net> and <inverlink.org> domain names because these domain names have been passively held.  See Nasaco Electronics Pte Ltd. v. A&O Computer AG, D2000-0374 (WIPO July 14, 2000) (finding that the Respondent has no rights or legitimate interests in the domain name where the Respondent’s former employee registered the domain name and transferred it to the Respondent, who has since made no use of the domain name).

The Panel therefore concludes that Respondent does not have any rights or legitimate interests in the <inverlink.com>, <inverlink.net>, and <inverlink.org> domain names, and that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent is using its <inverlink.com> domain name to intentionally attract, for commercial gain, Internet users to a website location not associated with Complainant.  See Southern Exposure v. Southern Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to website that competes with Complainant’s business).

Respondent’s passive holding of the <inverlink.net> and <inverlink.org> domain names is evidence of bad faith by Respondent.  See Arab Bank for Inv. and Foreign Trade v. Akkou, D2000-1399 (WIPO Dec. 19, 2000) (finding bad faith registration and use where Respondent was employed by Complainant’s business, was fully aware of the name of her employer and made no use of the infringing domain name).

Furthermore, the fact that Respondent was a former employee of Complainant evidences that the registration and use of the disputed domain names was in bad faith.  See William Hill Org. Ltd. v. Fulfillment Mgmt. Servs. Ltd., D2000-0826, (WIPO Sept. 17, 2000) (finding bad faith registration and use where "Respondent’s employee must have had the Complainant’s trademarks in mind when choosing the disputed domain name and that the Respondent‘s interest was to deprive the Complainant of the opportunity to reflect its mark in that name until the registration expired"); see also Savino Del Bene Inc. v. Gennari, D2000-1133 (WIPO Dec. 12, 2000) (finding "Respondent's registration of the company name of his former employer as a domain name is an act of bad faith").

The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three of the elements under the ICANN Policy, the Panel concludes that the requested relief should be hereby granted.

Accordingly, it is Ordered that the <inverlink.com>, <inverlink.net>, and <inverlink.org> domain names be transferred from Respondent to Complainant.

John J. Upchurch, Panelist

Dated:   July 23, 2001

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