Generic Top Level Domain Name (gTLD) Decisions

Complainant is Grupo Financiero BBVA Bancomer, Mexico ("Complainant") represented by Liora E. Sneideman, of Van Etten Suzumoto & Becket LLP. Respondent is Micro-Music S.L., Sevilla, Spain ("Respondent").

The domain name at issue is "bbva-bancomerwap.com" registered with CORE.

The undersigned certifies that she has acted independently and impartially and to the best of her knowledge she has no known conflict in serving as the Panel in this proceeding.

Honorable Carolyn Marks Johnson sits as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 19, 2001; the Forum received a hard copy of the Complaint on January 17, 2001.

On January 18, 2001, CORE confirmed by e-mail to the Forum that the domain name "bbva-bancomerwap.com" is registered with CORE and that Respondent is the current registrant of the name. CORE has verified that Respondent is bound by the CORE 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 January 31, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 20, 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@bbva-bancomerwap.com 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 February 26, 2001, pursuant to Complainant’s request to have the dispute decided by a single member panel, the Forum appointed Honorable Carolyn Marks Johnson 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 the Respondent.

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

The Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") state the following with regard to default cases:

In this case, Respondent has not submitted a response, and therefore this Panel may infer, for the purposes of this decision, that the averments in the Complaint are true. See Ziegenfelder Co. v. VMH Enterprises, Inc. D2000-0039 (WIPO Mar. 14, 2000) (finding that based on Respondent’s failure to respond, the Panel draws two inferences: (1) that Respondent does not deny the facts asserted by Complainant, and (2) Respondent does not deny conclusions which the Complainant asserts can be drawn from the facts).

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 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 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(2) 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.

The domain name BBVA-BANCOMERWAP.COM is confusingly similar to the BANCOMER, BBV and BBVA marks. See Nintendo of America Inc v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (finding confusing similarity where the Respondent combined the Complainant’s POKEMON and PIKACHU marks to form the domain name pokemonpikachu.com); Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR) (finding that "kelsonmd.com" is identical or confusingly similar to Complainant’s federally registered service mark, "Kelson").

The Panel therefor, finds that Complainant has satisfied the requirements to show that the domain name registered by Respondent is identical to and/or confusingly similar to the marks that are owned by Complainant. Policy ¶ 4(a)(i).

Complainant has established its right to and interest in the marks that were used by Respondent to create the domain names in issue here. Respondent has not shown any right to use and/or interest in Complainant’s marks. Further, Respondent’s use of the domain name to direct Complainant’s customers to another on-line location, is neither a bona fide offering of goods or services. Policy ¶ 4(c)(i). Respondent has not shown a legitimate noncommercial use of the registered domain name. Policy ¶ 4(c)(iii). See Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding no rights and legitimate interests where Respondent diverted Complainant’s customers to his websites); Big Dog Holdings, Inc. v. Day, FA 93554 (Nat. Arb. Forum Mar. 9, 2000) (finding no legitimate use when Respondent was diverting consumers to its own website by using Complainant’s trademarks).

Moreover, neither Respondent’s company name nor the Administrative Contact’s name is even remotely similar to the domain name. Respondent is not commonly known by the domain name. Policy ¶ 4(c)(ii). See Adamovske Strojirny v Tatu Rautiainen, D2000-1394 (WIPO Dec. 20, 2000) (finding that Respondent has no rights or legitimate interests in the domain name where Respondent is not commonly known by the distinct ADAST mark); Tuxedos By Rose v. Hector Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding no rights or legitimate interests where Respondent registered domain names, which infringed upon Complainant’s mark and had no resemblance to the Respondent’s business name).

Therefore, the Panel finds that Complainant has met the requirement of showing a right to or interest in the marks in question that were used to create the domain name. Respondent has shown no right to nor interest in the mark or the domain name. Policy ¶ 4(a)(ii).

Respondent held and offered to sell the domain name to Complainant for an amount that is in excess of the reasonable costs of registering a domain name. This is some evidence of bad faith. Policy ¶ 4(b)(i). See Educational Testing Service v. TOEFL, D2000-0044 (WIPO Mar. 16, 2000) (finding that a general offer of sale combined with no legitimate use of the domain name constitutes registration and use in bad faith); American Anti-Vivisection Soc’y v. "Infa dot Net" Web Services, FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that "general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith").

Moreover, Respondent’s use of the domain name to attract Internet users to another on-line location is also evidence of bad faith registration and use of a domain name. Policy ¶ 4(b)(iv). See ESPN, Inc. v. Danny Ballerini, FA 95410 (Nat. Arb. Forum Sept. 15, 2000) (finding bad faith where Respondent linked the domain name to another website <iwin.com>, presumably, Respondent received a portion of the advertising revenue from site by directing Internet traffic to the site, thus using a domain name to attract Internet users, for commercial gain); AltaVista v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where Respondent linked the domain name to a website that offers a number of web services).

For these reasons, the Panel finds that Complainant has met its burden of showing that Respondent registered and attempted to use the domain name at issue in bad faith. Policy 4(b)(iv).

Having established all three elements required by the ICANN Policy Rule 4(a), it is the decision of the Panel that the requested relief should be granted.

Accordingly, for all of the foregoing reasons, it is Ordered that the domain name, "BBVA-BANCOMERWAP.COM" be transferred from Respondent to Complainant.

Carolyn Marks Johnson

Retired Judge

Arbitrator

Dated: March 2, 2001