START-UP TRADEMARK OPPOSITION POLICY

DECISION

Brantano Nv v. Amiso SA

Claim Number: FA0112000102812

PARTIES

The Complainant is Brantano Nv, Erembodegem, BELGIUM (“Complainant”).  The Respondent is Axel Mees Amiso Sa, Alsemberg, BELGIUM (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <brantano.biz>, registered with Namebay SAM.

PANEL

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

Sandra Franklin as Panelist.

PROCEDURAL HISTORY

Complainant has standing to file a Start-up Trademark Opposition Policy (“STOP”) Complaint, as it timely filed the required Intellectual Property (IP) Claim Form with the Registry Operator, NeuLevel.  As an IP Claimant, Complainant timely noted its intent to file a STOP Complaint against Respondent with the Registry Operator, NeuLevel and with the National Arbitration Forum (the “Forum”).

Complainant submitted a Complaint to the Forum electronically on December 11, 2001; the Forum received a hard copy of the Complaint on January 7, 2002.

On January 14, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of February 4, 2002 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with paragraph 2(a) of the Rules for the Start-up Trademark Opposition Policy (the “STOP Rules”).

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 14, 2002, pursuant to STOP Rule 6(b), the Forum appointed Sandra Franklin as the single 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 STOP Rules.  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the STOP Policy, STOP Rules, the Forum’s STOP Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Transfer of the domain name from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant

The <brantano.biz>  domain name is identical to Complainant’s BRANTANO trademark.

Respondent does not have rights to or legitimate interests in the  <brantano.biz> domain name.

Respondent regsitered <brantano.biz> in bad faith.

B. Respondent

Respondent failed to submit a Response.

FINDINGS

Complainant has provided evidence that it has registered the BRANTANO trademark in several countries, including a registration of the mark with the European Union, Spain, and the Republic of South Africa (Reg. No. 97/14599).

Respondent registered the disputed domain name on November 19, 2001.  Respondent has not answered Complainant’s emails or telephone calls, and currently lives in Belgium, the same country as Complainant.

 

DISCUSSION

Paragraph 15(a) of the STOP 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 STOP Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the STOP Rules.

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

(1) the domain name is identical to a trademark or service mark in which the Complainant has rights; and

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

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

Due to the common authority of the ICANN policy governing both the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and these STOP proceedings, the Panel will exercise its discretion to rely on relevant UDRP precedent where applicable.

Under the STOP proceedings, a STOP Complaint may only be filed when the domain name in dispute is identical to a trademark or service mark for which a Complainant has registered an Intellectual Property (IP) claim form.  Therefore, every STOP proceeding necessarily involves a disputed domain name that is identical to a trademark or service mark in which a Complainant asserts rights.  The existence of the “.biz” generic top-level domain (gTLD) in the disputed domain name is not a factor for purposes of determining that a disputed domain name is not identical to the mark in which the Complainant asserts rights.

Complainant’s Rights in the Mark

Complainant has established legal rights in the BRANTANO trademark due to its registration of the mark in several countries, including in the country where Respondent resides.  

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

Rights or Legitimate Interests

Respondent may be determined not to have any rights to or legitimate interests in the disputed domain name because Respondent has not furnished a Response to this claim.  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).

There is no evidence, nor has Respondent come forward to provide any, to show that it has a service or a trademark reflecting the BRANTANO name or the identical domain name.  Therefore, Respondent has not demonstrated any rights or legitimate interests pursuant to STOP Policy ¶ 4 (c)(i).  See Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc. & D3M Domain Sales, AF-0336 (eResolution Sept. 23, 2000) (finding no rights or legitimate interests under the UDRP where no such right or interest is immediately apparent to the Panel and Respondent has not come forward to suggest any right or interest it may possess).

Respondent, known as Amiso, has not provided any evidence that it is commonly known by the BRANTANO name.  As a result, Respondent can be presumed not to have rights to or legitimate interests in the disputed domain name pursuant to STOP Policy ¶ 4 (c)(iii).  See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in domain name when Respondent is not known by the mark).

Respondent has not provided any evidence of preparations for a legitimate business use of the disputed domain name which suggest it does not have rights or legitimate interests in the disputed domain pursuant to STOP Policy ¶ 4 (c)(ii).  See Melbourne IT Ltd. v. Stafford, D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in the domain name where there is no proof that the Respondent made preparations to use the domain name or one like it in connection with a bona fide offering of goods and services before notice of the domain name dispute, the domain name did not resolve to a website, and the Respondent is not commonly known by the domain name).

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

Registration or Use in Bad Faith

Because Complainant has many registrations of the BRANTANO mark and Respondent is domiciled in the same country as Complainant and even lives in the city where Complainant’s CEO used to live, Respondent is presumed to be on notice of Complainant’s rights.  This knowledge suggests that Respondent registered the domain name in bad faith.  See Samsonite Corp. v. Colony Holding, FA 94313 (Nat. Arb. Forum Apr. 17, 2000) (finding that evidence of bad faith includes actual or constructive knowledge of a commonly known mark at the time of registration).  Moreover, Respondent’s presumed knowledge of Complainant’s mark suggests Respondent may have registered the disputed domain with the intent to prevent Complainant from reflecting its mark in a corresponding domain name.  See Peachtree Software v. Scarponi, FA 102781 (Nat. Arb. Forum Jan. 23, 2002) (finding bad faith under STOP Policy ¶ 4(b)(ii), noting that it was reasonable to conclude Respondent registered <peachtree.biz> with the intent to prevent Complainant from reflecting its PEACHTREE mark in a corresponding domain name, given Respondent's knowledge of Complainant's mark and Respondent's lack of rights or interests in the mark).

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

DECISION

Having established all three elements required under the Start-Up Trademark Opposition Policy, the Panel concludes that relief shall be hereby granted.

Accordingly, it is Ordered that the <brantano.biz> domain name be transferred from Respondent to Complainant  and subsequent challenges under the STOP Policy against the domain name shall not be permitted.

Sandra Franklin,  Panelist

Dated: February 25, 2002

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