DECISION

Hidrinox S.A. and Isely S.A. v. Leo Pardo

Claim Number: FA0201000104196

PARTIES

Complainants are Hidrinox S.A. and Isely S.A., Buenos Aires, Argentina (“Complainants”) represented by Hector Majdalani.  Respondent is Leo Pardo, Buenos Aires, Argentina (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <hidrinox.com>, registered with DomainDiscover.

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.

Jaime Delgado as Panelist.

PROCEDURAL HISTORY

Complainants submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on January 31, 2002; the Forum received a hard copy of the Complaint on February 11, 2002.  The Complaint was submitted in Spanish, the official language of Respondent’s country of residence.

On February 4, 2002, DomainDiscover confirmed by e-mail to the Forum that the domain name <hidrinox.com> is registered with DomainDiscover and that Respondent is the current registrant of the name.  DomainDiscover has verified that Respondent is bound by the DomainDiscover 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 February 13, 2002, an English and Spanish Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of March 5, 2002 by which Respondent could file a Response to the Complaint, were 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@hidrinox.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 March 11, 2002 pursuant to Complainants’ request to have the dispute decided by a single-member Panel, the Forum appointed Jaime Delgado 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

Complainants request that the domain name be transferred from Respondent to Complainants.

PARTIES’ CONTENTIONS

A. Complainants

The disputed domain name <hidrinox.com> is identical to a registered mark in which Complainants hold rights.

Respondent has no rights or legitimate interests in respect of the disputed domain name.

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

B. Respondent

Respondent did not submit a Response in this proceeding.

FINDINGS

Complainants are engaged in the business of designing and producing a unique stainless steel tubing product, involving a patented “high hydraulic compression” system, under the HIDRINOX mark.

Complainants have maintained a website to promote their products, services, and marks at <hidrinox.com.ar>.  They hold registered marks in HIDRINOX in international classes 6 and 17 in Argentina (Registration Nos. 1,892,798 & 1,892,799), Uruguay, Paraguay, Peru, Mexico, Chile, Colombia, Bolivia, and Brasil.

Respondent registered the disputed domain name on March 7, 2000, and has used the domain name to promote products of firms in competition with Complainants, and to offer the domain name for sale.  After being contacted by Complainants, Respondent offered to sell the disputed domain name for $20,075 USD.

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 Complainants’ undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that the Complainants 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 Complainants have 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 and is being used in bad faith.

Identical and/or Confusingly Similar

Complainants have established their rights in the HIDRINOX mark through registration with the Argentinean trademark registrar and continuous subsequent use.

The disputed domain name incorporates Complainants’ mark in its entirety and merely adds the generic top level domain (gTLD) “.com.”  The use of a gTLD is insignificant when determining whether a domain name and mark are identical since the gTLD is a required element in domain names.  See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the gTLD “.com” after the name POMELLATO is not relevant); see also Visit Am., Inc. v. Visit Am., FA 95093 (Nat. Arb. Forum Aug. 14, 2000) (finding that the “.com” is part of the Internet address and does not add source identity significance).  The disputed domain name is, thus, identical to Complainants’ mark.

Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Complainants have demonstrated their rights to and interests in the HIDRINOX mark.  Because Respondent has not submitted a Response in this matter, the Panel may presume it holds no such rights or interests.  See Talk City, Inc. v. Robertson, D2000-0009, (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”).

Respondent’s use of a domain name, identical to Complainants’ mark, to direct Internet users to a competing website cannot be deemed a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See North Coast Med., Inc. v. Allegro Med., FA 95541 (Nat. Arb. Forum Oct. 2, 2000) (finding no bona fide use where Respondent used the domain name to divert Internet users to its competing website); see also Chip Merchant, Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were confusingly similar to Complainant’s mark and that Respondent’s use of the domain names to sell competing goods was illegitimate and not a bona fide offering of goods); see also Chanel, Inc. v. Cologne Zone, D2000-1809 (WIPO Feb. 22, 2001) (finding that the use of an infringing mark to sell complainant’s perfume, as well as other brands of perfume, was not a bona fide use).

Further, there is no evidence Respondent is known by “hidrinox” or “hidrinox.com” pursuant to Policy ¶ 4(c)(ii); Respondent is only known to this Panel as Leo Pardo.  See Gallup Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that Respondent does not have rights in a domain name when Respondent is not known by the mark); see also 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 where no such right or interest was immediately apparent to the Panel and Respondent did not come forward to suggest any right or interest it may have possessed).

The Panel thus finds that Respondent has no rights or legitimate interests in respect of the disputed domain name and that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent registered and used the disputed domain name for the purpose of disrupting the business of Complainants by directing Internet users who intended to visit Complainants’ website to competing websites.  Such behavior demonstrates bad faith under Policy ¶¶ 4(b)(iii) & (iv).  See EBAY, Inc. v. MEOdesigns & Matt Oettinger, D2000-1368 (Dec. 15, 2000) (finding that the Respondent registered and used the domain name <eebay.com> in bad faith where Respondent used the domain name to promote competing auction sites); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that Respondent has diverted business from the Complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the Respondent registered the domain name <bigtex.net> to infringe on the Complainant’s goodwill and attract Internet users to the Respondent’s website).

Furthermore, Respondent’s efforts to sell the disputed domain name for an amount of money greatly in excess of its out-of-pocket expenses demonstrates bad faith within the meaning of Policy ¶ 4(b)(i).  See Matmut v. Tweed, D2000-1183 (WIPO Nov. 27, 2000) (finding bad faith under Policy paragraph 4(b)(i) where Respondent stated in communication with Complainant, “if you are interested in buying this domain name, we would be ready to sell it for $10,000”); see also Moynahan v. Fantastic Sites, Inc., D2000-1083 (WIPO Oct. 22, 2000) (finding bad faith where the Respondent offered to sell the Domain Name to the Complainant for $10,000 when Respondent was contacted by Complainant).

Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

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

Accordingly, it is Ordered that the <hidrinox.com> domain name be transferred from Respondent to Hidrinox SA

_

Jaime Delgado, Panelist

Dated: March 15, 2002

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