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Timelinx S.A v. ISEAB [2004] GENDND 1123 (17 August 2004)

1. The Parties

The Complainant is Timelinx S.A, Malaga, of Spain, represented by Keith Barker, Spain.

The Respondent is ISEAB, Varberg Halland, of Sweden.

2. The Domain Name and Registrar

The disputed domain name <timelinx.info> is registered with Network Solutions, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2004. On June 14, 2004, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name at issue. On June 17, 2004, Network Solutions, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on June 23, 2004. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 6, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was July 26, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 27, 2004.

The Center appointed Martine Dehaut as the sole panelist in this matter on August 3, 2004. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

4.1) The Complainant, Timelinx, S.A., a company incorporated under the laws of Spain, is the owner of the following Spanish trademark registrations, full copies of which were duly annexed to the complaint:

- Spanish trademark TIMELINX.COM (and device), registered on June 5, 2001, under Nº 2 360 243, and designating retail services through a worldwide computer network;

- Spanish trademark TIMELINX.COM (and device), registered on June 5, 2001, under Nº 2 360 244, and designating entertainment services.

4.2) The information made available by the Registrar of the domain name at issue shows that it has been registered by the Swedish company ISEAB. The administrative and billing contact of ISEAB is, according to the Registrar, Mr. Steven Harris.

4.3) On the single page available at the domain name <timelinx.info> are reproduced:

- The trademark TIMELINX.COM of the Complainant, with identical figurative elements;

- The following text, in English: “Class Action Lawsuit - this site is to inform you of a forthcoming class action lawsuit against Mr. Garry Leigh and Mr. Keith Barker who are directors and shadow directors of: Timelinx. SA (…) If you have purchased a product or service containing the timelinx name or logo and are unsatisfied. Or indeed feel you were misled or fraudulently sold. Do not despair - you are not alone. Don’t delay - complain today!”.

4.4) The domain name at issue has already been the subject of an Administrative Panel Decision, issued on December 12, 2002, Mr. Garry Peter Leigh v. Mr. Steven Harris, WIPO Case No. D2002-0940. The Complainant in this dispute was the administrator of Timelinx S.A., the Respondent being then Mr. Steven Harris, namely the administrative and billing contact of the Respondent in the present matter, the Swedish company ISEAB.

The single panelist in this matter, Mr. Torsten Bettinger, ordered the cancellation of the domain name <timelinx.info>. Relevant extracts of this decision are reproduced hereinafter:

“The panel finds that neither the device of the trademark, which cannot be reproduced in a domain name, nor the generic Top-Level-Domain “.info” have distinguishing capacity (…). The Panel notes that the Respondent operates a website that ostensibly serves the purpose of criticizing the Complainant’s business (…).

The panel notes that the Respondent uses a domain name that, apart from the top-level-domain suffix and the device of the Complainant’s trademark, is identical to the trademark registered by the Complainant and that the Respondent uses the Complainant’s trademark on his website without the complainant’s authorization. The Panel takes the view that under these circumstances the Complainant has established a prima facie case that the Respondent has no rights and legitimate interest in the domain name (…). The Panel finds there are no exceptional circumstances for the failure of the Respondent to submit a Response and draws from this failure the inference that the Respondent does not deny the fact that the domain name was chosen to denigrate the Complainant’s business. Accordingly it is the Panel’s view that Respondent has no rights or legitimate interests in the domain name timelinx.info (…).

The complainant has asserted that the domain name was primarily chosen for the purpose of denigrating and disrupting his business (…). The Panel therefore concludes that Respondent registered and is using the domain name <timelinx.info> in bad faith”.

5. Parties’ Contentions

A. Complainant

The Complainant requests the cancellation of the domain name <timelinx.info>. Its arguments may be summarized as follows:

The domain name at issue is nearly identical to the trademark TIMELINX.COM, registered in its name.

The Respondent has no intention to sell goods or services through the domain name at issue and has therefore no legitimate interest in it. The domain name has been registered and is being used to denigrate the Complainant.

The Respondent has simply re-purchased the domain name, and is using it, newly, to the detriment of the repute of the Complainant. As was decided in the identical WIPO Case No. D2002-0940, the domain name was registered and is still being used in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

The Complainant has drawn the attention of the Panel to the existence of a prior Administrative Panel Decision dated December 12, 2002, issued in WIPO Case No. D2002-0940, involving the same parties and the same domain name.

While it is unquestionable that the domain name and the Complainant involved in WIPO Case Nos. D2002-0940 and D2004-0438 are identical (the domain name is <timelinx.info>, the Complainant being Spanish Company Timelinx S.A. or Mr. Garry Peter Leigh acting on behalf of Timelinx S.A.-), the Panel must verify whether the Respondents in both cases should be held identical.

The Panel notes that the current registered owner of the domain name <timelinx.info> is the Swedish company ISEAB while, in the previous WIPO Case No. D2002-0940, the registered owner and Respondent was a particular, Mr. Steven Harris from Sweden. However, and failing any contrary indication from the Respondent, the Panel is convinced that this difference of ownership is irrelevant. This finding of the Panel is based on the following elements:

- From the information available on the file, as provided by the Registrar of the contested domain name, it appears that Mr. Steven Harris, the Respondent in the previous WIPO Case No. D2002-0940, is the administrative and billing contact of ISEAB, and

- The information currently available on the domain name <timelinx.com> is substantially the same as the one displayed when it was registered by Mr. Steven Harris, as described in the previous Administrative Panel Decision. This information consists, in both cases, of the reproduction of the Complainant's trademark TIMELINX.COM (and logo), and a message informing visitors of the Website of the existence of legal proceedings started against the representatives of the Complainant.

The refilling of an identical domain name, by the same Respondent (or closely related Respondent), further to the cancellation ordered in a previous Administrative Panel Decision, should undoubtedly be taken into account by the Panel in this new proceeding, in particular in the assessment of the existence of bad faith from the Respondent.

In order to succeed, and in accordance with Paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements are met:

(i) The contested domain name is identical or confusingly similar to a trademark in which the Complainant has rights;

(ii) The Respondent has no rights or legitimate interests in respect of the contested domain name;

(iii) The contested domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The contested domain name <timelinx.info> is obviously very similar to the trademark TIMELINX.COM in which the Complainant has rights. Indeed domain names are registered and used without figurative elements, making clearly superfluous any comparison with the figurative elements associated with the trademarks of the Complainant. Besides, the generic top level domain name “.com” of the Complainant’s trademarks cannot be regarded as distinctive. In this respect see WIPO Case No. D2000-0834, CBS Broadcasting Inc. v. WorldWideWeb Inc.

B. Rights or Legitimate Interests

As detailed in the Policy, the following circumstances may demonstrate the Respondent’s rights or legitimate interest in the domain name. These are:

(i) Before any notice to the Respondent of the dispute, the Respondent’s use, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with the bone fide offering of goods or services; or

(ii) The Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or

(iii) The Respondent is making a legitimate non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The Panel concurs with the findings of the learned panelist in WIPO Case No. D2002-0940, Mr. Torsten Bettinger, concerning the lack of rights or legitimate interests of the Respondent.

Once the Complainant has established prima facie evidence of lack of rights or legitimate interests of the Respondent, by stating that use of its trademark on the Website of the Respondent was made without its consent, the onus is on the Respondent to evidence that any of the above-mentioned circumstances, or any other relevant circumstance, apply. The Panel notes that the Respondent has failed to reply to the Complaint

Besides, as evoked above, the information currently available on the domain name is substantially identical with the one displayed when the decision in WIPO Case No. D2002-0940, involving the same parties and the same domain name, was issued. The domain name at issue is still used in order to denigrate the Complainant’s business. Then the Respondent is tarnishing the Complainant’s trademark without making a legitimate non-commercial of fair use of the domain name (see (iii) above).

The Panel draws from the failure of the Respondent to respond to the Complaint, and from the absence of new elements in the use made of the Website “www.timelinx.info”, the conclusion that the Respondent has no right or legitimate interest in the domain name at issue.

C. Registered and Used in Bad Faith

Pursuant to Rule 4(b)(iii) of the Policy, registration of a domain name primarily for the purpose of disrupting the business of a competitor may evidence the registration and use of a domain name in bad faith.

The domain name is used solely with the purpose of denigrating the Complainant’s business, as visitors are invited to join a class-action lawsuit against the Complainant. Moreover, the trademark of the Complainant is reproduced identically without its consent.

Besides, the Respondent registered the domain name <timelinx.info> in spite of a previous decision against it ordering the cancellation of the very same domain name. This circumstance evidences the bad faith of the Respondent. A similar case involving refilling of an identical domain name by the same Respondent, and constituting bad faith, can be found in Société des Bains de Mer et du Cercle des Etrangers v. Internet Billions Domains Inc, WIPO Case No. D2003-0985.

The Panel notes, in addition, that the Respondent has failed to respond to the Complaint and to evidence why the refilling of the domain name <timelinx.info> would not have been made in bad faith.

Therefore the Panel concludes that the domain name was registered and is being used in bad faith by the Respondent.

In the absence of new and relevant circumstances, the Respondent should not expect to obtain a favourable decision from a different Panelist.

7. Decision

The panel is bound by the express request of the Complainant which, in the present proceedings, has requested the cancellation of the contested domain name.

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <timelinx.info> be cancelled.

Martine Dehaut
Sole Panelist

Dated: August 17, 2004