DECISION

Pilaros International Trading Inc. v. Peter Evangelou

Claim Number: FA0403000249356

PARTIES

Complainant is Pilaros International Trading Inc. (“Complainant”), represented by Tetiana M. Gerych, of Phillips, Friedman, Kotler, 1010 de la Gauchetiere West, Suite 900, Montreal, Quebec, Canada H3B 3P8.  Respondent is Peter Evangelou (“Respondent”), 145 Langley, Toronto, Ontario, Canada M4K 1B6.

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <pilaros.com>, registered with Enom, Inc.

PANEL

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

Terry F. Peppard, as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on March 25, 2004; the Forum received a hard copy of the Complaint on March 29, 2004.

On March 25, 2004, Enom, Inc. confirmed by e-mail to the Forum that the domain name <pilaros.com> is registered with Enom, Inc. and that the Respondent is the current registrant of the name.  Enom, Inc. has verified that Respondent is bound by the Enom, Inc. 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 April 1, 2004, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 21, 2004 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@pilaros.com by e-mail.

A Response was received and determined to be complete on April 26, 2004.

An additional submission of Complainant was filed by telefax on April 30, 2004, and an additional submission of Respondent was filed on the same date.  Both additional submissions were filed untimely.  Because the delays in filing supplemental submissions were mutual and not material, those submissions have nonetheless been considered.

On May 6, 2004, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as Panelist.

RELIEF SOUGHT

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

PARTIES’ CONTENTIONS

A.            Complainant

Complainant, based in Quebec, Canada, contends that its complaint is based upon the trademark “Pilaros,” of which it has been the registered owner since September of 1997.   Complainant asserts that the mark was registered with the pertinent Canadian authorities in association with wares and services related to various food products and the importation and distribution thereof, and Complainant has never licensed that mark to any other party.  Complainant further alleges that the disputed domain name is identical to its trademark, and that, from mid-1998 to mid-2001, it owned the registered domain name <pilaros.com>.  Complainant concedes that, through inadvertence, it failed to renew that registration in the ordinary course and as a consequence it expired on June 15, 2001.  Complainant further alleges that one of its business competitors, with whom Respondent is affiliated, procured the registration of the disputed domain name soon after Complainant’s registration had expired.  Complainant next contends that when Complainant inquired of that business competitor concerning this development, the company promptly transferred the same domain name registration to Respondent.  Finally, Complainant asserts that the content of the website now operated by Respondent at <pilaros.com> consists entirely of photographs of art objects and that the site is non-interactive, implying that it cannot be and is not used for conducting legitimate business.

B.            Respondent

Respondent, a resident of Ontario, Canada, contends that he is of Greek ancestry and that “Pilaros” was his childhood nickname.  He further contends that he does business under that name.  Respondent also alleges that he has invested time in promoting his business under that name, and he asserts that he acquired the disputed domain name at a time when it was available for registration, that he acquired it lawfully and fairly, that he has paid all fees required to obtain and maintain it, and that he was unaware of the existence of Complainant when he acquired it. 

C.            Additional Submissions

In its additional submission, Complainant submits that Respondent has contacted customers of Complainant to offer them products competitive with those of Complainant.  Complainant further submits that “Pilaros” is not a nickname used by persons of Greek descent.  Moreover, Complainant submits that only Complainant has registered a business with Canadian authorities under the name “Pilaros.”  Finally, Complainant alleges that Respondent has not credibly demonstrated that he does business under the name “Pilaros” or <pilaros.com>.

In his additional submission, Respondent submits that he is not the Peter Evangelou whom Complainant’s evidence connects with its business competitor, and from which competitor Complainant alleges that Respondent obtained the disputed domain name.  Respondent also submits, as proof that he does business under the name “Pilaros,” a copy of a purchase order dating from March of 2004.  Finally, Respondent alleges that he is entitled to operate his website as he chooses, and that, although it is not interactive, he uses it as a follow-up tool after making cold-calls to prospective customers. 

FINDINGS

            Identical or Confusingly Similar

As to paragraph 4(a)(i) of the Policy, the contested domain name is identical to a trademark in which Complainant has rights.  This element of the Policy must therefore be found in favor of Complainant.

Rights or Legitimate Interests

As to paragraph 4(a)(ii) of the Policy, Respondent has not demonstrated that he uses or has used the contested domain name for non-commercial purposes.  His assertion that “Pilaros” was his childhood nickname is not supported by any proof.  And, as to commercial use, Respondent has not registered the business name “Pilaros” with the pertinent authorities, nor has he obtained from Complainant a license to use that mark. Moreover, Respondent has shown only a single purported business transaction from October 2001 through the date of his submissions.  That single purported transaction is dated only a few days before the filing of the Complaint in this proceeding, and is, therefore, not credible.  Finally, Respondent’s website at <pilaros.com> is entirely non-interactive.  This element of the Policy must also be found in favor of Complainant.

Bad Faith Registration and Use

As to paragraph 4(a)(iii) of the Policy, Respondent’s unproven assertion that his childhood nickname is “Pilaros,” together with the evidence of his suspect claim to a single commercial transaction immediately prior to the filing of the Complaint in this proceeding, and the fact of his non-interactive website and of his acquisition of the domain name from a business competitor of Complainant soon after Complainant’s inquiry to that competitor, compel the conclusion that Respondent has registered and is using the contested domain name in bad faith.   This final element of the Policy must, therefore, be found in favor of Complainant.

 

DISCUSSION

Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”

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 disputed domain name <pilaros.com> is identical to Complainant’s trademark “Pilaros” in that it incorporates the mark in its entirety.  Oki Data Americas, Inc. v. ASD Inc., D2001-0903 (WIPO Nov. 6, 2001).  Accordingly, I find that the domain name registered by Respondent is identical to a trademark in which Complainant has rights.

Rights or Legitimate Interests

A bald assertion to the effect that the disputed domain name was Respondent’s childhood nickname, without proof, fails to establish in him non-commercial rights to or interests in that name.  Red Bull GmbH v. Harold Gutch, D2000-0766 (WIPO Sept. 22, 2000).

That Respondent has never registered with the pertinent authorities a company operating under the name “Pilaros” is evidence that he has no legitimate commercial right to or interest in that name.  Societe Civile du Forum des Halles de Paris v. French Xpressions, Inc., D2001-0821 (WIPO Aug. 29, 2001).  So also is evidence that Complainant has never licensed Respondent to use its “Pilaros” mark.  Cosmos European Travels AG v. Eurotech Data Systems Hellos, Ltd., D2001-0941 (WIPO Oct. 8, 2001).

Respondent’s creation of an entirely non-interactive website is the functional equivalent of posting an “under construction” notice on a site not yet in use, which tends to negate his claim to legitimate commercial use of the associated domain name.  Lusomundo Audiovisuais, S.A. v. Inmosoria, S.A., D2000-0523 (WIPO Aug. 3, 2000).

Finally, particularly in light of the fact that Respondent acquired the contested domain name more than two years before the commencement of this proceeding, his submission of a copy of a single purported purchase order, dated only days before the filing of the Complaint in this proceeding, is a transparently incredible attempt to show minimal commercial use of the domain name before Respondent should have had knowledge of the existence of Complainant.  The submission of such incredible evidence belies Respondent’s claim to legitimate rights to or interests in the disputed domain name.  Advanced Internet Technologies, Inc. v. AIT, Inc., D2000-0597 (WIPO Feb. 21, 2001).

For all of these reasons, I find that Respondent has no legitimate rights to or interests in respect of the disputed domain name.

Registration and Use in Bad Faith

The Panel is entitled to look at the totality of the evidence in assessing whether, in all the circumstances of the case, the domain name has been registered, and is being used, in bad faith.  Argyle Diamond Sales Limited v. Van Daaz, D2001-1323 (WIPO Dec. 31, 2001).

Analysis of this issue begins with the fact that, by virtue of Complainant’s public registration of the mark “Pilaros” from 1997 on and by virtue of Complainant’s active commercial use of the “pilaros.com” domain name from 1999 to 2001, Respondent had constructive knowledge of Complainant’s prior right to and interest in the contested domain name when he acquired it.  Such knowledge is evidence of bad faith. DFO, Inc. v. Christian Williams, D2000-0181 (WIPO May 17, 2000);  TPI Holdings Inc. v. JB Designs, D 2000-0216 (WIPO May 22, 2000);  Ibersecurities, Agencia de Valores y Bolsa, S.A. v. Iberica Segurança, Eloy Lacasta, D2000-0738 (WIPO Jan. 23, 2001).

Also persuasive on this issue are Respondent’s entire course of conduct, both preceding and in connection with this proceeding, including: (i) his failure to offer any proof in support of his contention that “Pilaros” is his childhood nickname, (ii) his acquisition of the contested domain name from a competitor of Complainant, (iii) his creation of a non-interactive website resolving from the disputed domain name, and (iv) his submission of incredible information purporting to show but a single commercial transaction connected with that domain name in the more than two years prior to this proceeding.  Such a course of conduct is indicative of bad faith in the registration and use of the disputed domain name.  E.g. Ticketmaster Corporation v. Spider Web Design, Inc., D2000-1551 (WIPO Feb. 26, 2001).

Taken as a whole, the evidence is compelling that Respondent has registered and is using the contested domain name in bad faith, and I so find.

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <pilaros.com> domain name be TRANSFERRED from Respondent to Complainant.

Terry F. Peppard, Panelist
Dated:  May 17, 2004

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