Decisión del Panel Administrativo nº D2017-0001 of WIPO Arbitration and Mediation Center, March 28, 2017 (case Ebel International Limited v. Alan Brashear)
| Resolution Date | March 28, 2017 |
| Issuing Organization | WIPO Arbitration and Mediation Center |
| Decision | Transfer |
| Dominio | Generic Domains |
The Complainant is Ebel International Limited of Hamilton, Bermuda, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland, represented by Pacón - Schiantarelli (P&S), Germany.
The Respondent is Alan Brashear of Belle Plaine, Kansas, United States of America, represented by Estudio Jurídico “Abril” Abogados Asociados, Peru.
The disputed domain names [cyzoneperu.com] and [esikaperu.com] are registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 3, 2017. On January 3, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On January 3, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center sent an email communication in English and Spanish to the parties on January 10, 2017 regarding the language of the proceeding, as the Complaint has been submitted in Spanish and the language of the registration agreement for the disputed domain names is English. The Complainant submitted a request for Spanish to be the language of the proceeding on January 11, 2017. The Respondent submitted a request for English to be the language of the proceeding on January 13, 18, and 27, 2017 and February 5, 2017.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 and 4, the Center formally notified the Respondent in English and in Spanish of the Complaint, and the proceedings commenced on January 18, 2017. In accordance with the Rules, paragraph 5, the due date for Response was February 7, 2017. The Center notified the Parties on February 8, 2017 that it will proceed to Panel Appointment process.
The Center appointed Kiyoshi Tsuru as the sole panelist in this matter on February 15, 2017. 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.
On February 17, 2017, the Panel issued Procedural Order No.1, stating that the language of the registration agreement related to the disputed domain names was English. The Panel further developed that, pursuant to paragraph 11 of the Rules, unless otherwise agreed by the parties, or specified contrarily in the registration agreement, the language of the proceeding shall be the language of the registration agreement, subject to the authority of the Panel to determine otherwise
The Panel noted that the Complainant had requested that the language of the proceeding be Spanish, and that the Respondent had expressed his opposition to the Complainant’s request to conduct this proceeding in Spanish.
Under the circumstances of this case, and in accordance with paragraph 11 of the Rules, the Panel determined that the language for this proceeding would be English. Consequently, the Panel required the Complainant to submit a Complaint in English. The deadline to file the Complaint in English was February 23, 2017. The Panel granted the Respondent a term of twenty (20) calendar days following the date of notification of the English Complaint in English to file a Response.
On February 23, 2017, the Complainant submitted the translated version of its Complaint. Following Procedural Order No. 1, the Center notified the English version of the Complaint to the Respondent, informing the Parties that the Respondent could file a Response by March 16, 2017. The Respondent did not file a timely Response.
The Respondent sent email communications to the Center on March 23, 2017 and March 24, 2017 submitting its Response and explanation of the Respondent’s late submission.
On March 24, 2017, the Complainant sent an email communication to the Center.
The original deadline for sending the Panel Decision to the Center was March 23, 2017. Considering that the parties sent communications to the Center on March 23 and 24, 2017, the Center extended the deadline granted to the Panel to issue a Decision to April 4, 2017.
The Complainant is Ebel International Limited, a company based in Bermuda. The Complainant’s primary occupation is the direct sale of beauty products, for body and skin care, and cosmetics. The Complainant’s parent office is located in Peru.
The Complainant owns several trademark registrations for CY°ZONE and ESIKA, among which, are the following:
| Trademark | Registration Number | Registration Date | Jurisdiction |
| CY°ZONE | 83779 | October 11, 2002 | Peru |
| CY°ZONE | 160193 | January 8, 2010 | Peru |
| CY°ZONE | 83780 | October 11, 2002 | Peru |
| ESIKA | 158231 | October 30, 2009 | Peru |
| ESIKA | 113282 | March 9, 2006 | Peru |
| ESIKA | 158230 | October 30, 2009 | Peru |
The Complainant owns the following domain names:
| Domain name | Registration Date |
| [cyzone.com] | April 26, 2004 |
| [esika.com] | August 24, 1999 |
The Respondent registered the disputed domain name [cyzoneperu.com] on August 22, 2014 and the disputed domain name [esikaperu.com] on August 21, 2014. According to the evidence provided by the Complainant the disputed domain names resolved to websites containing catalogs of the Complainant’s products. At the time of issuing the decision, the disputed domain names resolved to a website advertising services such as “web design”, “repair & updating”, “add-on features”, “hosting”, “translations” and “domain registration”.
The Complainant argues the following:
I) The disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights
That the Complainant owns trademark registrations for CY°ZONE and ESIKA in Peru and other Latin American countries since before the date of registration of the disputed domain names.
That the Complainant owns the domain name registrations for [cyzone.com] and [esika.com].
That the Peruvian Trademark Office has recognized the distinctive character of the trademark CY°ZONE. That said trademark office has stated that a family of trademarks has been constituted in relation to the trademark CY°ZONE.
That...
To continue reading
Request your trial