{
    "case_number": "CAC-UDRP-102486",
    "time_of_filling": "2019-06-06 09:00:47",
    "domain_names": [
        "barry-caillebaut.com"
    ],
    "case_administrator": "  Iveta Špiclová   (Czech Arbitration Court) (Case admin)",
    "complainant": [
        "Barry Callebaut AG",
        "Barry Callebaut Belgium NV"
    ],
    "complainant_representative": "Adlex Solicitors",
    "respondent": [
        "Jaime10907 88th Stree Adam"
    ],
    "respondent_representative": null,
    "factual_background": "FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:\r\n\r\nB.\tIdentical or Confusingly Similar\r\n\r\n(i.) Rights\r\n\r\n19.\tThe Complainant relies on its registered trade marks referred to above.\r\n \r\n20.\tThe Complainant also relies on common law rights.  By virtue of its extensive trading and marketing activities outlined above, the Complainant has acquired substantial reputation and goodwill in the name “Barry Callebaut” such that it is recognised by the public as distinctive of the Complainant’s business.  \r\n\r\n(ii.) Identical or Confusing Similarity\r\n\r\n21.\tThe Domain Name differs only by the insertion of the letter “i” before “ll” in the word “callebaut”, thus creating a misspelling of the Complainant’s trade mark “Barry Callebaut”.  This has the obvious potential to cause confusion with the Complainant’s trade mark both visually and phonetically. The Complainant’s trade mark remains readily identifiable within the Domain Name.\r\n\r\nC.\tRights or legitimate interests\r\n\r\n22.\tSection 2.1 of WIPO Overview 3.0 explains the consensus view that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element.\r\n\r\n23.\tDealing with each of the subparagraphs of paragraph 4(c) of the ICANN policy in turn:\r\n\r\n(i.) Bona fide use (4(c)(i))\r\n\r\n24.\tThe Complainant has no association with the Respondent and has never authorised or licensed the Respondent to use its trade marks. \r\n\r\n25.\tThere is no evidence that the Respondent has ever used the Domain Name at all.\r\n\r\n (ii.) Commonly known by the domain name (4(c)(ii))\r\n\r\n26.\tThere is no evidence that the Respondent has been commonly known by the names comprised in the Domain Name. \r\n\r\n(iii.) Legitimate noncommercial or fair use of the domain name (4(c)(iii))\r\n\r\n27.\tAgain, there is no evidence that the Respondent has ever used the Domain Name, let alone in a noncommercial or fair manner.\r\n\r\nD.\tRegistered and used in bad faith. \r\n\r\n28.\tParagraph 3.3 of WIPO Overview 3.0 explains that, from the inception of the UDRP, panels have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panels will look at the totality of the circumstances in each case, factors that have been considered relevant include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.\r\n\r\n29.\tIn this case the Complainant relies on the following factors as evidencing bad faith by passive holding. \r\na.\tThe Complainant has a well-known and highly distinctive trade mark. It is inconceivable that the Respondent registered the Domain independently of that trade mark; the Domain is explicable only as a deliberate misspelling of the Complainant’s trade mark. \r\nb.\tIt is impossible to conceive of a good faith use of the Domain.\r\n\r\n30.\tThe Complainant suspects that the Domain Name has been registered for use as part of a fraudulent phishing exercise. The Complainant and its customers \/ suppliers have been subject to such attempts before and indeed the Complainant has won a number of previous domain name cases relating to such fraudulent typo-squatting activities:  \r\n              https:\/\/www.wipo.int\/amc\/en\/domains\/search\/text.jsp?case=D2016-1332\r\n              https:\/\/www.wipo.int\/amc\/en\/domains\/search\/text.jsp?case=D2016-1095\r\n              https:\/\/www.wipo.int\/amc\/en\/domains\/search\/text.jsp?case=D2015-2105\r\n              https:\/\/www.wipo.int\/amc\/en\/domains\/search\/text.jsp?case=D2015-0819 (6 domains)\r\n              https:\/\/www.wipo.int\/amc\/en\/domains\/search\/text.jsp?case=D2014-1930\r\n              https:\/\/udrp.adr.eu\/adr\/decisions\/decision.php?dispute_id=102189\r\n              https:\/\/udrp.adr.eu\/adr\/decisions\/decision.php?dispute_id=101872\r\n              https:\/\/udrp.adr.eu\/adr\/decisions\/decision.php?dispute_id=101861 \r\n\r\n31.\tThe failure of the Respondent to verify its email address to the Registrar is further evidence of bad faith.\r\n\r\n32.\tThe Complainant requests transfer of the Domain Name to the First Complainant.\r\n\r\n\r\n\r\n",
    "other_legal_proceedings": "None",
    "no_response_filed": "NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.\r\n\r\n",
    "rights": "See \"Procedural factors\"",
    "no_rights_or_legitimate_interests": "See \"Procedural factors\"",
    "bad_faith": "See \"Procedural factors\"",
    "procedural_factors": "The Panel is NOT satisfied that all procedural requirements under UDRP were met and is of the opinion that it would be inappropriate to provide a decision.\r\n\r\nThe complainant apparently forgot the “facts” in the electronic form of its complaint. The section is just … empty. The factual background here above is a copy paste of the Complaint and it obviously misses a \"section A\".\r\n\r\nHowever, some facts are presented in a separate file named “formatted complaint”, but  :\r\n\r\n- because it's a separate file, the Panel can't be sure that it's a comprehensive and accurate presentation of the facts as it was (should have been) present in the electronic form;\r\n\r\n- due to this specificity, the Panel can't be certain that the Respondent is aware of the facts on which the Complaint relies;\r\n\r\n- the pdf file is not signed;\r\n\r\n- the pdf file is on a blank letterhead so it's not possible to determine who drafted it and who endorses its content;\r\n\r\n- the pdf file is a protected-pdf, so it's not even possible to copy-paste it or to make it editable;\r\n\r\n- there no technical way to update the electronic complaint once it is filed.\r\n\r\nThe electronic complaint is important because it's a unique place where Parties may present their views and arguments (both factual and legal).\r\n\r\nThe annexes are not intended to replace the Complaint but to support it. In addition, in this specific case, the Annex called \"formatted complaint\" is on a white letterhead and is not signed.\r\n\r\nThe Panel is of the opinion that issuing a decision in such conditions would not meet the general procedural requirements and, in particular article 10 (b) of  the procedure rules : \"In all cases, the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case\".\r\n\r\nAlso, while putting the interests of both parties in a balance, the Panel comes to the conclusions that :\r\n\r\n- issuing a decision in such circumstances would open the door to many \"exotic procedures\" while the respect of equality, neutrality and fair treatment is important not only for Parties but also for the sake of confidence in ADR procedures;\r\n\r\n- accepting remedies such as the provision of a signed complaint could resolve this issue but will create other ones, such as : is the signed version provided today exactly the same as the initial one?\r\n\r\n- not-issuing the decision will not put a disproportionate burden of the Complainant who may file again a Complaint and make sure that all sections are duly filed in the electronic form.",
    "decision": "Rejected",
    "panelists": [
        "Mr. Etienne Wéry"
    ],
    "date_of_panel_decision": "2019-07-15 00:00:00",
    "informal_english_translation": "See \"Procedural factors\"",
    "decision_domains": {
        "BARRY-CAILLEBAUT.COM": "REJECTED"
    },
    "panelist": null,
    "panellists_text": null
}