T.V. AZTECA, S.A. de C.V.
v.
Hechos Del Interior
[Indexed as: Azteca v. Hechos]
[Indexed as: HECHOS.COM]
The National Arbitration Forum
File No. FA0004000094670
Commenced: 3 May 2000
Judgment: 9 June 2000
Presiding Arbitrator: Honorable Marilyn W. Carney
Domain name Domain name dispute resolution policy Trademark - Service Mark Confusingly similar Identical Legitimate interest - Bad faith registration Bad faith use Exclusivity Generic name - Abandonment.
Complainant is a Mexican corporation, and is the owner and registrant of trademarks and service marks including the word HECHOS. Respondent is a State of Georgia domestic nonprofit corporation which was incorporated for unstated reasons. Respondent registered the domain name hechos.com.
HELD, Name Not Transferred.
Complainant has not established that the name HECHOS is exclusively identified with its business. While the domain name hechos.com may be confusingly similar to Complainants trademarks and services marks, the word hechos is a generic word and may be used by many others. Hechos is a Spanish word which could loosely be translated to mean doings, happenings, or events or news (or, as a verb, hecho is the past participle of hacer [to do, to make]).
Complainant has failed to meet its burden of showing that Respondent has not rights or legitimate interests in the domain name, as the record is silent as to what the rights and/or interests or Respondent are. Complainant has also failed to furnish any evidence of bad faith as there is no indication that Respondent is attempting to mislead customers or tarnish the name HECHOS to the detriment of Complainant. While Complainant views the non-use of the site at hechos.com as abandonment, ICANN has no policies relating to abandonment.
Policies referred to
Uniform Domain Name Dispute Resolution Policy, adopted August 26, 1999
Registration Agreements referred to
Registration Agreement with Network Solutions Inc.., effective January 8, 1997
Administrative Decision referred to
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Carney, Arbitrator: -
THE DOMAIN NAME
This dispute concerns the domain name hechos.com. The registrar for this domain name is Network Solutions, Inc.
THE PARTIES
T.V. AZTECA, S.A. de C.V. (hereafter Azteca) filed a complaint with the National Arbitration Forum on April 27, 2000 naming Hechos Del Interior (hereafter Hechos) as the Respondent. Azteca has requested that the Domain Name hechos.com be transferred from Hechos to Azteca.
No response has been forthcoming from the Respondent.
SUMMARY OF EVIDENCE
Azteca is a Mexican corporation represented by Fulbright & Jaworski,
L.L.P., attorneys at law, Houston, Texas. Azteca, through its counsel,
has attempted to communicate with Hechos by United States mail and by E-mail.
A letter to Hechos dated March 20, 2000 was returned by the U.S. Post Office
with a notation indicating the respondent had moved and left no forwarding
address; another notation stated: gone 2 years to Argentina.
Azteca, in furtherance of its attempt to locate Hechos, communicated with
the State of Georgia Secretary of State Corporate Record Division.
The report indicated that Hechos is a Domestic
Nonprofit Corporation which was in active status not in compliance
and not in good standing. It had been incorporated February 25, 1998,
with a registered office in Marietta, Georgia, and a registered agent located
at that office address. Complainants Exhibit A shows that Hechos
registered the Domain Name on January 8, 1997 with Network Solutions, Inc.
Azteca is the holder of eleven trademarks and service marks registered in Mexico and each of these registrations is for the mark HECHOS, either alone or with a design. Exhibit B, 1 to 4, shows only the word HECHOS; Exhibit B, 5 to 11, shows the word HECHOS with a design in the O of the word. (The copy was not clear, but it appears to be a map of the Western Hemisphere in the O.)
The Complainant alleges that they have monitored the hechos.com domain
site and that it has not been operational during a two month period.
Complainant also believes that it appears that Hechos has abandoned all
intentions to use this domain name. They also note that Hechos could
resurrect the site and use it in association
with goods and services covered by Complainants trademarks and service
marks.
FINDINGS OF FACT
The undisputed evidence establishes that:
1. Complainant is a corporation, and is the owner and registrant of trademarks and service marks including the word HECHOS.
2. Respondent is a State of Georgia domestic nonprofit corporation which was incorporated for unstated reasons. It registered the Domain Name hechos.com with Network Solutions, Inc. on January 8, 1997.
3. Complainants trademarks and service marks indicate they are
used in
connection with a variety of goods and services. Specifically,
it has used the HECHOS mark in the United States as the result of its broadcasts
being received in at least the border states of the U.S.
4. Hechos is a Spanish word which could loosely be translated to mean doings, happenings, or events or news (or, as a verb, hecho is the past participle of hacer [to do, to make]).
5. Complainant has not established by a preponderance of the evidence that it should have exclusive use of the word Hechos.
6. Hechos is a nonexclusive name that is used in commerce by businesses other than Complainant and Respondent as found in independent searches of the internet.
7. Complainant has not established that the name HECHOS is exclusively identified with its business.
8. To prevail, Complainant must establish in the record that Respondent:
(a) registered a domain name that is identical or confusingly similar
to a trademark or service mark in which the complainant has rights; and
(b) has no rights or legitimate interests in respect of the domain
name; and (c) has been registered and is being used in bad faith.
9. While hechos.com may be confusingly similar to Complainants trademarks and service marks, the word hechos is a generic word and may be used by many others.
10. Complainant has failed to meet its burden of showing that Respondent has no rights
or legitimate interests in the domain name, as the record is silent as to what the rights and/or interests of Respondent are.
11. Complainant has further failed to show that the use of the word hechos is or should be exclusive to Complainant.
12. Complainant has failed to meet its burden of showing that Respondent registered and used in bad faith the domain name in violation of ICANNs Uniform Domain Name Resolution Policy, Paragraph 4(b)(i)(ii)(iii) or (iv).
Complainant has requested that the Domain Name hechos.com be transferred from Respondent to Complainant.
CONCLUSIONS
1. The Domain Name hechos.com is so close as to be identical or confusingly similar to Complainants trademarks and service marks.
2. Complainant failed to show that it should be granted exclusive use of the disputed Domain Name, as it is not exclusively associated with its business.
3. Complainant failed to show that Respondent is attempting to mislead customers or tarnish the name HECHOS to the detriment of the Complainant.
4. Complainant failed to show that Respondent has registered or used the Domain Name in bad faith. It views the non-use of the site as abandonment, but ICANN has no policies relating to abandonment.
DECISION
Based on the above findings and conclusions, it is the decision of the
Arbitrator that The Domain Name HECHOS.COM registered by Respondent remain
with Respondent.
This the 9th day of June, 2000.
Honorable Marilyn W. Carney, Arbitrator
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