Rain Forest , SL of  Madrid, Spain just won the UDRP lottery and got the generic domain name RainForest.es

The decision was handed down in Spanish and we used Google translate into English

The panelist Albert Agustinoy Guilayn has some pretty disturbing language in this decision:

The Respondent is the holder of many generic domain names , most of which are publicly offered for sale . Thus, the use of the domain name seems to fit into an obvious speculative behavior .  In this regard , the Respondent should have taken into account that while the name ” rainforest” is a generic term in English, this is not the case regarding the Spanish language.

The Respondent expressly acknowledged not only its public offering of the domain name , but his will – even at this stage of the process – to transfer the domain name exchange for alleged expenses whose amount has not justified mode any .

In the expert opinion, this proven willingness to sell domain name should be considered as an important element of bad faith of the Respondent .

Like I said troubling.

Here is the rest of the ruling:

The Claimant is a Spanish company created for the design , construction and management of zoos. Currently manages two parks in Spain under the name ” Bioparc ” .

The Complainant owns trademark No. 230425 Spanish “RAIN FOREST “, recorded with effect from March 5, 2002 in Class 41 of the International Classification .

Furthermore , Claimant holds the Spanish brand No. 2601153 “RAIN FOREST COSTA DEL SOL ” , recorded with effect from November 15, 2004 in Class 41 of the International

The Respondent is a German citizen who has not provided information on their circumstances or activity.

In this regard, the only data that the expert has noted regarding the Respondent is that apart from the domain name, owns a large number of domain names based on generic names in English (for example, tattostudio.US, handynews.info, muesli.us, cocktailbar.us,  promise.dk and fairplay.us) .

The expert could also see that most of these domain names is publicly offered for sale and, in all cases , are connected to Web sites domain name parking .

The Domain Name was registered by the Respondent on February 17, 2013 .

At the time of issuing this decision, the Domain Name is connected to a web site operated by Sedo.com and offers numerous links to third party Web sites linked .

In the Complaint , Plaintiff alleges:

– Who is the owner of a Spanish trade name and a Spanish brand based on the name “rain forest” , which has been used for years to promote their enclosures and zoo management services , having achieved a significant presence in the Spanish market;

– The Domain Name is identical to the trade name owned by the Applicant , as the only difference between them is the inclusion of the corresponding Spain area code in the Domain Name , responding that suffix to the territorial extension ” is . ” Spanish for domain names ;

– The Respondent does not hold any rights or legitimate interests in the domain name since neither has used , or made demonstrable preparations to use , in connection with a bona fide use or has been commonly known by the domain name or develop any activity related to the sector of zoos in Spain , nor has a legitimate noncommercial or fair use of the Domain Name ;

– The Respondent registered in bad faith, the domain name to be aware of the existence of the trade name and mark of the Complainant in Spain and desiring , in that sense, take unfair advantage of his notoriety . He has also acted in bad faith when , by not making use of it , has created a risk of potential activation of a domain name and Web site that automatically imply a violation of the rights of the Plaintiff. The same can be concluded , indicating the Claimant regarding the redirection of the domain name to a website with numerous advertising links that lead to commercial third party websites.

– That, for the reasons stated above, the registration of the domain name should be transferred to your favor.

B. defendant

Respondent argues in its reply to the Complaint :

– That the prior rights alleged by the Claimant did not give him a preference over the domain name because the term ” rainforest” in which the domain name is based is an unprotected name, given its generic nature . In this regard, the Respondent states that the name ” rainforest” is registered in most countries with the appropriate country domain extensions and all TLD and in no place is protected .

– . Which, since the creation of ES domains for over fifteen years, the domain name was free .

Thus, whether the Plaintiff would have had a real interest in it I could have registered at any time. In this regard , the Respondent contends that the reason for this absence record is derived from the will of the Applicant saving the corresponding expenses.

– That the inactivity of the web page associated with the domain name does not constitute cheating, given the low level of visitors that page has since activation .

– That the accusation made by the Complainant that the domain name was registered with false profit . Instead, the Respondent contends that wanted to design a page about the rainforests in different languages ​​, however , due to some alleged problems that Respondent had with a web designer, the page has not been provided with any content yet.

– The estimated value of the Domain Name amounts to 800 Euros.

However, the Respondent contends that due to problems encountered with the Web designer and a permanent increase in the maintenance costs of the Domain Name , decided to publicly put it on sale for 500 Euros.

In this regard, the Respondent indicated that Claimant therefore had the opportunity to acquire the domain name for a reasonable price , so that should rule out profit Respondent regarding the sale of the domain name . Concludes the Respondent indicating that it is willing to negotiate mutually agreed upon delivery of the Domain Name , provided the Applicant to reimburse the expenses incurred .

– That, in response to all the above, the Complaint should be dismissed .

However, before proceeding with this analysis the expert wishes to indicate that in order for adequate interpretation criteria applicable to the circumstances of this case , will use the interpretation in decisions taken in the framework of the implementation of the Policy uniform dispute resolution in domain name ( hereinafter ” UDRP ” ) , which has been the basis for the development of the regulation. The above criteria , in fact, already been used in previous decisions applying this Regulation ( see , among others , decisions Citigroup , Inc. and Citibank NA c . Ravi Gurnani Gurnani , WIPO Case No. 0001 – DES2006 , Ladbrokes International Limited c Hostinet Ltd., WIPO Case No. DES2006 – 0002; . Ferrero and Ferrero SpA Ibérica, SA c Maxtersolutions CB , WIPO Case No. DES2006 -0003 ) . .
A. Identity or similarity to the point of causing confusion with other terms on which the Claimant alleges possess Initial Rights

The first circumstance that the Claimant must prove under the Regulation , Article 2 is that the Domain Name is identical or confusingly similar to a name on which the Applicant holds ” prior rights ” , including within the definition of the concept established by Article 2 of Regulation both marks with effect in Spain as well as the Spanish trade names.

In this regard , it is recalled that the Plaintiff simply holds a Spanish trade name entirely based on the name ” Rain Forest” , which should be considered , for the purposes of the Regulation, identical to the Domain Name.

Thus, the Panel finds that the Complainant has demonstrated the occurrence of the first of the elements required by Regulation to estimate demand .

B. Rights or Legitimate Interests

The second element that , according to the Regulation , Article 2 , Complainant must prove that Respondent does not hold any rights or legitimate interest in the Domain Name.

Under the UDRP have been identified three scenarios – for illustrative purposes only – where it can be considered that the Respondent holds a right or legitimate interest in the Domain Name and that, therefore , the respondent registered and used in a manner legitimate. Specifically , these assumptions are:

( i ) Have used , prior to the receipt of any notice of the dispute , the domain name or have demonstrable preparations for use in connection with a bona fide offering of goods or services .

( ii) They are commonly known by the domain name , even if you have acquired no trademark rights to products or services.

( iii ) have made ​​a legitimate noncommercial or fair use of the domain name , without intent to divert consumers or to tarnish misleadingly good name brands Claimant .

In this case , there seems to attend any of the above circumstances or any other that would consider the existence of a right or a legitimate interest of the Respondent regarding the disputed domain name.

In this regard, it should be remembered that the main argument by the Respondent is that the domain name be used for the development of a Web site dedicated to the rainforests in several languages. In relation to this claim, it make the following observations :

– In the opinion of the expert , a description as indicated by the Respondent is clearly insufficient in order to consider the possible existence of a right or legitimate interest genuinely base. It is difficult to consider the occurrence of a legitimate interest based on the reference to a project does not run and on which , in fact the Respondent does not provide any evidence.

– Consistent as described in the previous section , the Respondent has not provided any on draft accreditation indicated in the Answer to the Complaint .

Thus, this lack of contribution by the Respondent of convincing evidence on the origin , development and implementation of the project related to domain name, combined with the evidence to the contrary by the Claimant , leading the expert to conclude that the Respondent has not got to try the concurrence in this case of a right or legitimate interest in the Domain Name.

Nor can the argument accepted by the Respondent to justify the registration of the Domain Name in the fact that the Claimant did not proceed to register the same having been authorized to do so.

Acceptance of this argument would lead to the absurd to consider legitimate registration of any domain name is identical or confusingly similar to a trademark or other distinctive signs , if the owner of the mark or other distinctive signs had not made prior registration or in periods specifically authorized for this purpose or the registration of such domain names had already been open to the public .

The domain name registration in such circumstances is an option and not a must for owners of trademarks and other distinctive signs protected , and lack of exercise that discretion in any could be considered as a waiver or decline the exercise of the rights attached the ownership of the mark or badge in question.

Therefore , the Panel considers satisfied the second element required by the Regulations.

C. Registration or use of the Domain Name in bad faith

The third element required by the Regulation , Article 2 , is the Applicant to prove that the Respondent has registered or used the domain name in bad faith.

Since the regulation requires one of the two conditions (ie , registration or use in bad faith) , the Panel considers that the Complainant has provided sufficient evidence of the use by the Respondent of the Domain Name in bad faith. In view of the doubts expressed about the veracity of the alleged development project a website on tropical forests, the conduct of the Respondent regarding the domain name following registration can hardly be considered as made ​​pursuant to a pattern of good faith .

This impression is reinforced when taking into account the following factors :

– The Respondent is the holder of many generic domain names , most of which are publicly offered for sale . Thus, the use of the domain name seems to fit into an obvious speculative behavior . While such conduct should not be considered contrary to the Regulation for unprotected by Initial Rights (in the sense defined by the regulation itself ) designations , which is itself an offense with names like that is the basis of the Domain Name . In this regard , the Respondent should have taken into account that while the name ” rainforest” is a generic term in English, this is not the case regarding the Spanish language.

It should also be borne in mind that , considering the non-generic nature of the term ” rainforest” in Spanish , it could be the case – as indeed has happened in this process – that a third party had registered that name as a valid prior right in Spain .

– The Respondent expressly acknowledged not only its public offering of the domain name , but his will – even at this stage of the process – to transfer the domain name exchange for alleged expenses whose amount has not justified mode any .

In the expert opinion, this proven willingness to sell domain name should be considered as an important element of bad faith of the Respondent .

– The Respondent has not presented any convincing argument to justify future use of the domain name nor project above the alleged content.

With respect to Respondent message dated November 11, 2013 the Panel finds Respondent redundant argument that Claimant , because it is a commercial enterprise , you can register your domain name under the “. Com.es ” .

Considering all these factors , the Panel must be satisfied that the Respondent has used the domain name in bad faith.

For the foregoing reasons , in accordance with Article 21 of the Rules, the Panel orders that the Domain Name <rainforest.es> be transferred to the Complainant.