A.W.M.-Art World Media v. Informusique

WIPO Arbitration

and Mediation Center

ADMINISTRATIVE PANEL DECISION

A.W.M. - Art World Media v. Informusique

Case No. D2000-0260

1. The Parties

A. The Complainant is:

A.W.M. - Art World Media

A French limited liability company, place of incorporation in Grenoble (France)

RCS Grenoble 412 968 737;

23 rue du Docteur Mazet; 38000 Grenoble France

The Complainant’s Representative is

Annaïg Donadieu de Lavit ; Eric Schahl; Inlex Conseil;

68 rue Pierre Charron;75008 Paris France

Telephone: (33) 01.56.59.70.90; Fax: (33) 01.56.59.70.91

E-mail: inlex@iway.fr

B. The Respondent is:

1) Informusique company

Office of liquidation : Informusique c/o Lenoir, Mallet et Associés, 36 Rue

Tronchet 69006 Lyon France

The Respondent’s Representative is

Michel Girer Liquidateur amiable, at the same address

Fax: (33) 4.78.17.33.68

E-mail: c.ferrier@net4music.com

2) Net 4 Music company

Head office: 23 A rue des Garennes; 57155 Marly France

Other locations:

*20 bd Eugène Deruelle; 69003 Lyon France

*4 rue de Brest; 69002 Lyon France

*24 rue du Président Wilson; 92300 Levallois-Perret France

Without representative in the administrative proceeding

2. The Domain Name and Registrar

The dispute concerns the domain name:

musicalis.com

The Registrar with which the domain name is registered is identified below:

Network Solutions Inc

505 Huntmar Park Drive

Herndon, Virginia 20170 USA

3. Procedural History

A Complaint was filed with the WIPO Arbitration and Mediation Center (the Center)

on April 5, 2000, by e-mail and on April 7, 2000, in hardcopy. The

same day, the acknowledgement of receipt of the Complaint and a request for

Registrar verification were sent. The answer to that request was received from

Network Solutions on April 11, 2000.

On April 14, 2000, the notification of the Complaint took place and the administrative

proceeding began. On the same date the compliance with the formal requirements

of the Policy, Rules and Supplemental Rules was checked. The payment in the

required amount to the Center has been made by the Complainant.

On May 3, 2000, a Response was sent by e-mail and mail. The Center acknowledged

receipt of the Response on May 4, 2000.

The sole Panelist accepted his appointment on May 5, 2000, and submitted a

Statement of Acceptance and Declaration of Impartiality and Independence.

On May 9, 2000, the sole Panelist received from the Center the hard copy of

the file together with a copy of a letter dated April 19, 2000, from one of

the defendants: Net 4 Music, previously sent to the Center.

This dispute is within the scope of the Policy and the Administrative Panel

has jurisdiction to decide the dispute. The registration agreement pursuant

to which the domain name was registered incorporates the Policy. The domain

name was registered on April 15, 1999.

As the language of the domain name registration agreement is the English language

and as the Complainant has filed his complaint in English, the proceeding will

be led in English, according paragraph 11 (a) of the Rules, although the response

has been presented in French.

The decision is issued within the time-limit fixed by May 18, 2000.

4. Factual Background

The following facts are not contested:

A. The Complainant has registered on July 24, 1998, the following French trademark:

musicalis

Registration number: 98/744.100

The products and services designed are:

Apparatus for recording, transmission or reproduction of sounds and images;

magnetic, digital, computer data carriers, recording disc; Musical instruments;

Instructional and teaching material; Games and playthings. Education, provision

of training, entertainment, sporting and cultural activities. Books and press

publishing . Production of shows. Agencies for the artists. Organization of

competitors ( education or entertainment). Organization of exhibitions for cultural

or educational purposes. Computer programming. Software . Publishing and development.

(See annex C of the complaint).

B. The Respondent has registered on April 15, 1999, the domain name "musicalis.com".

5. Parties’ Contentions

A. Complainant

In accordance with Rules para.3, (b), (ix), the grounds on which the complaint

is made are the following:

1. The domain name "musicalis.com" is identical and is confusing

with the prior trademark "musicalis", trademark in which the Complainant

has rights.

2. As the trademark is the property of the Complainant, the Respondent should

be considered as having no rights or legitimate interests in respect of the

domain name that is the subject of the Complaint.

3. On October 28, 1999, the Net 4 Music company bought the Informusique’s

business.

Therefore, Net 4 Music is now the owner of the domain name "musicalis.com".

Furthermore, Net 4 Music is the main competitor of the Complainant. Net 4

Music retains this domain name with bad faith and seriously disrupts the business

of the Complainant.

B. Respondent

1. Net 4 Music is not the holder of the domain name "musicalis.com"

and has not purchased it. This point is upheld by a letter of Net 4 Music, dated

April 19, 2000.

2. Net 4 Music is not a competitor of the Complainant and does not use this

domain name.

3. The Respondent Informusique is the holder of the domain name "musicalis.com"

since January 19, 1999, by virtue of an agreement signed by the Complainant

himself.

4. Up to the time of filing of the Complaint, the Complainant has not filed

any official claim to obtain this domain name and neither the technical, administrative,

billing contacts of the domain name, nor Informusique, have been asked to liberate

the same for the benefit of the Complainant.

5. The Respondent, a winding-up company, does not want to be involved any longer

in the case and will accept the outcome of an official claim in accordance with

the proceedings of ICANN or INTERNIC to transfer the domain name "musicalis.com",

provided that no supplemental related cost should be charged or incurred by

the Respondent.

6. Discussion and Findings

Paragraph 15 (a) of the Rules instructs the Panel as to the principles the

Panel is to use in determining the dispute: "A Panel shall 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 seems applicable".

Paragraph 4 (a) of the Policy directs that the Complainant must prove each

of the following:

1) that the domain name registered by the Respondent is identical or confusingly

similar to a trademark or service mark in which the Complainant has rights;

and,

2) that the respondent has no rights or no legitimate interests in respect

of the domain name; and,

3) the domain name has been registered and used in bad faith.

A. Identity or similarity

The domain name "musicalis.com" of the Respondent and the prior trademark

"musicalis" of the Complainant are identical.

B. Rights or legitimate interests of the Respondent in respect of the domain

name

Although the Respondent alleged to be allowed to hold and use the aforesaid

domain name since January 19, 1999, according to an agreement signed between

the parties, this agreement has not been attached to the Response. Thus the

Panel concludes that the Respondent had no right or legitimate interest to register

a domain name consisting of the trademark of a third party.

C. Registration and use in bad faith

The Complainant does not establish by any documents, letters or otherwise,

that the registration and use of the domain name "musicalis.com" would

have been made in bad faith. Nevertheless the Complaint will be accepted for

the following reason.

D. Respondent’s assent to the Complaint

In his Response, the legal representative of the Respondent writes that Informusique

has spent enough money and time in connection with this dispute and states that

Informusique will accept the outcome of an official claim, in accordance with

the proceedings of ICANN or INTERNIC, to liberate the domain name "musicalis.com",

on condition that Respondent does not incur any new related expense.

The Administrative Panel finds that the present Complaint of A.W.M - Art World

Media, requiring the Administrative Panel to issue a Decision that the contested

domain name be transferred to the Complainant, is an official claim in accordance

with the provisions approved by ICANN on October 24, 1999, and, on the other

hand, finds that in his Response of May 3, 2000, the Respondent: Informusique,

current holder of the domain name "musicalis.com", has therefore given

an explicit assent to the transfer of registration of the aforesaid domain name

to the Complainant.

7. Decision

For all the above reasons, the Panel decides that the domain name registered

by the Respondent is identical to the trademark in which the Complainant has

rights, and that the Respondent has no right or legitimate interest in respect

of the domain name at issue. The Panel also decides that it is not necessary

to determine whether the Respondent’s domain name has been registered and is

being used in good or bad faith, because the Respondent has agreed in his Response

to transfer the said domain name in the context of an official claim in accordance

with ICANN proceedings, such as the Complaint and the present proceedings brought

under the Policy.

Accordingly, pursuant to Paragraphs 4 (i) of the Policy and 15 of the Rules,

the Panel requires that the registration of the domain name "musicalis.com"

be transferred to the Complainant: A.W.M. - Art World Media company.

Christian Le Stanc

Sole Panelist

Dated: May 9, 2000