1. First of all it has to be straightened out that the legitimacy of the CAC is out of question. The ICANN approved the application of the CAC to become an international provider of UDRP services on 23 January 2008. The CAC is listed in the ICANN list of providers (http://www.icann.org/
2. According to § 5 e) of the UDRP Rules and as common in the UDRP case-law (WIPO Case No. D2001-1488 "akbank.com"; WIPO Case No. D2000-0508 "homeshopping-24.com") the Panel decides the dispute based upon the complaint, as the Respondent did not file a complete and valid response.
3. The Complaint relies on § 4 UDRP. In order to succeed, the Complainant must prove that the requirements of this rule are complied with.
§ 4 a presumes that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights
(ii) the Respondent has no rights or legitimate interests in respect of the domain name
(iii) the domain name has been registered and is being used in bad faith
a) However, the basis for any claim under § 4 UDRP is an own trademark or service mark, which the Respondent infringes by holding the domain name in dispute (WIPO Case No D2000-0013 "sizesunlimited.com"). The Complainant asserts to have rights in the trademarks “Marina Leros, EVROS M.S.A” and “Leros Marina, EVROS M.S.A”, and in its company name “Leros Island’s Marina, Evros S.A.”.
b) The Complainant further asserts rights in the term ”Leros” and bases such rights on its trademarks and its company name. However, it does not provide any argument or further proof that the protection of such rights (trademarks and company name) grant a right in the mere term “Leros”. Leros is an island in Greece. Although it is not totally unthinkable to accept a trademark right in such a term, the Complainant failed to prove such right.. It provided documents, which shall confirm the rights of the Complainant in the trademarks as explicitly named and its company name. However, this cannot be regarded sufficient proof that it grants a right in the sole term “Leros”.
The documents provided indicate that the element “EVROS Marina S.A.” within the company name and “EVROS M.S.A” within the trademarks are the distinctive parts of the respective rights, particularly “EVROS”, as the term “Marina” defines a place at which services like mooring of boats are provided. Thus, it is descriptive. At least within the company name, "S.A." is likely to be descriptive as well, as it is the abbreviation for the company form "Soceite Anonymes".
In connection with “Leros”, it can be assumed that the public will understand the term “Leros Marina” or “Marina Leros” as the place on the island Leros, where boats are maintained, hibernated, repaired, etc. It will not understand it as a sign to distinguish goods or services of one company from the goods or services of another company. As said, the term “EVROS” seems to be the distinctive term of the trademarks and the company name. The Complainant has not provided any other material in this respect, which could prove this interpretation to be wrong or that the Complainant has established other rights in “Leros”, such as by secondary meaning (see also CAC UDRP case 100087 “novotelvietnam.com”).
Although, acc. to § 5 e) UDRP Rules the panel may decide the case on the basis of the Complaint alone, the panel is hindered to accept the assertion of the Complainant with respect to a right in “Leros”, as the Complainant itself provided documents, which support the panel’s opinion.
c) Therefore, the panel is of the opinion that the Complainant (if at all, see e) below) has rights in the terms as registered in its favour as trademarks and company name, only.
To fulfil § 4 a. (i) UDRP, the Respondent must have a domain name identical or confusingly similar to at least one of these rights of teh Complainant.
The Complainant asserts that it is the owner of the trademarks “Marina Leros, EVROS M.S.A.” and “Leros Marina, EVROS M.S.A.” and has proven that it is the owner of its registered company name “Leros Island’s Marina, EVROS M.S.A.”.
Compared to “leros-boatyard” the trademarks and the company name are not identical, moreover they only have one identical element “Leros” in common, the name of the Greek island. Even if “marina” and “boatyard” might have identical or similar meanings, the public will not confuse the two signs with each other, as it will understand the trademarks of the Complainant as “boatyard of the Island Leros, owned by/run by the company Evros” and the company name in a similar way. It will not confuse the domain name of the Respondent with these signs, as it focuses on the element “EVROS” rather than “Marina Leros”, “Leros Marina” or “Leros Island’s Marina”.
That the Complainant claims to be the only company with the right to use the domain name in question, is disputed by its own commitment that the Respondent is in the same business as the Complainant.
Hence, the Panel finds that the Complainant has not proven that the domain name in dispute is confusingly similar to its trademarks or company name. Rather it appears that the element “Leros Marina” is merely descriptive within the Complainant’s trademarks and its company name.
d) Moreover, the panel further doubts that the material provided by the Complainant is sufficient to prove rights in the trademarks as mentioned above. As said, the Complainant stated only that it has “submitted and filed the trademarks” in question. Neither the Complainant nor the documents provided confirm a registration of the trademarks. The panel is not aware of nor has the Complainant stated that mere trademark applications or “Declarations of National trademarks” grant rights as requested by § 4 UDRP (see also WIPO Case No D2003-0583 "usdocuments.com"). However, even if the Complainant had the asserted trademark rights, they would not be a sufficient basis of this Complaint (as laid out above).
4. As the Complainant failed to include the second domain name “lerosmarina.com” in the correct column and thus did not extend the Complaint to this domain name, and, further, did not oppose the verification of – only – the first domain name in question by the CAC with the registrar, in the opinion of the panel it failed to include this domain name in this proceeding. However, even, if the domain name was subject to this Complaint, the panel would tend to decide as laid out above in this case as well.
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