Case No.: WIPO 2010PL2

FINAL AWARD

In the matter of an arbitration under the WIPO Expedited Arbitration Rules for Domain Name disputes under .PL

between:

Elite Licensing Company SA
Route des Arsenaux 15
Switzerland

Claimant

and

Jack Onopa
208 Bond St.
New Britain 06053
CT, United States of America

Respondent

Arbitral Tribunal

David J.A. Cairns

Representatives of the Claimant

Kancelaria Prawno-Patentowa
Sylwia Oleksiewicz
Ogrodowa 28/30 lok. 306
00-896 Warsaw
POLAND

Respondent is not legally represented

This is the Award issued by me as Sole Arbitrator in a dispute between Elite Licensing Company SA (the "Claimant") and Mr. Jack Onopa (the "Respondent") regarding a dispute over the domain name <elitemodel.pl> (the "disputed domain name").

1. THE PROCEEDINGS

1.1. Parties to the Arbitration:

1.1.1 The Claimant is Elite Licensing Company SA of Switzerland.

1.1.2 The Respondent is Jack Onopa of the United States of America.

1.2. Arbitration Agreement, Rules and Place of Arbitration:

1.2.1 This instant case has been submitted under Articles 6-9 of the WIPO Expedited Arbitration Rules for Domain Name disputes under .PL (the "Expedited Rules"; available at https://www.wipo.int/amc/en/domains/rules/cctld/expedited/pl/index.html). Both parties have signed the Arbitration Agreement in accordance with Article 6 of the Expedited Rules.

1.2.2 The version of the Expedited Rules applicable to the present arbitral proceedings is, pursuant to Article 2(b) of the Expedited Rules, that in effect as of the date of commencement of this arbitration.

1.2.3 In accordance with Article 34 of the Expedited Rules, the Center has decided that the Place of Arbitration be Madrid, Spain.

1.3. Procedure:

1.3.1 On December 18, 2010, the Claimant transmitted by email to the WIPO Arbitration and Mediation Center (the "Center") and to the Respondent the Request for Arbitration together with the Statement of Claim (together, the "Statement of Claim") in accordance with Article 10 of the Expedited Rules.

1.3.2 Pursuant to Article 8 of the Expedited Rules, the date of commencement of the arbitration is December 23, 2010 and in accordance with Article 12 of the Expedited Rules, the due date for Answer to the Request and Statement of Defense was January 26, 2011. The Respondent did not formally submit any Answer to the Request and Statement of Defense but sent an email communication to the Center regarding this matter on December 21, 2010.

1.3.3 On February 23, 2011, after receipt of the Statement of Acceptance, Impartiality and Independence, the Center appointed the undersigned, Mr. David J.A. Cairns, as Sole Arbitrator pursuant to Article 15 of the Expedited Rules.

1.3.4 On March 2, 2010 the Sole Arbitrator requested that the Parties provide their observations (or further observations) on the applicable law to the substance of the dispute; to advise whether a hearing was requested and if so the identity of any witnesses and the subject matter of their testimony; to advise whether they wished to make any further written submissions; and to advise if there were any other matters they wished to raise before the arbitration proceeded.

1.3.5 The Respondent answered on March 2, 2011, and on March 3, 2011 offered to sell the disputed domain name to the Claimant. On March 16, 2011 the Claimant submitted its observations in response to the Sole Arbitrator's request. On the same date the Respondent sent two emails to the Sole Arbitrator and the Claimant regarding the merits of the arbitration. On March 18, 2011 the Claimant submitted some short observations in response the Respondent's communications.

1.3.6 On March 21, 2011 the Sole Arbitrator pursuant to Article 51(a) of the Expedited Rules suggested to the Parties that they explore a possible settlement, and report to the Sole Arbitrator no later than April 1, 2011 of any progress in settling this dispute. The Claimant wrote to the Respondent on March 24, 2011 proposing that "this matter can be settled amicably provided you accept to transfer the litigious domain name 'elitemodel.pl' to the Complainant free of charge. Let us know about your position". On April 1, 2011 the Claimant advised that it had not received any response from the Respondent to this settlement proposal.

1.3.7 On April 18, 2011, with reference to Article 44 of the Expedited Rules, the Sole Arbitrator declared the proceedings closed.

2. SUMMARY OF SUBMISSIONS

2.1. In its Statement of Claim and its subsequent observations, the Claimant states the following:

2.1.1. The Claimant is part of the Elite group of companies that run a worldwide and famous model agency. The agency was established in 1972 with the registration of Elite Model Agency in France, and is the first modelling agency in the world, and works with many supermodels. The Claimant organises every year a 'Model Look' contest worldwide.

2.1.2. The Claimant has agencies in almost 40 countries, including Poland. It has official websites in various jurisdictions including Poland (see "http://www.elitemodels.pl"). The first model agency in Poland was established in 2003, although the Elite Model Look contests had been organised in Poland from the end of the 1990's (with an official website at www.elitemodellook.com.pl). The Claimant annexed as evidence various articles regarding Polish editions of this contest.

2.1.3. The Claimant's use of the ELITE and the ELITE MODEL brands extends well beyond modelling with branded goods now including beachwear, shoes, bags, mobile phones, sunglasses, watches, perfumes, cosmetics, motorcycles and bars.

2.1.4. The Elite group of companies is the owner of many trademarks consisting in or comprising the word "elite". In particular, the Claimant owns the following trademarks: (i) Community trademark Nº 000749770 registered on February 19, 2004 for the trademark ELITE MODEL LOOK; (ii) Community trademark Nº 004144961 registered on 19 January 2006 for the trademark ELITE MODEL SUN; (iii) Community trademark Nº 004995114 registered on 14 June 2007 for ELITE MODEL LOOK. The Claimant also refers to various WIPO UDRP domain name decisions which have recognised the reputation of the ELITE trademarks.

2.1.5. The Claimant alleges that the previous owner of the disputed domain name directed it to a website with pornographic content. The Claimant sent a cease-and-desist letter to the previous owner, who was based in the United States, who proceeded to surrender the disputed domain name. The Claimant alleges that the Respondent registered an option for the disputed domain name on 5 October 2010 at 2:29, just 10 minutes before the previous owner surrendered the domain name. The Claimant states that the Respondent lives about 12 kilometres from this previous owner, making this case an example of 'cyberflight' with the previous owner transferring disputed domain name on receipt of notice of the dispute.

2.1.6. The Claimant says that the registration and use of the disputed domain name infringes upon the Claimant's reputation and goodwill in breach of the Polish Civil Code as well as the Act of 16 April 1993 on suppression of unfair competition (Journal of Laws from 2003, number 153, item 1503). It also states that the Respondent has infringed the Uniform Dispute Resolution Policy.

2.1.7. The Claimant says that the disputed domain name is confusingly similar to the registered ELITE trademarks, as well as to the trade names ELITE and ELITE MODEL in which the Claimant has rights. It states that the main and most distinctive element of the Claimant's trademarks is the word "Elite" as the first word to be seen and to be pronounced as well as the most distinct and dominant element of the trademarks. It states that the other elements of the Claimant's trademarks are of a secondary nature and are descriptive. It states that the term "model" describes the services offered by the Claimant to the customers. The term "model" within the disputed domain name is descriptive and should not be taken into account when assessing the similarity with the Claimant's trademarks. Further, the term "model" is a generic/descriptive term relating to the field of activity in which the Claimant operates, and does not avoid confusion but on the contrary enhances confusion and leads the public to believe that the disputed domain name is linked to or affiliated with or at least endorsed by the Claimant.

2.1.8. The Claimant further states that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In this regard it states that the Claimant has no trademark rights consisting in the term "Elite", that the Respondent is not using the disputed domain name for a bona fide offering of goods or services, that the Respondent is not currently known by the disputed domain name, that the Claimant has never assigned, licensed, sold or transferred its rights to the Respondent, and that the Respondent is not making any legitimate noncommercial or fair use of the disputed domain name, and finally the Respondent cannot have been ignorant of the Claimant's rights at the time it registered the disputed domain name.

2.1.9. The Claimant also states that the disputed domain name was registered and is being used in bad faith. It states that the registration without authorisation of a domain name that comprises a famous trademark is in itself evidence of bad faith. It also states that it is hard to imagine that the Respondent could have lacked knowledge of the Claimant and its trademarks when registering the disputed domain name. The Respondent states that the disputed domain name does not involve any website or online presence. However, taking into account all the circumstances of the case the passive holding doctrine applies to this case, and refers to Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case D2000-0003.

2.1.10. With respect to the passive holding doctrine the Claimant refers specifically to the extent and notorious status of the Claimant's trademark registrations, the absence of any rights of the Respondent in the disputed domain name, the lack of any connection of the disputed domain name with any bona fide offering of goods or services, the circumstances of the acquisition of the domain name by the Respondent, and concludes by stating that taking all of the above into account it is impossible to conceive of any plausible, actual or contemplated active use of the domain name by the Respondent that would not be illegitimate such as an infringement of the Claimant's prior rights.

2.1.11. The Claimant by way of relief pursuant to 36 (a) of the Expedited Rules requests that the disputed domain name be transferred to the Claimant, and the costs of the arbitration proceedings amounting to EUR 1,500 be awarded to the Claimant. In addition, in the Claimant's Observations submitted on March 16, 2011 the Claimant sought its reasonable expenses in presenting its case, notably those incurred for legal representatives.

2.2. The Respondent did not submit any formal Statement of Defense but made various communications during the course of the arbitration.

2.2.1. The Respondent in his email of December 21, 2010 stated that his interest in Polish domain names arises because he was born in Poland and to keep his Polish heritage got involved with the .PL domain names. He further states that his involvement with .PL domain names "is more of a hobby than a job". He states it is not his primary income and is not designed to earn any income.

2.2.2. The Respondent states that the name Elite Licensing Company is not even close to <elitemodel.pl>. He states that he has merely put an option on the disputed domain name and does not own it. The Respondent states that the purpose of the registration is to put a picture of his fiancée on the website who does modelling work for many agencies. He also says that Elite has a broad meaning and is a descriptive word. He also states that he does not have bad faith and does not wish to use the site to say anything negative about the Claimant. The Respondent states that he would not be trying to sell the same product as the Claimant and that "there is no way they can prove that I have put an option on to use the domain name in the bad faith as I've never heard of such company [i.e. the Claimant] in my entire life nor do I have any experience with them, neither negative nor positive".

2.2.3. In a communication of March 2, 2011 the Respondent states the following:"I do not care for the domain. I don't even own the domain. I just put an option on it and probably I am not the only one. I do not have the domain. I do not own the domain. I can't find a way to cancel the option that I put on the domain, so I guess for AZ.PL (polish domain registrar) to release domain from my option they require a court order.

In my defense I have never heard of Elite Management or Elite Model when I put the option on the domain. I just wanted to develop domain for my girlfriend, a blog with all the latest models ( she was into models and did modeling herself.) Now. It's past due. she is my ex girlfriend and I am not interested in the domain at all.

Perhaps I should contact the elite models lawyers and let them know that I will release domain for million dollars. Obviously its worth to them that much."

2.2.4. In a communication of March 3, 2011 to the Tribunal the Respondent stated: "... I am willing to settle down if EliteModeling posts a payment of $2,500 through a secure gateway such as PayPal".

2.2.5. The Respondent sent two further emails on March 16, 2011 to the Claimant and the Tribunal. In the first he states: "I have received the email with the attachments, read through them and will repeat again what I already stated previously.

"I do NOT care for the domain elitemodels.pl, I DO NOT OWN THE DOMAIN. If I did I would have released it at the sign of first communication with Elite Models. Further Elite Models have never contacted me asking to release the domain. If they did I would do it. As far as Bad Faith goes I did not even know Elite Models exists as company or corporation. I have never heard of them, worked for them nor intended to USE the domain to infringe the company that I have never heard off.

Furthermore I will not cover any expenses inquired by Elite Model Company nor by their lawyers and I ask the WIPO arbitrator not to impose any expenses on me".

2.2.6. The Respondent stated in his second email on the same day that:

"Also please note that I do not have many adult services as the Claimant claims. I have one adult service and few other sites such as www.freenewyorkcityclassifieds.com and www.atozworlddirectory.com and www.switalskitreeservices.com plus few undeveloped domains such as www.ameridir.com and www.newenglandslist.com plus www.jackonopa.com.

So for the Claimant to claim that I am an adult entrepreneur and that I will use elitemodels.pl for adult industry is just not a valid claim.

Also the only thing I know about Polish Law is that it has many loopholes that I always hear about in the news".

3. FINDINGS

3.1.1 This dispute arises pursuant to the NASK Regulations of Option for Registration of a Domain Name (available at: http://www.dns.pl/english/option.html) (hereafter "Option Regulations"). The Option Regulations provide for the registration of an option over a domain name held by a third party. The registrant of an option can register the domain name when it becomes available.

3.1.2. Clause 13 of the Option Regulations provides: "Granting the option does not mean granting any rights to the domain name. If any third party informs NASK about possible violation of its rights by the entity, which obtained the option, registration of the domain name shall be suspended until the dispute is settled..."

3.1.3. Clause 15 of the Option Regulations provides: "If NASK is served with a decision of a competent common court or an arbitration court, or with a settlement, the content of which states that the option violates rights of a third party, the Agreement shall terminate."

3.1.4. The Respondent registered an option on the domain name on October 5, 2010 at 2.29, ten minutes prior to the surrender of the domain name by the previous owner. The Claimant notified NASK of its rights prior to the Respondent completing the registration of the domain name that was now available following its surrender by the previous owner.

3.2. The Applicable Law:

3.2.1 The Claimant and the Respondent signed the arbitration agreement on November 18 and 10, 2010 respectively. The arbitration agreement included the following paragraphs:

"We, the undersigned parties, hereby agree that the dispute regarding the domain name <elitemodel.pl> shall be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules for Domain Name Dispute Resolution under .PL (the Expedited Rules).

Pursuant to Article 48 of the Expedited Rules, the dispute shall be decided in accordance with the law or rules of law chosen by the parties. Failing a choice by the parties, the Tribunal shall apply the law or rules of law that it determines to be appropriate."

3.2.2 Notwithstanding the reference in the arbitration agreement to Article 48, it is in fact Article 46(a) of the Expedited Rules that relates to the applicable law. Article 46(a) states:

"(a) The Tribunal shall decide the substance of the dispute in accordance with the law or rules of law that it determines to be appropriate, taking into account any observations which the parties may have made. In all cases, the Tribunal shall decide having due regard to the terms of any relevant contract and taking into account applicable trade usages."

3.2.3 The Claimant submits that the applicable law is Polish Law and alternatively the Uniform Dispute Resolution Policy (hereafter "UDRP" or "Policy"). It developed its submissions under both Polish law and the UDRP requirements. The Respondent did not make any express observations on applicable law, except to acknowledge his ignorance of Polish law. His communications show some familiarity with the dispute resolution function of Center pursuant to the UDRP.

3.2.4 The NASK [the Scientific and Academic Computer Network, based in Warsaw] Domain Name Regulations and the Option Regulations provide for three alternative fora for dispute resolution. These include the Polish courts, the Court of Arbitration at the Polish Chamber of Commerce, and the Center. The Center is empowered to resolve disputes in which both parties are registered or resident outside the Republic of Poland.

3.2.5 The UDRP was established by ICANN [the Internet Corporation for Assigned Names and Numbers] in 1999. ICANN runs an worldwide accreditation system for domain name registrars for gTLD, and draws up contracts with each registry. The UDRP has achieved wide acceptance since 1999. Paragraph 4(a)-(c) of the UDRP establishes the substantive rules for the resolution of disputes between domain name owners and third parties, being an accepted international standard for cross-border domain name disputes. Paragraph 4(a)-(c) of the UDRP therefore is an authoritative, well-established and widely known set of transnational rules, designed for disputes, such as the present, relating to domain name registration alleged to infringe established trademarks or service marks. It provides the set of rules with which this dispute has the closest connection.

3.2.6 It is true that ICANN does not specifically accredit registrars to provide ccTLD registration services. Nevertheless, paragraph 4(a)-(c) of the UDRP is an equally appropriate source of rules for individual ccTLDs, such as ".PL", that provide the procedural framework but lack substantive rules for the expedited resolution of domain name disputes. The fact that the NASK Regulations distinguishes between disputes involving Polish parties (that may be referred to the Polish courts under Polish law) and international disputes lacking a Polish party suggests also that transnational rules, such as the UDRP, are more appropriate for this class of international disputes.

3.2.7 The UDRP deals specifically with domain name registrations, whilst in the .PL ccTLD space it is possible to register an option on a domain name prior to completing the registration of the domain name itself. The UDRP is flexible and easily adaptable to this variation on the usual domain name registration rights. An option is a contingent right of registration, and if necessary the elements of the Policy can be examined contingently, that is, by asking whether the registration would breach the Policy if the respondent sought to exercise the option.

3.2.8 For these reasons and pursuant to Article 46 of the Rules the Tribunal decides that the appropriate substantive rules applicable to this dispute are those set out in paragraph 4(a)-(c) of the UDRP. Insofar as the rules of paragraph 4 of the UDRP may need to be supplemented by other rules, the appropriate source of these rules is Polish law

3.2.9 Paragraph 4(a) of the UDRP requires a Claimant to prove all three of the following elements: (i) that the disputed domain name "is identical or confusingly similar to a trademark or service mark in which the Claimant has rights"; (ii) that the respondent has "no rights or legitimate interests in respect of the domain name"; and (iii) that the respondent's domain name "has been registered and is being used in bad faith".

3.2.10. Paragraph 4(b) of the UDRP elaborates some circumstances that shall be evidence of the registration and use of the domain name in bad faith. Paragraph 4(c) sets out various circumstances which, if found by the Panel to be proved based on the evaluation of all the evidence presented, shall demonstrate that the Respondent has rights and legitimate interests in the disputed domain name.

3.2.11. Accordingly, in applying the UDRP in this case the Claimant must prove these the three elements in accordance with paragraph 4(a)-(c), bearing in mind that this case involves an option on registration rather than actual registration.

3.3 Paragraph 4(a)(i) UDRP: Identical or Confusingly Similar

3.3.1 The Sole Arbitrator accepts that the Claimant owns the registrations of the Community Trademarks referred to above, and also that ELITE and ELITE MODEL are well known trademarks associated with the Claimantâ€™s business both in Poland and around the world.

3.3.2 The disputed domain name is not identical with the Claimant's Community Trademarks. The Claimant's Community Trademarks consist of three words, only two of which appear in the disputed domain name. The disputed domain name does not include any additional elements (except the cc-TLD suffix .pl that is disregarded for the purposes of the comparison required for the first element of the Policy) that might serve to distinguish the disputed domain name from the Claimant's trademarks.

3.3.3. The words "elite" and "model" are common and descriptive English words, but together they form a distinctive combination that refers to the Claimant's business. The Sole Arbitrator is satisfied that the disputed domain name is confusingly similar to the Community Trademarks that include the words "Elite Model", and that Internet users will associate the disputed domain name with the Claimant's trademarks, and assume that the Respondent's website relates to the Claimant's business.

3.3.4. Accordingly, the first element of the Policy is satisfied.

3.4 Paragraph 4(a)(ii) UDRP: Rights or Legitimate Interests

3.4.1 The Panel notes the following circumstances in relation to any possible rights or legitimate interests of the Respondent in the disputed domain name: (i) there is no evidence that the Respondent owns or has contractual rights in any registration of an ELITE MODEL trademark; (ii) the Respondent is not authorised or licensed by the Claimant to use the name "Elite Model" or to register and use the disputed domain name; (iii) the Respondent in its Response has not suggested that it is commonly known by the name "Elite Model", and there is no other evidence to suggest the circumstances referred to in paragraph 4(c)(ii) exist in the present case;

3.4.2 In respect of the proposed use of the website, the Respondent has suggested his original intention was to develop a website for a girlfriend with an interest in modelling. If there were any evidence to corroborate this intention, then this might constitute a basis for 'a legitimate noncommercial or fair use of the domain name' within the meaning of paragraph 4(iii) of the Policy. However, there is no evidence to suggest any steps were taken to implement this purpose, and the Respondent admits that this is no longer his intention of holding the option. Further, although noncommercial such a use would be unlikely to be legitimate because it would involve the use of a well know trademark in respect of exactly the same sphere of activity (modelling) as the trademark is used commercially. Finally, for the reasons explained below in the discussion of bad faith, the Sole Arbitrator considers that the Respondent knew of the Claimant's business and trademarks at the time of registration, and intended to profit from the ownership of the disputed domain name. The Sole Arbitrator considers that any personal use of the domain name would have been merely instrumental and transitory, and always subject to the primary purpose of commercial gain.

3.4.3 Accordingly, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

3.5 Paragraph 4(a)(iii) UDRP: Registered and Used in Bad Faith

3.5.1 It is well established that the third element of the Policy requires both registration and use in bad faith. In the case of an option, the question of registration in bad faith can be examined in exactly the same way as other UDRP cases, but â€˜use' is more complex. An option cannot be used to host a website in the same way as a domain name registration, but it can be used in other ways. In particular, an option may be offered for sale, associated with a prospective website or business, held in order to impede access to the domain name by another party, or it may be passively held for no declared purpose.

3.5.2 The Respondent states that he had never heard of the Claimant nor had any experience with them when he registered the option. He states that he purchased the option because of his Polish heritage and for the purpose of developing a domain name for a former girlfriend. During the arbitration the Respondent insisted that he had no further interest in the disputed domain name and that he was willing to release it. He first suggested a price of $1 million, and then $2,500. He said that the Claimant had never contacted him requesting the release of the domain name, and if the Claimant did so then he would release the domain name. However, when the Claimant did contact the Respondent regarding the transfer of the option, the Respondent did not reply.

3.5.3 The Sole Arbitrator does not accept that the Respondent registered the option on the disputed domain name without knowledge of the Claimant's business or trademarks. It is too much of a coincidence to choose an expression that includes the name and constitutes part of international trademarks name of a famous modelling agency. The option also gave the Respondent's rights to a domain name that differs only in one letter (the plural 's') from the Claimant's own .pl website, meaning that it would be well situated to receive traffic intended for the Claimant's website where Internet users omitted the final letter of the top level portion of the domain name. Bad faith at the time of registration is also corroborated by the indications of collusion with the previous owner suggested by the fact that the option was registered 10 minutes prior to the previous owner (who had been contacted by the Claimant) surrendering the domain name, and the fact that the previous owner lives a mere 12 kilometres from the Respondent in the United States. The timing of the registration of the option was never explained by the Respondent.

3.5.4 The Sole Arbitrator is also satisfied that the Respondent has registered and used the option in bad faith on the grounds set out in paragraph 4(b)(i) of the Policy in that the Respondent acquired the option primarily for the purpose of selling the option or the domain name to the Claimant valuable consideration in excess of documented out-of-pocket costs directly related to the domain name. The Claimant's two offers to sell the option to the Claimant during the arbitration, and his failure to respond to a proposal to settle the arbitration by the free transfer of the domain name, demonstrate this purpose of profiteering from the transfer of the disputed domain name.

3.5.5 The Sole Arbitrator is also satisfied that the Respondent is using the option on the disputed domain name in bad faith because: (i) the Respondent continues to hold the option so as to be in a position to take advantage of the commercial reputation of the Claimant's service mark (see Aventis Pharma SA., Aventis Pharma Deutschland GmbH v. Jonathan Valicenti, WIPO Case No. D2005-0037) and (ii) it is not possible to conceive of any plausible actual or contemplated use of the disputed domain name by the Respondent that would not in all likelihood amount to be bad faith use within the meaning of the Policy because it would involve the intentional deception of Internet users (see Ladbroke Group PLC v. Sonoma International LDC WIPO Case No. D2002-0131).

3.5.6 For these reasons, the Panel finds that the Respondent has registered and is using the option in bad faith.

3.6 Relief:

3.6.1. As all three elements of the UDRP are established, the Sole Arbitrator now considers the relief to which the Claimant is entitled.

3.6.2. The Claimant seeks the transfer of the disputed domain name. Article 36 of the Expedited Rules provides for remedies of the cancellation or the transfer of the domain name registration. These remedies are also the remedies provided for in Paragraph 4(i) of the UDRP. Accordingly, the Claimant is entitled to an order of transfer of the option over the disputed domain name.

3.6.3. The Sole Arbitrator notes that the Option Regulations does not specifically provide for the transfer of an option; rather Clause 15 of the Option Regulations provides for the termination of an option when a competent court or arbitral tribunal declares that the option violates the rights of a third party. As ancillary relief, the Claimant is also entitled to this declaration.

4. DECISION

4.1 Based on the foregoing considerations and reasons, the Sole Arbitrator issues his Final Award in Madrid, Spain, on April 18, 2011 holding as follows:

4.1.1 The option registered by the Respondent over the disputed domain name <elitemodel.pl> infringes the rights of the Claimant;

4.1.2 The option over the disputed domain name <elitemodel.pl> is to be transferred to the Claimant.

5. COSTS

5.1 The Claimant seeks the costs of the arbitration pursuant to Article 56 of the Expedited Rules. The Arbitral Tribunal fixes the costs of the arbitration at One Thousand Five Hundred Euros (EUR 1,500.00).

5.2. The Claimant has been successful in this arbitration. Further, the Respondent not only registered the disputed domain name in bad faith but also insisted during the proceeding that it had no use for the option and would transfer it to the Claimant and then did not reply when the Claimant sought to settle the proceedings on this basis. Accordingly, the Respondent's bad faith registration and use of the option is compounded by procedural bad faith during this proceeding. Accordingly, pursuant to Articles 56 of the Expedited Rules, it is ordered that Respondent shall pay the Complainant the costs of this arbitration in the amount of EUR 1,500.00.

5.3. The Claimant also seeks to recover its reasonable legal costs pursuant to Article 57. It has not quantified these costs. The UDRP establishes an abbreviated proceeding to resolve domain name disputes without the costs of normal arbitration of litigation proceedings. It is true that Article 57 of the Expedited Rules enable the Tribunal to award a party's reasonable expenses in the presentation of its case, but in the circumstances of the present case, where there has been no hearing, witness or travel expenses, the Sole Arbitrator considers an order for costs or a party's expenses not to be justified.

6. COMMUNICATION OF THE AWARD

6.1 This Award is signed in four (4) originals and is to be communicated by the WIPO Center as follows:

6.1.1 one original to Claimant, addressed to Claimant;

6.1.2 one original to Respondent, addressed to Respondent;

6.1.3 one original to be retained by the WIPO Center; and

6.1.4 one original retained by the Sole Arbitrator.

David J.A. Cairns
Sole Arbitrator

Madrid, Spain

Dated: April 18, 2011