WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Campofrio Food Group S.A. Unipersonal (S.A.U) v. Javier Garcia Quintas

Case No. D2020-0427

1. The Parties

The Complainant is Campofrio Food Group S.A. Unipersonal (S.A.U), Spain, represented by PONS IP, Spain.

The Respondent is Javier Garcia Quintas, Spain, self-represented.

2. The Domain Name and Registrar

The disputed domain name <campofrio.com> is registered with Register.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 24, 2020. On February 24, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 24, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 27, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on February 28, 2020.

The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 28, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 19, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 20, 2020.

The Center appointed Reyes Campello Estebaranz as the sole panelist in this matter on March 24, 2020. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

On March 28, 2020, the Respondent requested an extension of the deadline for submitting the response. On April 1, 2020, the Center granted an exceptional deadline of five calendar days from the date of its communication to submit the response and an additional deadline for the Complainant until April 8, 2020, to submit any comments it may have. On April 7, 2020, the Respondent submitted the Response. On April 11, 2020, the Complainant sent an email communication to the Center informing about the change of its representative.

4. Factual Background

The Complainant is a Spanish company founded in 1944 under a different company name, owned since 2013 by the Mexican food group Alfa through its subsidiary Sigma Alimentos, which operates internationally in the food sector, being mainly present in Europe and America. It has over 2,800 employees and produces a wide variety of food products, including processed meat charcuterie, sausages, dray and cooked ham, poultry, hot dogs, pizzas, pate, meal components, sandwich spreads, ready meals, fresh and semi-fresh meat products. The Complainant operates under the trademark CAMPOFRIO that coincides with the main element of its company name, using this mark in all its products, alone or in combination with other trademarks that identify its different product lines, like PAVOFRIO, CUIDA-T+, VEGALIA and SACK’IN. The Panel has consulted the Complainant’s website under the general powers of the Panel articulated inter alia in paragraphs 10 and 12 of the Rules.

The Complainant holds an extensive trademark portfolio for the mark CAMPOFRIO in many jurisdictions worldwide, alone or in combination with other terms or figurative elements, of which the following are sufficiently representative for the present proceeding:

Spanish Trademark No. 1808466 CAMPOFRIO, word mark, registered November 4, 1994, in class 29;

European Union Trade Mark No. 000015099 CAMPOFRIO, word mark, registered October 28, 1998, in class 29;

International Trademark No. 701891 CAMPOFRIO, word mark, registered October 21, 1998, in class 29.

The Complainant and its group further owns various domain names comprising its trademark CAMPOFRIO, alone or in combination with other terms, under various generic Top-Level Domains (“gTLDs”) and country code Top-Level Domains (“ccTLDs”), which are linked to its group corporate websites in connection with its products and services. Among others, <campopfrio.es> was registered on August the 27, 1996, <campofrio.co.uk> was registered on September 17, 2018, <campofriofg.com> was registered on January 16, 2018, <campofriofg.es> was registered on December 11, 2008, <campofriofg.net> was registered on January 22, 2013, and <campofriofg.pt> was registered on February 21, 2020.

The disputed domain name was registered on November 11, 1999. At the date of this decision, the disputed domain name is linked to a website in Spanish language related to the town Campofrio, located in Huelva, Spain, which includes in its heading, at the top before the text content of the site, the words “Campofrio Huelva” in black capital letters. This website includes information about the history, economy and population of this Spanish location, as well as its most popular monuments, including its bullfighting area indicating that it is the oldest bullfighting arena in Spain. According to the Complainant’s allegations, the disputed domain name was inactive at the time of filing the Complaint.

5. Parties’ Contentions

A. Complainant

Key contentions of the Complaint may be summarized as follows:

Through its continuous use and extensive promotion in the main social media, Internet platforms, newspapers, radios and televisions, the Complainant and its trademark CAMPOFRIO have become well known. The Complainant provides a copy of a decision dated July 23, 2015 issued by the Spanish Patent and Trademark Office recognizing the notorious character of the trademark CAMPOFRIO, as well as various evidences of the promotion of its trademark in the social media and various reports on the Complainant’s economic figures in 2015-2018.

The disputed domain name is identical to the mark CAMPOFRIO, leading to a risk of confusion or implied affiliation with the Complainant and its trademark.

The Respondent has no rights or legitimate interests in the disputed domain name. The disputed domain name was registered after the registration of most of the Complainant’s trademarks, infringing its trademark rights. The Respondent is not known by the term “campofrio”, not having registered any trademark including or consisting of this term, and has no relationship with the Complainant, not being its licensee or being otherwise authorized to registered and/or use the Complainant’s trademark in the disputed domain name. The disputed domain is currently inactive not being used in connection to any bona fide offering of goods and/or services, preventing the Complainant from reflecting its trademark in an identical domain name.

The disputed domain name was registered and is being used in bad faith. Due to the notorious and well-known character of the trademark CAMPOFRIO, the Respondent cannot reasonably claim that he was not aware of this mark when registering the disputed domain name. According to the information included in the WhoIs record disclosed by the Registrar, the Respondent is located in Gran Canaria, Spain, country where the Complainant’s headquarters are located and the Complainant’s trademarks are especially well-known. The Respondent was or should have been aware of the Complainant and its trademark, registering the disputed domain name with the intention to prevent the Complainant from registering the disputed domain name and to create a likelihood of confusion with the Complainant’s trademarks. The Respondent, under various first names, but with the same surnames and contact information included in the WhoIs record of the disputed domain name, has registered other domain names incorporating well-known trademarks, which have been transferred to their respective trademark owners though proceedings under the Policy, evidencing that the Respondent is a cybersquatter. The Respondent’s real business is acquiring domain names incorporating third parties’ trademarks to sell them and/or perhaps use them in bad faith with the intention to profit from their goodwill and reputation.

The Complainant has cited various previous decisions that it considers to be supportive of its position.

The Complainant requests the transfer of the disputed domain name.

B. Respondent

Key contentions of the Response may be summarized as follows:

The term “campofrio” is the name of a location in Huelva, Spain, important in Spanish and Andalusia’s history and cultural heritage for having one of the oldest bullfighting arenas in Spain and in the world, built in 1716.

Using a geographic term does not constitute confusing similarity with the Complainant of its trademarks. There is no evidence of any use of the disputed domain name that may lead to confusion or dilution of the Complainant’s trademark CAMPOFRIO.

The Respondent is making a legitimate use of the disputed domain name for over 20 years. The disputed domain name was registered and has been used (since July 4, 2000) in order to provide information about the abovementioned Spanish location. The use of the disputed domain name is accessible through the Internet archive WayBackMachine. The Respondent provides a copy of the website linked to the disputed domain name in 2000, as well as evidence related to the history of Campofrio’s bullfighting arena. The Respondent alleges having a legitimate interest in Spanish geographical domain names, holding other various geographic domain names, including <orense.com>, <ferrol.com>, <baqueiraberet.com>, <palamos.com>, <galicia.org>, <mogan.com>, <telde.com>, <lugo.net>, <pontevedra.net>, <caceres.net>, <badajoz.net> and <santander.net>.

The Complainant has not proved the registration or use of the disputed domain name in bad faith. The Respondent acquired and has used the disputed domain name in good faith for the last 20 years, as a descriptive term in a manner that does not take any advantage of the Complainant’s trademark, only in connection to a website providing information about the Spanish location in Huelva Campofrio. It is a fair use with no potential confusion or association, as the Respondent and the Complainant are not competitors.

Furthermore, the use of some of the Complainant’s domain names alleged in the Complaint is confusing. Some of these domain names, namely <campofriofg.com>, <campofriofg.es>, <campofriofg.net> and <campofriofg.pt>, redirect to the website of the Mexican company Sigma Alimentos referring to the trademark SIGMA ALIMENTOS, and the domain name <campofrio.co.uk> is inactive.

The Complaint is unfunded and should be dismiss.

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that, in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) [the respondent] has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has authority to decide the dispute.

Paragraph 15(a) of the Rules provides that “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. The Panel has taken into consideration all of the evidence, annexed material and submissions provided by the Parties, and has performed some limited independent research under the general powers of the Panel articulated inter alia in paragraphs 10 and 12 of the Policy. See section 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).

A. Identical or Confusingly Similar

The Complainant indisputably has rights in the registered trademark CAMPOFRIO. The disputed domain name incorporates this trademark in its entirety and the gTLD “.com” is a technical requirement, generally disregarded for the purpose of the analysis of the confusing similarity. See section 1.11, WIPO Overview 3.0. Accordingly, the Panel considers that the disputed domain name is identical to the Complainant’s mark, and the first element of the Policy under paragraph 4(a)(i) has been satisfied.

B. Rights or Legitimate Interests

Although the Complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, prior UDRP panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily if not exclusively within the knowledge of the Respondent. Thus, the consensus view is that paragraph 4(c) of the Policy shifts the burden production of rights or legitimate interests in the disputed domain name to the Respondent, once the Complainant has made a prima facie showing indicating the absence of such rights or legitimate interests.

The Complainant’s assertions and evidence effectively shift the burden to the Respondent of producing evidence of rights or legitimate interests in the disputed domain name, providing paragraph 4(c) of the Policy the circumstances, without limitation, that may establish rights or legitimate interests in the disputed domain name in order to rebut the Complainant’s prima facie case.

The Respondent has alleged that the disputed domain name corresponds to the name of a location in Huelva, Spain, being used, since 2000 (a year after the registration of the disputed domain name), in connection with this geographical term, linked to a website providing various information about the said town and its monuments.

The Panel has consulted the use of the disputed domain name in various moments of the past in the Internet archive WayBackMachine. The Panel notes that the disputed domain name has been linked to a website providing information about Campofrio town at least since February 5, 2001 until March 30, 2009, not finding any information of the use of the disputed domain name since this last date. The said website appears to have had a pure cultural informative purpose related to Campofrio town and its monuments, unrelated to the Complainant’s trademark and not including any link, advertisement or other promotional content for which its owner may have obtained any commercial gain. These circumstances may point to a fair use.

The Panel further notes that at the date of this decision the disputed domain name is linked to a different website with similar content but a different design. The current website linked to the disputed domain name provides information about Campofrio town, but, among other possible activities in this town, it mentions shopping in this area referring to various particular recommended shops, namely a craft shop and a food store for buying pork products and confectionary.

Panels have recognized that in order to find rights or legitimate interests in a domain name based on its dictionary meaning, the domain name should be genuinely used, or at least demonstrably intended for such use, in connection with the relied-upon dictionary meaning and not to trade off third-party trademark rights. See section 2.10.1 of the WIPO Overview 3.0.

The Complainant claimed that the disputed domain name was not being used. The Panel notes that, at the time of filing the Complaint, the disputed domain name was linked to a parked website including an offer for sale of the disputed domain name and what seemed to be various pay-per-click (“PPC”) links (according to a screen shot included in the Annex 1 of the Complaint). The Complainant has not provided any evidence on whether such links were related to the Complainant’s trademark or not. The Respondent has not provided any explanation or evidence regarding the period of time in which the disputed domain name was resolving to PPC links.

Further, the Respondent has alleged that he has legitimate interests in acquiring domain names incorporating terms that refer to various Spanish locations, providing some examples of other domain names owned by the Respondent. The Panel has analyzed the domain names indicated by the Respondent, noting that only some of them (four out of twelve) are linked to websites including some content related to the respective locations together with some unrelated promotional links to third parties websites. Most of the domain names cited by the Respondent (eight out of twelve), are linked to parked pages including offers for sale of the respective domain names and PPC links unrelated to the respective locations, namely <baqueiraberet.com> (registered on April 11, 2000), <palamos.com> (registered on December 21, 1999), <galicia.org> (registered on November 24, 1996), <mogan.com> (registered on April 15, 1998), <telde.com> (registered February 11, 1998), <caceres.net> (registered on November 24, 1996), <badajoz.net> (registered on November 24, 1996), and <santander.net> (registered on November 24, 1996). The Panel further notes the long period since the registration of these domain names, in all cases over 20 years, as well as the considerable number of cases with PPC advertising linked to the Respondent’s domain names, likely benefiting from this activity.

The use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users.

In the assessment of this case, the Panel needs to consider, on the one hand, the nature of the disputed domain name, being identical to the Complainant’s trademark, which normally would carry a high risk of implied affiliation, but, on the other hand, Campofrio corresponds to the name of a town, and there has been a predominant use of the disputed domain name over the years in relation to the name of the town (according to the available public records of screen captures of the disputed domain name). See sections 2.5.1, 2.9, and 2.10.1 of the WIPO Overview 3.0.

The Respondent has not provided any evidence related to his acquisition of the disputed domain name and the date in which it took place. The Respondent has not provided any explanation or evidence related to the continuous use of the disputed domain name, not being this Panel able to find any evidence regarding its use since March 30, 2009 (last capture included in the Internet archive consulted). Furthermore, the Respondent has not provided any explanation or evidence related to the period of time in which the disputed domain name was linked to a parked page including an offer for its sale and PPC links. However, the Complainant has not provided any evidence on whether the PPC links were related to the Complainant’s trademark or if such PPC links compete with or capitalize on the reputation and goodwill of the Complainant’s mark or otherwise mislead Internet users.

In view of the Panel’s finding under the third element, the Panel considers that it is not necessary to conclude regarding the second element of the Policy under paragraph 4(a)(ii).

C. Registered and Used in Bad Faith

The Policy, paragraph 4(a)(iii), requires that the Complainant establishes that the disputed domain name “has been registered and is being used in bad faith”, and the Policy’s non-exhaustive list of bad faith circumstances are included in paragraph 4(b).

The Complainant has alleged that the Respondent registered the disputed domain name in order to prevent its registration by the Complainant, showing a pattern of conduct in registering domain names incorporating well-known trademarks with the intention to sell them or use them in bad faith profiting from their reputation. The Complainant has alleged that the Respondent, under various names but with the same contact details, registered various domain names that were decided under the Policy, citing some examples with no evidence related to these cases.

The Panel has corroborated that several cases decided under the Policy refer to the Respondent or to persons with the same surnames that may be brothers of the Respondent or otherwise related to him, sharing address in the same location (Gran Canaria, Spain). All these cases refer to domain names incorporating notorious trademarks being transferred to their respective trademark owners, and all the decisions founded by the Panel are dated between 2000 and 2008.

It is to be noted that the Respondent has alleged being the owner of the disputed domain name since its registration and the Complainant has not contested or submitted any comments related to this circumstance. No evidence included in the file determines any transfer and acquisition by the Respondent of the disputed domain name after the date of its registration. Therefore, the Panel considers as relevant date in order to analyze the third element of the Policy the date of the registration of the disputed domain name in 1999.

The Panel notes the extensive presence of the Complainant and its trademark CAMPOFRIO, the current extensive presence of this mark over the Internet, as well as its current extensive use and promotion in Spain, where the Respondent is located according to the WhoIs record and the information provided in the Response. The Panel further notes that the Complainant’s trademark has been considered notorious by the Spanish Patent and Trademark Office in a decision dated July 23, 2015, and that the Complainant’s financial reports for 2015 and subsequent years until 2018 show figures that may be considered important for its market sector in Spain. However, the Panel considers that these circumstances are not sufficient to determine whether the trademark CAMPOFRIO was notorious at the time of the registration of the disputed domain name in 1999, more than twenty years ago, or whether the Respondent likely knew about the existence of this mark at the time of the registration of the disputed domain name, or whether the Respondent chose to register the disputed domain name due to its value as related to the trademark CAMPOFRIO or due to its value as related to a geographical term. The Complainant has not provided sufficient evidence of the alleged reputation of its trademark CAMPOFRIO at the time of the registration of the disputed domain name as to conclude that the Respondent registered the disputed domain name with the Complainant’s trademark in mind.

Furthermore, the evidence related to the use of the disputed domain name since its registration shows that, at least since February 5, 2001 until March 30, 2009, the disputed domain name was used in connection to a website displaying information about Campofrio town. The said website appears to have had a pure informative nature and purpose, unrelated to the Complainant’s trademark, to its business or to any commercial gain.

The term “campofrio” is the name of a location in Huelva, Spain, and the use of the disputed domain name less than one year and a half after the date of its registration, which the Panel considers a reasonable time for preparing a website, appears to be in good faith. It was used in connection with the said Spanish location to provide information about it, linked to a website with no commercial content, unrelated to the Complainant, its trademark CAMPOFRIO or the Complainant’s business.

Therefore, the Panel considers that there is not sufficient evidence in the file to consider that the disputed domain name was registered in bad faith targeting the Complainant’s trademark in order to profit from its reputation.

The Complainant has claimed that the disputed domain name was not being used. The Panel notes that the disputed domain name was linked to a parked page including an offer for sale of the disputed domain name and PPC links. The Panel has further corroborated that most of the domain names incorporating geographical terms owned by the Respondent, are linked to parked pages including offers for sale and PPC links, and others are linked to websites containing certain content related to the respective locations as well as promotional content and links that presumably yields profits to the Respondent. However, the Panel cannot find sufficient evidence in the file in order to determine whether the disputed domain name was linked to a parked page only temporally in a short period (during for instance the preparation of a new website about the town of Campofrío), or for a longer period (as occurs with other Respondent’s domain names). The Panel is not able to determine whether the disputed domain name was (at least temporally) used in bad faith, with the intention to ride on the Complainant’s trademark current reputation.

It is important to remind the relatively limited scope of the Policy, which was conceived to solve cybersquatting scenarios where the disputed domain name is registered and is being used in bad faith targeting or to take advantage of a trademark and not all disputes related to domain names.

Accordingly, the Panel concludes that the Complainant has not met its burden of establishing the third element of the Policy. However, the Panel wishes to clarify that this decision should not been understood as an approval to the Respondent’s registration and use of the disputed domain name, and does not preclude the Complainant from going to a competent court.

7. Decision

For the foregoing reasons, the Complaint is denied.

Reyes Campello Estebaranz
Sole Panelist
Date: April 15, 2020