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Old 3rd August 2012, 02:58 AM
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Talking Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge By The Owner of Cabanias.com





A three member UDRP panel just ruled in favor of the domain holder of the IDN domain name which means CABAÑAS.COM


The Complainant was Marco Rafael Sanfilippo of Buenos Aires, the owner of the domain name cabanias.com and the owner of a trademark for the term CABAÑAS in several countries.

The domain holder is Estudio Indigo of Buenos Aires, who was represented by Zac Muscovitch of The Muscovitch Law Firm, Canada.

The UDRP involved a IDN which officially is listed as xn--cabaas-zwa.com, but which is the generic word CABAÑAS.COM with the accent mark.

Here are the relevant facts and finding by the three member panel

“Through the “www.cabanias.com” website, Complainant operates a portal where cabañas (Spanish for huts or cottages), apartments and bungalows in Argentina, Uruguay, Brazil, Chile, etc., are offered for temporary rent.”

“Complainant owns the following trademark registrations with INPI, the Argentine trademark office:

“CABAÑAS.COM WWW.CABANIAS.COM, mixed mark, Reg. No. 2093959, Reg. date June 29, 2006, filed on December 1, 2004, covering all services of International Class 35.

“CABAÑAS.COM WWW.CABAÑAS.COM, mixed mark, Reg. No. 2266605, Reg. date January 14, 2009, filed on December 27, 2007, covering all services of International Class 35.

“According to the corresponding WhoIs database, the record for the <xn--cabaas-zwa.com> disputed domain name was created on August 29, 2005. <xn--cabaas-zwa.com> is the internationalized domain name (IDN) equivalent to <cabañas.com>. (Panel emphasis).”

“Respondent operates the “www.xn--cabaas-zwa.com” website, to which the disputed domain name resolves, offering cabañas for rent and other accommodation in different tourist places in Argentina, Brazil, Chile and Uruguay.”

“Because Complainant and Respondent are offering the same or similar services in the same market, they compete with each other.”

“Respondent is using the disputed domain name in a corresponding website where cabañas are being offered for temporary rent in Argentina, Uruguay, Chile and Brazil. ”

“Respondent has shown copies of communications both internal and with clients that he has been advertising the rental of cabañas in association with the disputed domain name on its website for several months between January 29, 2010 and September 3, 2010, that is before receiving Complainant’s cease and desist letter through which he was put on notice of the present dispute. ”

“The Panel believes this is evidence of a bona fide offering of services pursuant to Policy, paragraph 4(c)(i), and thus, of rights or legitimate interests in the disputed domain name.”

“Clearly, Respondent’s use of the cabañas term in its descriptive or generic sense is not illegitimate. ”

“Cabañas is a common designation for huts or cottages in Spanish, the language used in the website into which the disputed domain name resolves. ”

“In fact, cabañas is so obvious a term for such offering that it is used both by Respondent and Complainant in their websites for competing commercial purposes and approximately in the same manner. ”

“Because offering goods or services by using the corresponding descriptive or generic term is a legitimate use of the term, the Panel concludes that Complainant has failed to prove the second element of the Policy.”

“Since Complainant failed to establish Respondent’s lack of rights and legitimate interests in the disputed domain name, the Panel need not deal with the bad faith element.”

The panel however denied the domain holders request for a finding of reserve domain name hijacking (RDNH):

“Complainant may plausibly have overestimated the strength of its case after Respondent replied to Complainant’s cease and desist letter by announcing that he would be taking down the content of the website at the disputed domain name, and asked Complainant not to institute any lawsuit against him, even if the Panel does not consider that Respondent’s reply to Complainant’s cease and desist letter was a recognition of Complainant’s rights. ”

“Accordingly, the Panel does not believe that Complainant acted in bad faith in an attempt of reverse domain name hijacking when he brought the Complaint against Respondent.”




LINK: http://www.thedomains.com/2012/08/02...-cabanias-com/
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Old 3rd August 2012, 06:34 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

An important decision, nice.
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Old 3rd August 2012, 07:04 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

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An important decision, nice.
This may make the penny drop in certain quarters.
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Old 3rd August 2012, 07:42 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

cabanias = crappy typo
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Old 3rd August 2012, 07:49 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

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An important decision, nice.
Yes, especially when the Argentine TM office gave the guy a TM on a domain name owned by someone else!
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Old 3rd August 2012, 08:26 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

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Yes, especially when the Argentine TM office gave the guy a TM on a domain name owned by someone else!
Yes, but TMs are generally accepted unless opposed, but only valid until challenged. Registeration does not prove the right of anything, it simply puts down a marker.
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Old 3rd August 2012, 09:38 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

In theory, a trademark on something as generic as Cabañas.Com or simply Cabañas for that matter advertising the same, should never have been granted in the first place. That would be in a perfect world...

A little backbone and a crafted argument from a professional, (Well done Señor Muscovitch) and that trademark is effectively null and void. (as it should have been all along)

A marker is an apt description:

The Single-Letter Domain Trademark Game.

Last edited by Clotho; 3rd August 2012 at 09:43 AM..
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Old 3rd August 2012, 10:31 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

I thought cabañas = IDN cannabis.
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Old 3rd August 2012, 11:12 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

Quote:
Originally Posted by Ryu View Post
I thought cabañas = IDN cannabis.
https://www.google.ca/search?q=caba%...IOL-iwKa4IDIDw

Cabins.

cab·in   [kab-in] Show IPA noun
1. a small house or cottage, usually of simple design and construction: He was born in a cabin built of rough logs.
2. an enclosed space for more or less temporary occupancy, as the living quarters in a trailer or the passenger space in a cable car.
3. the enclosed space for the pilot, cargo, or especially passengers in an air or space vehicle.
4. an apartment or room in a ship, as for passengers.
5. cabin class.
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Old 3rd August 2012, 11:44 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

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Originally Posted by Ryu View Post
I thought cabañas = IDN cannabis.
sar·casm/ˈsärˌkazəm/
Noun:
The use of irony to mock or convey contempt.
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Old 3rd August 2012, 11:48 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

Perhaps it was all, a pipe dream.
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Old 3rd August 2012, 11:54 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

It use to belong to Dabsi
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Old 3rd August 2012, 12:05 PM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

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Originally Posted by mulligan View Post
It used to belong to Dabsi
Truly this is the best non sequitur I have seen in ages.

I am much more interested in knowing who had the backbone and wisdom to defend their position in the face of tyranny and also... Who had the wisdom to choose their defender.

Apparently we can rule out the anadrome known as dabsi

Last edited by Clotho; 3rd August 2012 at 12:13 PM..
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Old 3rd August 2012, 01:24 PM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

Quote:
Originally Posted by Clotho View Post
A little backbone and a crafted argument from a professional, (Well done Señor Muscovitch) and that trademark is effectively null and void. (as it should have been all along)
good point. The Complainant went on a risky road by starting litigation.
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Old 3rd August 2012, 01:28 PM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

Certainly Zak is proving to be the man.
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Old 3rd August 2012, 01:30 PM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

it's a hollow victory though... having to pay to defend yourself with no come back on the legal fees, and no RDNH (which incidentally seems to be default decision these days) finding
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Old 3rd August 2012, 01:55 PM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

Damn, but all of you nailed it didn't you.

Yes, is the the answer but I would hardly call it hollow.

I know you understand what is at stake. I think I might know what that is worth to you.

Cheap at twice the price of this.

Let us hope we can do it again. Even at triple the cost.

When you KNOW you are right. and you are called upon.

Will you capitulate? or will you do your best?

If all else fails, will you at least rally the troops? ie. ourselves?

Last edited by Clotho; 3rd August 2012 at 02:11 PM..
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Old 3rd August 2012, 01:59 PM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

Quote:
Originally Posted by Clotho View Post
Yes is the the answer but I would hardly call it hollow.

I know you understand what is at stake. I think I might know what that is worth to you.

Cheap at twice the price of this.

Let us hope we can do it again. Even at triple the cost.
if this was any other process except UDRP, then I'd agree with you, setting precedent will be priceless.

but the problem is, UDRP doesn't seem to recognise precedent, as most of the decisions made don't follow any predictable patterns - they have been continually critised for such, and often referred to as a coin-toss decision.

bottom line, sure it's good news (for the individual), but I'm not sure how much good it will do future cases
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Old 3rd August 2012, 02:31 PM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

It sets a good example and it can and will be used as reference.

Bottom line is you must be prepared to fight

That starts with paying for the 3 person jury.

Are the examples that don't defend or even respond ever used as precedent?

It has long been the mandate of this forum to not be that person. We don't tolerate obvious trademark infringers do we? Selling the property of others, simply isn't acceptable.

If you are prepared to accept the upside of this investment than you must be prepared to make that upside real and substantial.

Despite that we are certain, we stand upon the rock, there are those around us that stand upon the sand and are prepared to joust.
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Old 4th August 2012, 12:46 AM
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Re: Domain Holder of The IDN, Cabañas.Com Beats Back A UDRP Challenge

One of the best Spanish IDN's out there.
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