Gelato, the Italian word for ice cream, is commonly used in English for ice cream made in an Italian style.
An Australian producer of gelato acquired a trademark for GELATORIA in 2003, and filed a UDRP at the WIPO against the owners of Gelatoria.com.
Registered in 2012, the domain became the center of the dispute after it apparently changed hands in 2015.
Cantarella Bros Pty Limited of Silverwater, New South Wales, Australia, is the Complainant, and for some reason, a portion of the UDRP filing is addressing the Australian matching domain, Gelatoria.com.au that sells fashion clothes.
According to the Complainant:
In a cease-and-desist letter issued by the Complainant to Mr. Karanovic at both the Respondent corporation’s address and the address of Hosting etc. Pty Limited dated November 21, 2016, the Complainant notes that its Systems and Network Administrator, a Mr. Gaffey, contacted the Respondent on or about November 19, 2016 and spoke to Mr. Buac regarding the disputed domain name.
The Complainant goes on to state that during this conversation, Mr. Buac said that he would be prepared to transfer the disputed domain name in return for the provision of a Gelatoria gelato machine. The Complainant avers that the recommended retail price of such a machine can range “from $25,200 to $47,500”, although it is not clear to which currency these figures refer.
The Panel assumes either AUD or USD is most likely as being the most relevant currencies to the original conversation. The Complainant notes that it has not received a response to its said cease-and-desist letter.
It’s an interesting proposition, after all, everyone loves gelato, and the exchange sounds fair.
Except, that the Complainant found nothing funny in it and filed a UDRP to get the domain instead.
Andrew D. S. Lothian, sole panelist at the WIPO, stated the following:
“First, the Respondent’s choice of a gelato machine as consideration for the transfer of the disputed domain name is of significance. To the Panel, that proposal is too specific and targeted to be above suspicion. It refers to a product which the Complainant manufactures and supplies under a mark identical to the second level of the disputed domain name. In the absence of evidence to the contrary, the Panel considers that this indicates on the balance of probabilities the Respondent’s prior knowledge of, and intent to target, the Complainant.
Secondly, it is significant that the product chosen by the Respondent has a substantial value. The unchallenged statement from the Complainant as to the range of prices applicable to its Gelatoria gelato machines places the amount of the proposed valuable consideration as far in excess of the Respondent’s likely out of pocket costs directly related to the disputed domain name.
Finally, it is of significance that despite the Complainant having twice set out its account of the interaction between the Parties’ representatives, both in the original cease-and-desist letter of November 21, 2016 and in the present Complaint, the Respondent has chosen to remain silent and has not attempted to challenge such account, to provide any explanation or to place an alternative construction upon the circumstances described by the Complainant.”
For these reasons, the domain Gelatoria.com was ordered to be transferred to the Complainant – with no gelato machine in exchange, or even a spoonful of gelato for that matter. 🙁
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