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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mr. Christophe Marx v. The Russian House and Mr. Alexander Mandl
1. The Parties
The complainant in this procedure is Mr. Christophe Marx, rue Driesbos 39, 1640 Rhode-Saint-Genese, Belgium.
The respondent N° 1 is The Russian House c/o Ms. Ilona Burik, 3707, Potters Place, Holland, PA 18966, U.S.A.
The respondent N° 2 is Mr. Alexander Mandl, 2017 Spruce street, Philadelphia, PA 10103, U.S.A.
2. The Domain Name and Registrar
The domain name in issue is :
The Registrar is Register.com.
3. Procedural History
The WIPO Arbitration and Mediation Center (the Center) received the complaint on August 22, 2000. The Center sent for Registrar verification on August 28, 2000. The Center received the Registrar verification response on August 30, 2000. The Center issued a Complaint Deficiency Notification on October 3, 2000. The corrected Complaint was received on October 10, 2000. The Center received respondents’ response on November 2, 2000. The panel fixed time limits for the complainant to translate footnotes that were filed in French into English and for the respondents to comment upon these. The translation and complainant’s answer to response were made on or before November 13, 2000. Comments were received from respondents within the time limit.
4. Factual Background
A. The Trademark
The complaint is based on the trademark MAISONS CLOTHES. The complainant is the owner of the following registered trademark :
Benelux trademark, N° 536956, MAISONS CLOTHES, registered in 1993.
He is allegedly the owner of an identical French trademark.
The complainant is also the owner of the web site maisonsclothes.be.
B. The Complaint
The grounds for the complaint are :
That the respondents’ registration of the domain name is a domain name grabbing action.
That the transfer of the domain name to the respondents is a bad faith action used by the first owner of the domain name, Mr. Corman, to escape the legal procedure pending against him before a Belgian tribunal.
That this transfer is a bad faith action also as it was done without serving notice to the complainant, who had beforehand requested the transfer of the domain name.
Furthermore, this transfer was done so as to allow the first owner, Mr. Corman, indirectly to keep the domain name as himself and the true holder of the domain name, Mr. Mandl, work for the same company, SA GPM, which is a competitor of the complainant.
C. The Respondents
In their response the respondents state :
That the complainant’s trademark has no effect in the U.S.A. and that the trademark is not famous as defined by federal trademark law.
That they have rights and legitimate interest in respect of the domain name as it refers to the word maisons (houses in English) and clothes and that both respondents are involved in the Russian Clothing House web portal project. The respondents have also done extensive preparation to use the domain name.
That the respondents have not made any bad faith use of the domain name. And that there is no intent misleadingly to divert customers as the domain name is used for different products, a different geographical location, and using different languages.
That the complainant is harassing the company SA GMP and is trying to build a case against SA GMP by any means.
5. Discussion and Findings
A. Identical or Confusingly Similar Domain Name
The domain name is identical to the complainant’s trademark.
B. Rights or Legitimate Interests of Respondent
The respondents claim that the complainant’s trademark has no effect in the USA and has a restricted geographical reach. The panel cannot agree with the respondents. First, the complainant’s trademark N° 536956 has an international reach as in addition to covering Belgium, the Netherlands and Luxemburg it also covers France according to Annex C, page 8. This area covers an important part of the European market. Second, geographical aspects are not relevant on the Internet as it is by nature worldwide. Any company can extend its potential commercial relations to a worldwide reach.
If respondents’ argumentation were to be followed it would negate the international aspect of the ICANN Rules and of the present procedure for adjudication and it would make it impossible for businesses that cannot invest the costs of two or more normal procedures before ordinary courts to have their trademarks respected internationally.
The respondents claim that they chose maisonsclothes.com, as it was a good mnemonic. It is so in French as those two words put together make for an easy pun. However it is not so in English, and the panel doubts that most English speakers might understand it.
The respondents claim that they have undergone extensive preparation in respect of the domain name maisonsclothes.com. The panel cannot accept such contentions as this site automatically transfers the user to another site.
C. Domain Name Registered and Used In Bad Faith
The respondent N° 2 Mr. Mandl has also registered the domain name triptyque.com. Triptyque is a company licensed to use the MAISONSCLOTHES trademark. It also belongs to complainant. The panel thereof considers that there is a pattern of registering domain names belonging to other companies. Such a pattern is generally regarded as evidence of bad faith. The panel will disregard the respondent’s claim that this domain name was registered by someone else against his will.
It is also an important fact that the respondents do not use the web site at maisonsclothes.com for anything other than transferring users to another site.
The panel considers also the fact that the domain name was assigned to Mr. Mandl by Mr. Corman apparently on or around April 22, 2000, i.e. just before the beginning of normal court proceedings in Belgium but after that the claimant’s counsel had sent to Mr. Corman’s counsel copy of the draft summons necessary to open the case. It is important to note that both Mr. Mandl and Mr. Corman have worked for the same company, SA GMP. This allows the company SA GMP indirectly to keep the site through Mr. Mandl. The panel sees it as a sign of bad faith.
The panel decides that the domain name is identical to the complainant’s trademark, that the respondents have no legitimate rights in respect of the domain name and that the domain name was registered and is being used in bad faith.
Accordingly, the panel requires that the registration of the domain name maisonsclothes.com be transferred to the complainant.
The panel also takes note that the respondents have accepted the transfer of the domain name tryptique.com to the complainant and that complainant has accepted such offer.
Dated : November 20, 2000