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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Nilfisk-Advance A/S v. CLD and Mark & Marie Claire Morton
Case No. D2000-1297
1. The Parties
The Complainant is Nilfisk-Advance A/S, Sognevej 25, DK-2605 Brøndby, Denmark, represented by Charlotte Munck, NKT Research A/S, Brøndby, Denmark ("Complainant").
The Respondents are 1) CLD, Hamus, Chingola, Mufulira 5, Zambia, and 2) Mark and Marie Claire Morton, 51 Ranelagh Road, Dublin 6, Ireland ("Respondents").
2. The Domain Name and Registrar
The dispute concerns the domain name <nilfiskonline.com>.
The Registrar is Network Solutions, Inc., Virginia, USA.
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received the Complainant’s Complaint in electronic form on October 2, 2000 and in hard copy on October 6, 2000.
Complainant made the required payment to the Center.
On October 17, 2000, the Center sent the Complainant a Complaint Deficiency Notification, as the Registrar was not properly identified in the Complaint. The Center received an amended Complaint on October 17, 2000 (in electronic form) and October 23 (in hard copy), identifying the Registrar as Network Solutions, Inc.
On October 26, 2000, the Center transmitted via e-mail to the Registrar a request for registrar verification in connection with this case. On October 29, 2000, the Registrar transmitted via e-mail to the Center, the Registrar’s Verification Response, confirming that (1) Network Solutions is the Registrar of the Domain Name, (2) CLD (the First Respondent) is the registrant, (3) Mr. and Ms. Morton (the Second Respondents) are the Administrative and Billing Contact, with Domainsarefree.com as the Technical and Zone Contact, (4) the Registrar’s 5.0 Service Agreement is in effect with respect to the Domain Name, and (5) the Domain Name is in "Active" status.
On October 31, 2000, the Center transmitted via e-mail to the Complainant a request for a Second Amendment of Complaint, regarding clarification on the mutual jurisdiction. On November 2, 2000, the Center received in electronic form (and on November 6, 2000 in hardcopy), the said clarification from the Complainant.
The Center verified on November 15, 2000 that the complaint (after the above amendments) was filed in accordance with the requirements of the ICANN Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules"), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("the Supplemental Rules").
The formal date of the commencement of this administrative proceeding is November 15, 2000.
On November 15, 2000, the Center transmitted Notification of Complaint and Commencement of Administrative Proceeding, together with a copy of the Complaint, to the Respondents via e-mail and via post/courier to the address identified in the Registrar verification response. The Center advised that (1) the Respondent’s Response was due by December 4, 2000, (2) in the event of default the Center would still appoint a Panel to review the facts of the dispute and to decide the case, (3) the Panel may draw such inferences from the Respondent’s default as it considers appropriate, (4) the Complainant had elected for the matter to be decided by a single panelist.
As the Notification of Complaint was also sent to the Technical and Zone Contact for the Domain Name, Domainsarefree.com ("DAF"), the Center received on November 24, 2000 an e-mail from a representative of DAF, explaining that DAF is not a registrar, nor a part in the case.
The Respondents did not submit a timely Response. Accordingly, the Center sent to the Respondent a Notification of Respondent Default on December 5, 2000.
On December 8, 2000, in view of the Complainant’s designation of a single panelist the Center invited Mr. P-E Petter Rindforth to serve as a panelist.
Having received Mr. Rindforth’s Statement of Acceptance and Declaration of Impartiality and Independence, the Center, on December 13, 2000, transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Rindforth was formally appointed as the sole Panelist. The Projected Decision Date was December 27, 2000. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.
The Administrative Panel shall issue its Decision based on the Complaint (including amendments), the Policy, the Rules, the Supplemental Rules, and without the benefit of any Response from the Respondents. The case before the Panel was conducted in the English language.
4. Factual Background
The Complainant is the owner of the trademark NILFISK (for vacuum cleaners and other cleaning machines) in more than 47 countries. A list of the trademark registrations and copies of the Registration Certificates have been submitted as Annex 2 of the Complaint.
Some of the registrations are in the name of the Complainant’s predecessor company Aktieselskabet Fisker & Nielsen, others in the name of the company Nilfisk A/S, and a few are registered under the current company name Nilfisk-Advance A/S.
The Complainant also claims to be the owner of the trademark NILFISK ADVANCE in a great number of countries, as well as the holder of about 60 domain names, all of which include the trademark NILFISK (some are listed in Annex 3 of the Complaint).
On September 8, 2000, the Complainant received an e-mail from a Mr. David Higgins of GreatDomains.com, with an offer to sell the Domain Name to the Complainant for a sum of Ј950. Following a question from the representative of the Complainant, Mr. Higgins informed the Complainant’s representative by e-mail dated September 13, 2000, that his business is "selling domain names for clients around the world" (Annex 4 and 5 of the Complaint).
As no Response has been filed, there is no detailed information provided about the Respondents business activities, apart from the fact that the Domain Name <nilfiskonline.com> was registered on September 8, 2000 in the name of the First Respondent.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to the trademark NILFISK. The designation NILFISK is a unique combination of the surnames of the founders of Nilfisk-Advance A/S, i.e. Mr. Nielsen and Mr. Fisker, and the trademark is almost 100 years old.
There are no relations between the Complainant and the Respondents, nor are the Respondents licensees of Complainant, or have otherwise obtained an authorization to use or register the Complainant’s name.
The Complainant further contends that the Respondents have no rights or legitimate interests in respect of the Domain Name, and that the Domain Name was obtained only for the purpose of selling it, i.e. in bad faith.
The Respondents have not contested the Complainant’s allegations.
6. Discussion and Findings
A. Second Respondent – Morton
The Complainant has stated that CLD (Hamus) as well as Mark Morton and Marie Claire Morton are Respondents in this case.
According to Paragraph 1 ("Definitions") of the Rules, the term "Respondent" means "the holder of a domain name registration against which a complaint is initiated".
The Registrar has verified CLD as the sole and current holder of the Domain Name, whereas Mr. and Ms. Morton are verified as the Administrative and Billing Contacts.
Mr. and Ms. Morton are therefore not the holders of the Domain Name, and they are not required to submit to a mandatory administrative proceeding. The Panel therefore concludes that it is not competent to try a dispute between the Complainant and the Second Respondent regarding the Domain Name.
What is hereinafter referred to as "the Respondent" will therefore only regard the "First Respondent", CLD.
B. (First) Respondent – CLD
According to Paragraph 4(a) of the Policy, the Complainant must prove each of the following:
(i) that the Respondent’s Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant claims to be the owner of the trademark NILFISK in many countries, and has submitted copies of the Certificates of Registration for these registrations (Annex 2 of the Complaint). Only a few of the registrations are officially recorded in the present name of the Complainant – Nilfisk-Advance A/S. The Complainant states that the other company names shown on the Certificates, A/S Fisker & Nielsen and Nilfisk A/S, are prior versions of the same company name. The Complainant has not provided any further evidence to prove the above, however the Panel concludes – based on information regarding the address of the trademark owner, etc., obtained from the said Certificates, that the three company names relate to the same business/company. The Panel therefore concludes that the Complainant is the owner of the trademark NILFISK in all the countries claimed.
The trademark NILFISK is the first and dominant part of the Domain Name <nilfiskonline.com> and the meaning of the "-online" part of the Domain Name is commonly used to state that the goods/services of a certain company or trademark are available on the Internet. The Panel therefore concludes that the Domain Name is indeed confusingly similar to the trademark of the Complainant.
The Complainant contends that the Respondent is not an authorized agent or licensee of the Complainant’s trademark, and that the Respondent has not otherwise obtained an authorization to use the name. In lack of any Response from the Respondent, or any other information indicating the contrary, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the Domain Name.
In accordance with the Policy, the Complainant must also prove that the Domain Name has been registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets out certain circumstances which, if found by the Panel to be present, shall be evidence of the registration and use of the Domain Name in bad faith. In particular the Complainant expressly relies upon paragraph 4(b)(i) to the effect that there are circumstances indicating that the Respondent has registered or acquired the Domain Name "primarily for the purpose of selling, renting, or otherwise transferring" the Domain Name to the Complainant / trademark owner, "for a valuable consideration in excess of (the Respondent’s) out-of-pocket costs directly related to the domain name".
The Respondent is "CLD", which seems to be a business name of an unidentifiable entity. The address of the Respondent also contains the word "Hamus" which may, or may not, be a personal name of the owner of CLD. In any case, as can be seen from the information submitted to the Panel by the Center, it has not been possible to reach any company or person by courier services at the address indicated by the Registrar as the Respondent’s. The Panel therefore concludes that the Respondent has taken active steps to conceal his true identity, indicating therewith that the Domain Name has been registered in bad faith.
The Panel also notices that the Domain Name was actively offered for sale to the Complainant the same day it was registered. Further, the claimed price for the Domain Name was Ј950, which is clearly a valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the Domain Name.
The Panel therefore concludes that the Respondent has registered and is using the Domain Name in bad faith.
In light of the foregoing, the Panel concludes (a) that the Domain Name <nilfiskonline.com> is confusingly similar to the Complainant’s registered trademark NILFISK, (b) that the Respondent (CLD) has no rights or legitimate interest in the Domain Name, and (c) that the Respondent (CLD) has registered and used the Domain Name in bad faith.
Therefore, pursuant to paragraphs 4 of the Policy and 15 of the Rules, the Panel orders that the Domain Name "nilfiskonline.com" be transferred to the Complainant Nilfisk-Advance A/S.
This Panel’s decision concerns CLD as the registrant, it does not concern any other respondents’ name in the complaint.
P-E Petter Rindforth
Dated: December 27, 2000