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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Grundfos A/S v Lokale

Case No D2000-1347

 

1. The Parties

Complainant is Grundfos A/S, Poul Due Jensens Veg 7, DK-8850 Bjerringsbro, Denmark. Its authorised representative in this case is Christian Kragelund Esq, Chas. Hude A/S, H.C. Andersens Boulevard 33, DK-1780, Copenhagen V, Denmark.

Respondent is "Lokale" Gorki Strasse 71, SZN, an 70-390, Poland.

 

2. The Domain Name and Registrar

The domain name at issue is grundfoss.com and the Registrar is Network Solutions, Inc, Herndon, Virginia, United States.

 

3. Procedural History

A Complaint was received by the World Intellectual Property Organization Arbitration and Mediation Center (the Center) in e-mail and hardcopy form on October 6 and 13, 2000, respectively. An amendment to the Complaint (concerning the identity of Respondent) was received by the Center in e-mail form on October 19, 2000 and in hardcopy form on October 20, 2000.

A Registrar Verification Response was received on October 16, 2000, by the Center. According to that Response

a) a copy of the Complaint had been received by the Registrar,

b) the domain name at issue, "grundfoss.com," is in fact registered with Network Solutions,

c) the domain name registrant is "Lokale (GRUNDFOSS-DOM) Gorki strasse 71, szn, an 70-390, PL",

d) Administrative Contact, Billing Contact is "Mozki, Maci (MMB498), lokale, Gorki strasse 71, szn, an 565, Poland,

e) Technical Contact, Zone Contact is DNS Administrator (DA6173-ORG) DNS@NAMESERVE.NET, NAMESERVER SYSTEMS, 3326 160th Ave SE Ste 400, Bellevue, WA 98008, United States,

f) Network Solutionsґ5.0 Service Agreement is in effect, and

g) The domain name registration grundfoss.com is in "Active" status.

Having verified that the Complaint satisfied the formal requirements under the Policy and the Rules, the Center issued, on October 20, 2000, a Notification of Complaint and Commencement of Administrative Proceeding. This notification was communicated to Respondent by Post/Courier (with enclosures), by facsimile (complaint without attachment) and e-mail (to the e-mail addresses indicated above for Respondent and for Technical Contact, Zone Contact). The Notification was also transmitted to Complainant, to the Registrar and to ICANN.

Having received no Response from Respondent, the Center issued, on November 9, 2000, a Notification of Respondent Default which was sent to Respondent by Post/Courier and to the e-mail addresses indicated above and also by e-mail to Complainant.

Having invited Mr. Henry Olsson to serve as a Sole Panelist in this case and having received, on November 20, 2000, Mr Olssonґs Statement of Acceptance and Declaration of Impartiality and Independence, the Center issued, on November 23, 2000, a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Olsson was formally appointed as Sole Panelist. The Projected Decision Date was fixed to December 6, 2000.

The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and the WIPO Supplemental Rules.

 

4. Factual Background

Complainant Grundfos A/S is a corporation organised in 1945 under the laws of Denmark. Its main activity is the production and development of different types of pumps and Complainant produces about 8 million pump units a year. It is represented by 58 companies in 41countries all over the world. Its turnover was in 1999 about 8,145 billion Danish Crowns and it employs more than 9 500 persons.

The trademark GRUNDFOS has been registered as a word mark for many years in, among others, international class 07 (covering pumps and accessories thereto) in, a great number of countries, Complainant has submitted a list of 159 such registrations. Thus the mark is registered also in, for instance, Denmark and Poland. The Polish trademark registration of "GRUNDFOS" has number 48475 and was effected in 1969 for classes 7, 9 and 11. Complainant has submitted a copy of the Polish registration certificate.

Complainant has also registered the domain names "GRUNDFOS.COM" and "GRUNDFOS.DK"

From the Verification Response follows that Network Solutionsґ5.0 Service Agreement applies to the registration to the effect that Respondent is required to submit to a mandatory administrative proceeding under the Uniform Domain Name Dispute Resolution Policy.

In the Complaint, Complainant agrees, in accordance with Paragraph 3(b)(xiii) of the Rules, to submit, only with respect to any challenge that may be made by Respondent to a decision by the Administrative Panel to transfer the domain name that is the subject of this Complaint, to the jurisdiction of the courts in Respondentґs address as shown for the registration of the domain name in the concerned Registrar’s Whois database at the time of the submission of the Complaint to the Center.

 

5. The Parties’ Contentions

A. Complainant

Complainant contends that the domain name at issue is quasi identical or confusingly similar to a trademark or service mark in which Complainant has rights, that Respondent has no rights or legitimate interests in respect of the domain name and that the domain name was registered and is being used in bad faith.

To support these contentions, Complainant first submits "that the mark GRUNDFOS is confusingly similar or quasi identical with the domain name GRUNDFOS.COM." (It is to be assumed that this contention refers to a similarity between the mark "GRUNDFOS" and the domain name "GRUNDFOSS…"). Furthermore, Complainant contends that, to its knowledge, Respondent has no legitimate rights in the mark GRUNDFOSS, nor has the domain name GRUNDFOSS.COM been taken into use. It is, according to Complainant, evident that the sole purpose for which Respondent has registered the domain name is to achieve an economic compensation from Complainant by selling the name. To prove this, Complainant has submitted a copy of a e-mail of February 21, 2000 stating, inter alia: " Hello I have domain name grundfoss.com (double s). Iґm receiving many e-mails and oferrs from clients and partners GRUNDFOS. You may buy this domain name with many emails addresses any@grundfoss.com. Example: Would like you to send me info on pumps for transferring clear water from sump to OHT located on the roof of second floor………" Then follow some sentences in Danish which do not seem to have anything to do with the domain name issue as such. The e-mail ends with "My address is pcwk@polbox.com ofert@grundfoss.com. Thanks and bye……." Then there is an attachment whose contents is not shown. According to Complainant, Respondent must have been aware of the business of Complainant at the time of the filing of the request for registration of the domain name grundfoss.com.

On the basis of these contentions Complainant requests the domain name at issue to be transferred to Complainant.

B. Respondent

Respondent - who has been communicated the Complaint and the notification of Respondent Default - has not submitted any Response and is in Default.

 

6. Discussions and Findings

Rule 15 of the Rules prescribes that the Panel shall decide a Complaint on the basis of the statements made and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.

In the case of a Default by a Party, Rule 14 of the Rules prescribe that if a Party, in the absence of exceptional circumstances, does not comply with a provision of or a requirement under these Rules, the Panel shall draw such inferences therefrom as it considers appropriate. In this case Respondent has not submitted any Response and has consequently not, despite the opportunity given, contested any of the contentions by Complainant. The Panel will therefore have to operate and consider the case on the basis of the factual circumstances contained in the Complaint and the documents available to support the contentions.

Applied to this case, Paragraph 4(a) of the Policy directs that Complainant must prove each of the following

a) that the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights,

b) that Respondent has no rights or legitimate interests in the domain name, and

c) that the domain name has been registered and is being used in bad faith.

In the following part of the decision the Panel discusses each of these elements.

a) Identity or Confusing Similarity

The domain name at issue is grundfoss.com

The domain name contains essential elements of the word mark "grundfos" The difference is that the domain name contains a double "s" and also the word "com." As noted in earlier panel decisions, the latter suffix is, at least in principle, meant to indicate that the domain name is intended to be commercial. As regards the double "s" in the domain name, as opposed to the single "s" in the trademark, this is, in the view of this Panel, not a feature that creates in any significant way a distinction from the trademark.

In view of these circumstances, the Panel concludes that in fact the domain name at issue is confusingly similar to Complainantґs trademark "GRUNDFOS."

b) Rights or Legitimate Interests

Complainant has not licensed or otherwise authorised Respondent to use Complainantґs trademark or to apply for any domain name incorporating the trademark, and there is no relationship between Respondent and Complainant in any sense relevant to the domain name at issue.

Furthermore, Respondent has failed to invoke any circumstances that could demonstrate, pursuant to Paragraph 4.c of the Policy, any rights or legitimate interests in the domain name at issue.

On the basis of these circumstances, the Panel considers that Complainant has sufficiently established that Respondent has no rights or legitimate interests in the domain name at issue.

c) Registration and Use in Bad Faith.

To show that bad faith exists, Complainant may present evidence that such bad faith exists in at least one of the situations mentioned in Paragraphs 4.b.(i) to(iv) of the Policy.

Complainant has contended that Respondent must have been aware of Complainantґs business in Poland at the time of the filing of the request for registration and that Respondent never has taken the domain name into use. Furthermore, Complainant invokes the fact that the domain name registration was effected on February 4, 2000, and that Complainant received an e-mail from Respondent on February 21, 2000 with the content quoted above. The Panel concludes that the e-mail contains an offer to Complainant to buy the domain name at issue. On the basis of these circumstances, Complainant contends that it is evident that the sole purpose for which Respondent has registered the domain name is to achieve an economic compensation by selling the domain name.

The circumstances invoked by Complainant can be relevant only with respect to Paragraph 4.b.(i) of the Policy according to which Complainant has to prove that Respondent "has registered.the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner or the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name".

The circumstances invoked by Complainant have not been contested by Respondent. They are not particularly illuminating with respect to which Respondentґs real intentions were as regards the registration of the domain name at issue. The Panel attaches, however, a particular importance to the fact that the e-mail of February 21, 2000, was sent only a few weeks after the record of the domain name at issue was created by Network Solutions, Inc. At the time of the registration Respondent must have been aware of Complainantґs business in Poland. The e-mail in question contained an offer to sell the domain name. Furthermore, Complainantґs contention that the domain name at issue has never been used in connection with any website has not been contested by Respondent. This failure to use the domain name in any context other than to offer it for sale to Complainant amounts, in the view of this Panel, to a use of the domain name as such in bad faith.

On the basis of these considerations, the Panel concludes that Complainant has sufficiently established that the domain name at issue was registered and is being used in bad faith.

 

7. Decision

On the basis of the foregoing considerations, the Administrative Panel concludes that the domain name grundfoss.com is confusingly similar to Complainantґs trademark "GRUNDFOS," that Respondent has no rights or legitimate interests in respect of the domain name and that Respondentґs domain name has been registered and is being used in bad faith.

Accordingly, pursuant to Paragraph 4.i of the Policy and in accordance with the request by Complainant, the Administrative Panel requires that the domain name grundfoss.com be transferred to Complainant.

 


 

Henry Olsson
Sole Panelist

Dated: November 27, 2000

 

Источник информации: https://internet-law.ru/intlaw/udrp/2000/d2000-1347.html

 

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