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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Interbrew S.A. v. Adanb
Case No. D2000-1365
1. The Parties
The Complainant is Interbrew S.A., with registered offices at Grand-Place 1, 1000 Brussels, Belgium.
The Respondent is Adanb, Quintins Rectory Lane, Brasted, Kent TN 16 1 NJ, United Kingdom.
2. The Domain Name and Registrar
The domain name in dispute is <stellaartois.com>.
The Registrar with which the domain name is registered is NameSecure.com based in California, U.S.A..
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received the Complaint on October 10, 2000, by e-mail and on December 20, 2000, in hardcopy. The Center acknowledged receipt thereof on October 12, 2000.
On October 13, 2000 the Complainant requested the Center to temporarily suspend the proceedings in view of the Respondent having indicated that it was willing to transfer the domain name at stake to the Complainant. The Center issued on October 17, 2000 a Notification of Suspension of the Administrative Proceeding to the Parties; accordingly the administrative proceeding was declared suspended until November 16, 2000.
On November 16, 2000 the Center issued a Notification of Extension of Suspension of the Administrative Proceeding which was further stayed until December 16, 2000.
On December 16, 2000 the Complainant requested the Center to resume the administrative proceedings since the Respondent had failed to transfer the domain name in dispute in its favor and filed an electronic version of its "Supplement to the Complaint" a hard copy of which was filed with the Center on December 20, 2000.
On December 29, 2000 the Center sent the corresponding Request for Registrar Verification in connection with this case to NameSecure.com. In view of the lack of verification by NameSecure.com after the Center had sent reminders to the Registrar on January 5, 24, 25 and February 16, 2001, it conducted a search at Network Solutions, the WHOIS data base of which confirmed that the Registrant was "Adanb".
On February 22, 2001, after having verified whether the Complaint was satisfying the formal requirements, the Center notified by courier and e-mail the Commencement of Administrative Proceeding to the Parties, in accordance with Paragraph 4 of the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules").
On March 8, 2001 the Administrative Contact of the Respondent, Mr. Adam Burrows, advised the Center that "there is still no point in any of this proceedings as [he] sent a notarized copy off to Name secure in December so the transfer should have been done".
The Center advised the Respondent's Contact on March 13, 2001 that the proceeding would continue as long as the Center would not have received a formal request for suspension or withdrawal of the Complaint from the Complainant
On March 16, 2001, the Center issued by e-mail the Notification of Default to the Respondent for having failed to submit a response to the Complaint within the deadline granted.
On March 22, 2001, the Center proceeded with the appointment of the Administrative Panel pursuant to Paragraph 6 of the Rules and advised the Parties of the appointment of the undersigned as sole panelist in accordance with Paragraph 6(f) of said Rules, after the latter had signed and forwarded to the Center, on March 21, 2001, a statement of acceptance and declared his impartiality and independence in this matter.
Transmission of the file to the Sole Panelist was made on March 22, 2001, by e-mail and registered post, hard copy of which was received by the undersigned a few days later.
The Sole Panelist forwarded his decision to the Center within the time limit fixed.
4. Factual Background
The Complainant is one of the oldest beer companies existing and the fourth largest in the world. It owns and distributes amongst others the following famous beers: Stella Artois, Hoegaarden, Leffe, Labatt Ice and Rolling Rock.
The Complainant owns the trademark "STELLA ARTOIS" in more than 100 countries (Complainant's Exhibit 3). It owns inter alia the Benelux trademark for "STELLA ARTOIS", registered under number 342401, filed on November 4, 1976 and renewed on June 7, 1996 for class 32 (beers) (Complainant's Exhibit 4), the United States trademark for "STELLA ARTOIS", registered under number 1156584 on June 2, 1981 for class 32 (Complainant's Exhibit 5), and the United Kingdom trademark for "STELLA ARTOIS", registered under number 1072722 on November 4, 1976 and renewed on June 2, 1997 for class 32 (Complainant's Exhibit 6).
The Complainant is the owner of the domain name <stella-artois.com>.
5. Parties’ Contentions
The Complainant submits the following.
(i) The <stellaartois.com> domain name is identical to the Complainant's trademark "STELLA ARTOIS".
(ii) The Respondent has no rights or legitimate interests in respect of the domain name <stellaartois.com> because :
- The Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for or use any domain name incorporating this trademark. The Complainant’s trademark rights in the STELLA ARTOIS trademark existed long before the registration by Respondent of the Domain Name.
- The Respondent never made any use of, or demonstrable preparations to use the Domain Name or a name corresponding to the domain name in connection with a bona fide offering of goods or services, before any notice to him of the dispute, and this although he has registered the Domain Name since about ten months already.
- The Respondent has never been commonly known by the Domain Name, as an individual, legal entity or otherwise, nor has he acquired any trademark or other rights to the Domain Name.
- The Respondent did not and does not make any legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark at issue.
- The Domain Name does not resolve to a web site or other on-line presence. The Respondent’s allegation according to which the Domain Name shall be used for a web site praising "STELLA ARTOIS" is merely an erroneous, self-serving statement that remains unsupported. During all the time that the Complainant’s lawyers have been trying to discuss transfer of the Domain Name, the Respondent has not brought any evidence that could even slightly support his allegations.
(iii) The Respondent has registered the Domain Name in bad faith because :
- It knew of the trademark "STELLA ARTOIS". The Complainant's trademark is so famous in the Respondent’s country that the latter could not have ignored that it was a protected term, the rights to which belongs to a third party. This is also evidenced by the Respondent’s allegation that he registered the Domain Name to have a web site in praise of STELLA ARTOIS.
- When registering the Domain Name, the Respondent knowingly chose a name which is identical and limited to the trademark of the Complainant and which is confusingly similar to the domain name <stella-artois.com> registered by the latter.
The Respondent is using the Domain Name in bad faith because :
- It refused to transfer the Domain Name for reasonable out of pocket costs, clearly indicating thereby his bad faith. The Respondent’s statement "Perhaps your client would like to avoid all the bad publicity that a court case would bring and make a reasonable offer for the site…", clearly indicates the Respondent’s willingness and intent to put the Complainant under pressure and try to squeeze the most out of him. This statement is clearly a threat to go public with the matter and to create a scandal to the Complainant’s detriment if the latter refuses to make a higher offer for the Domain Name than the Respondent’s out-of-pocket costs. The Respondent has obviously taken the Domain Name for ransom.
- The fact that the Domain Name was registered several hours after it became available is another indication of the real intentions of the Respondent, who must have been watching the Domain Name to make sure to be the first one to register in case of availability.
- By registering the Domain Name, the Respondent places the Complainant in a situation where Complainant is unable to reflect its trademark "STELLA ARTOIS" in the corresponding domain name.
The Complainant concludes therefore that it is entitled to the transfer of the domain name at stake in its favor.
In its "Supplement to the Complaint" the Complainant further pointed out that inter alia:
- On October 11, 2000 the Complainant’s representative received an e-mail from the Respondent stating "Hi. I thiught the whole matter was closed . If you require to take the domain name it is available to your client .Please let me know there response" (Complainant's Exhibit 1 of the Supplement to the Complaint).
- On the same day the Complainant answered that it was ready to stop the arbitration proceeding, provided that the Respondent was willing to collaborate in the transfer of the Domain Name to the Complainant, by signing a letter of transfer, have it notarized and send it to the registrar concerned (Complainant's Exhibit 2 of the Supplement to the Complaint).
- On October 16, 2000 the Respondent faxed a signed copy of the letter of transfer to the Complainant’s representative (Complainant's Exhibit 4 of the Supplement to the Complaint). It appeared however that Respondent did not have the document notarized, so that the registrar did not proceed with the transfer of the Domain Name to the Complainant (Complainant's Exhibit 5 of the Supplement to the Complaint). In the meantime, this administrative proceedings had been suspended by the Center at the request of the Complainant (see above).
- Thus, the Complainant’s representative requested the Respondent to send again the letter of transfer, but this time not to forget to have it notarized. Although Respondent confirmed on November 28, 2000, that he would proceed as requested (Complainant's Exhibit 7 of the Supplement to the Complaint), the Domain Name had not yet been transferred (Complainant's Exhibit 8 of the Supplement to the Complaint).
- In his e-mail of November 14, 2000 the Respondent stated that "It is pretty obvious i have no real interest in keeping the name so going to the WIPO would be a waste of your, mine and there time" (Complainant's Exhibit 9 of the Supplement to the Complaint).
The Respondent has not submitted any response to the Complaint itself.
6. Discussion and Findings
Paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy ("the Policy") sets forth three requirements which have to be met for the Administrative Panel to order the transfer of the disputed domain name to the Complainant. Those requirements are that:
(i) Respondent's domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) Respondent's domain name has been registered and is being used in bad faith.
The Complainant must prove in the administrative proceeding that each of the aforesaid three elements are present so as to warrant relief, according to Paragraph 4(a) of the Policy.
The Administrative Panel has to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable, pursuant to Paragraph 15(a) of said Rules.
In the instant case, the Sole Panelist notes that the Respondent has not disputed any of the contentions made by the Complainant in his Complaint.
From the evidence submitted by the Complainant referred to above, but also from the communications made between the Center and the Respondent (see Complainant Exhibits 1, 4, 7 and 9 of the Supplement to the Complaint; see also the communication of the Administrative Contact of the Respondent dated March 8, 2001 to the Center, mentioned above), it stems that the Respondent has declared on several occasions itself ready to transfer the Domain Name, and actually undertook some measures in this respect at the request of the Complainant, even though the Respondent did not fulfill all formalities with the Registrar for the transfer of the domain name <stellaartois:com> to be effective.
Under the circumstances described above, the Sole Panelist understands this to mean that the Respondent actually expressed its agreement to transfer the Domain Name to the Complainant (see, as example, similar cases : Deutsche Bank AG vs. Carl Seigler, WIPO Case No. D2000-0984; Juventus F.C. S.p.A. vs. Sergio Bragança, WIPO Case No. D2000-1466).
The Sole Panelist takes note of such an agreement and shall therefore order it to be effective.
In light of the aforementioned agreement and absent any dispute as to the facts of the case as submitted by the Complainant, it is therefore not necessary to elaborate further as to whether the requirements of Paragraph 4 (a) of the Policy have been met in this matter.
Noting that the Respondent has agreed to the transfer of the domain name in dispute, the Sole Panelist decides that the registration of the domain name <stellaartois.com> be transferred to the Complainant.
Dated: April 4, 2001