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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Mövenpick Holding AG v. Olive Tree Products

Case No. D2000-1540

 

1. The Parties

The Complainant in these administrative proceedings is Mövenpick Holding AG, a Swiss company with its business seat in Zurich, Switzerland.

The Respondent is Olive Tree Products of 315 Paris Street, San Francisco, CA 94112 JO, USA.

 

2. The Domain Name and Registrar

The domain name in issue in these Administrative Proceedings is "movenpickhotels.com". The Registrar with which the said domain name is registered is Network Solutions Inc. ("the Registrar").

 

3. Procedural History

On November 15, 2000, the Complaint was received by the WIPO Arbitration and Mediation Center ("the Center") by e-mail and in hard copy on November 18, 2000, in accordance with the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and the WIPO Supplemental Rules for Uniform Dispute Resolution Policy ("the Supplemental Rules").

On November 17, 2000, the Center sent a Request for Registrar Verification to the Registrar and on November 21, 2000, the Registrar confirmed that the said domain name "movenpickhotels.com" was registered through the Registrar, that the Respondent was on that date the current registrant of the said domain name, that the Policy applies to the said registration and that the said registration is in active status.

On November 20, 2000, the Complainant submitted an amendment to the said Complaint inter alia providing the names of nominees for a three member panel.

In accordance with Paragraph 4(a) of the Rules and paragraph 5 of the Supplemental Rules, the Center verified that the Complaint satisfied the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment in the required amount had been made by the Complainant.

On November 22, 2000, the Center sent a Notification of Complaint and Commencement of Administrative Proceeding relating to the said domain name "movenpickhotels.com" to the Respondent by Post/Courier (with enclosures), by facsimile (Complaint with attachments) and by e-mail (Complaint with attachments). A copy of the said amendment to the Complaint received by the Center on November 20, 2000, was included in said enclosures. A copy of said Notification was sent to the authorised representative of the Complainant by e-mail. Further copies of said Notification were sent to the Internet Corporation for Assigned Names and Numbers ("ICANN") and the Registrar.

Said Notification of Complaint and Commencement of Administrative Proceeding inter alia advised the Respondent that these Administrative Proceedings had commenced on November 22, 2000, and that the Respondent was required to submit a Response to the Center on or before December 11, 2000.

No Response was received from the Respondent by the due date or at all.

On December 14, 2000, the Center received a further amendment to the Complaint requesting that the reference should be decided by a single member panel.

On December 14, 2000, the Center sent a Notification of Respondent Default to the Respondent and indicated that as the Complainant had designated a single member Administrative Panel, the Center would appoint a panelist from its published list.

On December 16, 2000, the Center invited James Bridgeman to act as Administrative Panel in these Administrative Proceedings and on December 19, 2000, having received a Statement of Acceptance and Declaration of Impartiality from said James Bridgeman, the Center proceeded to appoint this Administrative Panel. On the same date, the case file was transferred to the Administrative Panel.

In the view of the Administrative Panel, the proper procedures were followed and this Administrative Panel was properly constituted.

 

4. Factual Background

The Complainant is the owner of the following U.S.A. registered trademark:-

"MÖVENPICK" (device) registration number 1,866,603 having a filing date of June 17, 1993 and registered on December 6, 1994, in class 42 in respect of "hotel services, restaurant services, and canteen services".

The following marks are registered in the name of Mövenpick AG Zurich (Swiss Corporation) of Seestrasse 160, Zurich, Switzerland:

"MÖVENPICK" (device) registration number 1197461, having a filing date of May 1980, and registered on March 16 1982, in international class 42 in respect of "restaurant services" ;

"MÖVENPICK" (device) registration number 1,202,898 registered on August 30, 1982 in respect of goods being "smoked fish, salad dressing and mayonnaise" in international class 29, "cocktail sauce, sherbets, coffee, tea, cakes and ice cream" in international class 30 and "cognacs, liqueurs, armagnacs and scotch whiskies, distilled liquors - namely, brandies, gin and vodka" in international class 33.

"MÖVENPICK" (device) registration number 843,788, registered on February 6, 1968 and renewed on February 6, 1988 in respect of goods being "coffee, pies, cake and pastry, iced pies, cake and pastry; ice cream" in U.S. class 46, "wine" in U.S. class 47 and "brandy" in US class 49.

The Complainant is one member of a group of companies including Mövenpick Foods Ltd., Mövenpick Dienstleistungs AG, Mövenpick Gastronomy International, Mövenpick Unternehmungen and Mövenpick Wines. The parent company and other companies within the group are proprietors of several domain names containing the words "mövenpick", "moevenpick" or "moewenpick"

In the absence of any Response, or any other communication from the Respondent, there is little information available about the Respondent. According to the Registrar's Whois database the said domain name "movenpickhotels.com" was registered by the Respondent on November 16, 1999. The Respondent is both the registrant and the administrative contact of the said domain name.

 

5. Parties’ Contentions

A. Complainant

The Complainant requests that this Administrative Panel issue a decision that the domain name "movenpickhotels.com" be transferred to the Complainant.

The Complainant submits that in accordance with paragraph 4(a) of the Policy, the Respondent is required to submit to a mandatory administrative proceeding because:

(i) the said domain name "movenpickhotels.com" is confusingly similar to a trademark and service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the said domain name; and

(iii) the said domain name was registered and is being used in bad faith.

In support of these claims the Complainant submits that it is the owner of numerous registered trademarks including those USA registrations listed above. The Complainant has submitted copies of the registration certificates of the said USA registered trademarks.

Furthermore the Complainant has submitted a print-out of the database search of the Registrar's database against domain names incorporating the words "mövenpick", "moevenpick" and "moewenpick" which it claims illustrates that there are a significant number of domain names incorporating these words registered by members of the Complainant's group of companies. The Complainant submits that the result of this search includes inter alia a registration of the domain "movenpickhotels.com", registered for the Mövenpick Unternehmungen, a subsidiary of the Complainant.

The Complainant submits that the said domain name "movenpickhotels.com" is nearly identical to the Complainant's trademark "MÖVENPICK". The only difference is that the Respondent has not registered the name as usually used in the Swiss or German language. Due to the fact that the umlaut ("ö") is not used in the English language, the Respondent has decided to register the name "movenpick" simply with the letter "o".

The Complainant states that since the Complainant and its related companies are the proprietors of the said trademarks and have registered the said domain names, it is quite clear that the Respondent has registered the said domain name to benefit from the goodwill of the Complainant.

It is also quite clear that the Respondent has applied for this domain name in bad faith. The Complainant has submitted a printout of a search for domains registered in the name of the Respondent. Included in the results of the said search is the name of another famous hotel chain viz. "lemeridianhotels.com". The Complainant submits that the registration of such domain names by the Respondent indicates that the Respondent intends to sell these domain names.

The Complainant states that the said domain name "movenpickhotels.com" is not in use. The www site gives the information "under construction". There is no relevant information on the www site. The Complainant states it follows that the Respondent is obviously keeping said domain name registration primarily for the purpose of selling or otherwise looking for some benefit from the registration.

The Complainant states that Respondent has obviously no actual business. All domain

names registered by the Respondent are addresses for www sites which are "under construction". The Complainant submits that the Respondent is not offering any business at all. The Complainant submits that it follows that the only purpose of registering the said domain name "movenpickhotels.com" was to sell it.

On March 16, 2000, the Respondent was approached by the representatives of the Complainant and asked to assign the said domain name "movenpickhotels.com" .This approach was made by letter, sent by e-mail to the Respondent's address on the Registrar's WHOIS database. The Respondent has never replied to this letter.

B. Respondent

There was no Response filed by the Respondent.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy places on the Complainant the onus of proving that

(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the said domain name; and

(iii) the said domain name has been registered and is being used in bad faith.

The Complainant has satisfied this Administrative Panel that it is the owner of the USA registered service mark "MÖVENPICK" (device), Reg. No. 1,866,603, registered for "hotel services, restaurant services, and canteen services" as the certificate furnished states that the Complainant holds this registration as the assignee of Mövenpick AG Zurich.

Although it is quite likely that the Complainant is connected with said of Mövenpick AG Zurich, the Complainant has not provided any evidence to show that it has any association with the registered proprietor of the U.S.A. registered trademarks:

● Mövenpick", Reg.-No. 1,197,461, registered for "restaurant services";

● "MÖVENPICK", Reg.-No. 1,202,898, registered for "smoked fish, salad dressing and mayonnaise, cocktail sauce, sherbets, coffee, tea, cakes and ice cream, cognacs, liqueurs, armagnacs and scotch whiskies, distilled liquors - namely, brandies, gin and vodka"; and

● "MÖVENPICK", Reg.-No. 843,788, registered for "coffee, pies, cake and pastry; iced pies, cake and pastry; and ice cream; wine; brandy

While being conscious that the said registered service mark "MÖVENPICK" (device), Reg. No. 1,866,603 on which the Complainant relies is a device mark, this Administrative Panel accepts the Complainant's submissions that the said domain name "movenpickhotels.com" is confusingly similar to the Complainant's said servicemark.

There are three elements of difference between the said domain name and the Complainant's said registered service mark viz. the Complainant's registered service mark is a device mark, there is no umlaut over the letter "o" in the domain name and the presence of the additional descriptive element "hotels" in the domain name.

Although the Complainant's service mark is a device mark, on examination by this Administrative Panel, of the said service mark, it is clear that the word "MÖVENPICK" is the principal element of the said device. Furthermore the word "MÖVENPICK" appears to be a very distinctive element and there does not appear to be any disclaimer in respect of that word.. The certificate of registration merely notes that "[t]he word 'movenpick' is derived from the german words 'move' or 'moeve' which means 'seagull' and 'picken' which means 'to pick'".

As to the absence of the umlaut over the letter "o" in the domain name, in the view of this Administrative Panel there is likely to be confusion in the minds of English speaking people because there is no umlaut on letters in the alphabet as used in the English language. Furthermore, many users of the Internet use English language keyboards which treat "ö" as a symbol rather than a letter and they are likely to ignore the umlaut.

With regard to the third element of difference, this Administrative Panel accepts that the addition of the element being the word "hotels" to the said service mark amounts to the addition of a non-distinctive and descriptive element in the circumstances of these Administrative Proceedings. The addition of this element in the said domain name does not serve to sufficiently distinguish the said domain name so as to avoid the likelihood of confusion. In the circumstances of the present case, the said domain name "movenpickhotels.com" is a combination of the principal element of the Complainant's trademark with a description of the services for which the said service mark has been registered.

This Administrative Panel therefore concludes that the Complainant has satisfied the first element of the test and established that the said domain name "movenpickhotels.com" is confusingly similar to the said service mark in which the Complainant has rights.

The Respondent has failed to deny the Complainant's allegations that the Respondent has no actual business. In these circumstances, this Administrative Panel accepts the Complainants submission that the Respondent has no rights or legitimate interest in the said domain name. In the absence of any Response from the Respondent, this Administrative Panel accepts that it can draw an inference from the fact that the said domain name and all domain names registered by the Respondent are addresses for www sites which are "under construction". Furthermore, there are no other factors indicating that the Respondent has any such rights or legitimate interest in the said domain name.

This Administrative Panel is also satisfied that the Complainant has established that the said domain name was registered and is being used in bad faith. In reaching this conclusion, this Administrative Panel has accepted that the Complainant has set out a prima facie case that the Respondent is engaged in the passive holding of not only the said domain name but many other domain names corressponding to famous trademarks.

This Administrative Panel therefore concludes that the Complainant has established that there are circumstances indicating that the Respondent has registered the said domain name primarily for the purpose of selling, renting, or otherwise transferring the said domain name registration to the Complainant who is the owner of the said service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the domain name; and furthermore that the Respondent has registered the said domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, and the Respondent is engaged in a pattern of such conduct

 

7. Decision

With specific reference to paragraph 4(i) of the Policy and paragraph 15 of the Rules this Administrative Panel decides that the Respondent has registered the domain name "movenpickhotels.com" confusingly similar to a service mark in which the Complainant has rights, that the Respondent has no rights or legitimate interest in respect of said domain name and that the Respondent has registered and is using said domain name in bad faith. Accordingly, this Administrative Panel decides that said domain name " movenpickhotels.com " should be transferred to the Complainant.

 


 

James Bridgeman
Sole Panelist

Dated: December 30, 2000

 

Источник информации: https://internet-law.ru/intlaw/udrp/2000/d2000-1540.html

 

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