WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Christies Inc. v. Ola Ljungberg
Case No. DNU2000-0002
1. The Parties
The Complainant is Christie’s Inc. a New York corporation whose principal place is at 20 Rockefeller Plaza, New York, New York 10020, USA. The Complainant is represented by Perla M. Kuhn of Hughes Hubbard & Reed LLP of One Battery Park Plaza, New York, New York 10004, USA.
The Respondent is an individual called Ola Ljungberg of Roslinvagen 67, 168 51, Stockholm Bromma, Sweden. His email address is "email@example.com".
2. The Domain Name and Registrar
The domain name the subject of the dispute is "christies.nu" which is registered with .NU Domain Limited, the registration authority for the .NU top-level domain. .NU Domain Limited have confirmed that Mr. Ljungberg is the current registrant of the domain name "christies.nu" which was first registered on January 30, 1999. The domain name has an active status. .NU Domain Limited has adopted the Uniform Domain Name Dispute Resolution Policy under which the complaint has been brought.
3. Procedural History
The complaint was received on May 19, 2000, with payment of the fee of US$ 1000. The Panel agrees with the Center’s Assessment that the Complaint complies with the formal requirement under the WIPO Rules.
Notification of the complaint was given to the respondent on May 26, 2000, by email, fax and courier. On May 29, 2000, the Respondent responded to the Center by email from which it would appear that he received a copy of the Complaint. There then followed some email correspondence between the Center and the Respondent. On May 31, 2000, the Respondent requested by email an extension of time for the filing of his Response until August 15, 2000. The Center asked for the Complainant’s comments upon this request. The Complainant indicated that he was prepared to agree to extending the time for 30 days. Accordingly the Center emailed the Respondent on June 4, 2000, confirming that he had been granted an extension of time of 30 days until July 14, 2000.
There followed further email correspondence between the Center and the Respondent, the Respondent indicating that he needed until August 15, 2000, to serve his Response.
On July 19, 2000, the Center informed the Respondent by email that the deadline for his response had expired on July 14, 2000, and that they were in the process of appointing a Panelist on July 24, 2000. An Administrative Panel was appointed consisting of a single member Clive Thorne. The Panelist duly submitted a Statement of Acceptance and Declaration of Impartiality and Independence to the Center. As at the date of this decision (August 6, 2000) the Panel is unaware of any Response having been filed by the Complainant.
4. Factual Background
The Complainant is the well-known auction house "Christie’s". Evidence has been given by the Complainant (Annex C to the Complaint) that Christie’s is the world’s oldest fine art auction house which was founded as long ago as 1766 by Mr. James Christie. Over its 233 year history Christie’s has grown and diversified into the world’s pre-eminent auction company. Christie’s currently offers sales in over 80 separate categories including all areas of fine and applied arts, collectibles, wine, stamps, motor cars and even sunken cargo. While it is reputed for selling high priced works of art many of the items offered at Christie’s are apparently affordable to even novice collectors. Christie’s operation is worldwide with 119 representative offices, including 16 selling Centers, in 41 countries. Christie’s in North and South America has three principal sale locations, two in New York and a Los Angeles salesroom as well as 23 regional offices elsewhere.
No evidence is given as to whether the Complainant trades in Sweden. However there is evidence that the Complainant owns the trademark registrations in the mark "Christie’s" worldwide including a trademark registration for the mark "Christie’s" (number 222782) for auctions in Sweden. A copy of the registration is exhibited Annex E to the Complaint. The proprietor of the registration is not the Complainant but is a company called Christie Manson and Woods Limited. The Complainant also adduces evidence of a number of United States trademark registrations incorporating the mark "Christie’s". A number of these United States registrations also appear to be registered in the name of Christie Manson and Woods International Inc. of 502, Park Avenue, New York, New York 10022. The Complainant does not explain why these marks are vested in Christies Manson and Woods International Inc. rather than the Complainant. The Panel takes notice of the fact that US registration number 2200318 is registered in the name of the Complainant with the address of 502, Park Avenue, New York, New York 10022. The Panel is therefore prepared to accept that there is an association between the Complainant and Christies Manson and Wood International Inc. In reaching its decision it pays particular attention to registration number 2200318 for "Christie’s" registered in the Complainant’s name.
5. Parties’ Contentions
The Complainant contends:-
(i) The domain name registered by the Respondent is either identical or confusingly similar to the Complainant’s trademarks.
(ii) There is no evidence that the Respondent has any rights or legitimate interest in the domain name.
(iii) The Respondent has registered and used the domain name "christies.nu" in bad faith.
6. Discussion and Findings
In the absence of a response the Panel requires the Complainant to prove each of the three elements set out at paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy:-
(i) That the Respondents domain name 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 interest in respect of the domain name; and
(iii) The Respondent’s domain name has been registered and is being used in bad faith.
(i) The domain name is identical or confusingly similar
The domain name in dispute is "christies.nu". The Complainant’s US trademark registration 2200318 is "Christie’s" as is the Swedish trademark number 222782 registered in the name of Christie Manson and Woods Limited. Despite the existence of an apostrophe in the Complainant’s mark the Panel agrees that the Respondent’s domain name is confusingly similar to these two trademarks. In the same way the domain name is confusingly similar to the Complainant’s trading name "Christie’s" which it should be noted also includes an apostrophe. The Complainant therefore succeeds in proving the first element.
(ii) The Respondent has no rights of legitimate interests in respect of the domain name
The Complainant, which has the burden of proof relies on the following:-
(a) That the Respondent is not a licensee or otherwise permitted to use the Complainant’s trademark.
(b) That a search of the US patent and trademark office did not disclose the Respondent owning any trademark registrations or applications for the domain names.
(c) The domain is not the legal name of the Respondent, Ola Ljungberg.
The Panel accepts these submissions and is particularly persuaded by the fact that there is no evidence that the Respondent uses "Christies" as a trading name himself. The domain name "christies.nu" does not resolve to an operational website but is used to create links to the business operated by the Respondent at "artauction.nu". The Complainant therefore succeeds in proving the second element.
(iii) The domain name has been registered and is being used in bad faith
Paragraph 4(b) of the Policy sets out circumstances which without limitation and if found by the Panel to be present shall be evidence of the registration and use of the domain name in bad faith. These are as follows:-
(i) In circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complaint, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.
In support of its complaint that the domain name has been registered and is being used in bad faith the Complainant relies upon the fact that the Respondent has used the domain name registration to intentionally attract, for commercial gain, internet users to his website. This was the subject of the Complainant’s adviser’s initial cease and desist letter of April 11, 2000. A print out of the link between "christies.nu" and "www.artauction.nu" is exhibited at Annex G. The website is operational for on line art auctions and the page states that there is "bidding in progress" and that the site is "unlike other internet auctions! He will find only items related to art/antique/collectibles developed by professionals to a real art auction hall".
It appears to the panel that the only basis for creating this link can have been for establishing an association or connection in the course of trade between the Complainant and the Respondent’s activities. In the Panel’s view such activity falls clearly within sub paragraph (iv) of paragraph 4(b) referred to above.
In reaching this conclusion the Panel is supported by the fact that the Respondent owns other domain name registrations that incorporate trademarks owned by other well known auction companies. At Annex N to the Complaint the Complainant exhibits print outs of the use of the domain names "sotherbys.nu", "bukowski.nu" and "auktionsverk.nu" which all resolve to art "auction.nu". From Annex O it can be seen that the Respondent is also the registrant of the domain name "sotherbys.nu" whilst the domain names "bukowski.nu" and "auktionsverk.com" are listed as registered by "firstname.lastname@example.org" with the same telephone number that is listed as a contact number on the website "artauction.nu".
The Complainant has adduced evidence that these three domain names incorporate the trademarks associated with other prominent international art auction houses; Sotheby’s, Bukowskis and Stockholms Aucktionsverk. The Complainant points out Sotheby’s sales in 1999 totalled $US2.3 million with a market share of 45% of the worldwide art auction market. Sotheby’s have registered a number of US trademark applications and registrations. These are annexed at Annex P of the complaint. Bukowskis is apparently Sweden’s best know auction house with sales totalling $23.4 million in 1998 (Annex Q). Stockholm’s Aucktionsverk was founded in 1674 and holds over 100 auctions in Stockholm each year (Annex Q).
The Panel regards this as further evidence of an intentional attempt to attract for commercial gain internet users to the website by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the website. The registration of the domain names incorporating the trademarks of other auction houses and use of the domain names to link to "www.artauction.nu" further demonstrates the Respondent’s intention to divert Internet users to the website "www.artauction.nu" by exploiting the good will associated with third party trademarks.
Even if the Panel is wrong in reaching this conclusion the Complainant relies as further evidence of bad faith on the evidence that the Respondent has offered to sell the domain name "christies.nu" for a price far "in excess of the Respondent’s documented out of pocket costs directly relating to the domain name" (subparagraph 4(b)(i)).
Evidence of this is the correspondence passing between the Complainant and the Respondent. On April 19, 2000, the Complainant’s representative wrote to the Respondent offering to reimburse the registration costs for registering "christies.nu". The Respondent responded on April 27, 2000, with an offer to sell his on line auction business and a number of "very attractive domain names related to the business. Some of the domain names included will be "artauction.nu", "antiqueaction.nu" ... and of course "christies.nu"". The Respondent claimed that the value of the business was US$ 120,000. In all the circumstances the Panel accepts the Complainant’s argument that this was a blatant attempt to profit from the sale of the domain name incorporating Christie’s trademark.
It follows that the Complainant has established that the domain name has been registered and is being used in bad faith. Accordingly the Complainant has succeeded in proving all three of the elements within paragraph 4(a) of the Policy.
In accordance with paragraph 4(i) of the Rules the Panel requires the transfer of the domain name "christies.nu" to the Complainant.
Clive Duncan Thorne
Dated: 6 August, 2000