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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Koninklijke Philips Electronics N.V. vs. Jaaska (or Jääskä) Kaketti

Case No D2001-0231

 

1. The Parties

Complainant is Koninklijke Philips Electronics N.V, Groenewoudseweg 1, 5621 BA Eindhoven, the Netherlands. Its authorised representative in this case is Mr J.J.E.C.G Vandekerckhove, Postbus 220, 5600 AE, Eindhoven, the Netherlands.

Respondent is Jääskä Kaketti, who is a private person under address: Huvilakatu, 19, Kokkola, FIN-67200, Finland. (Complainant indicates Respondentґs name as "Jaaska", while in the Registrar Verification it is indicated as "Jääskä." In his e-mails Respondent uses the name "Esko." It would seem that these are, in Finnish, different forms of the same name).

 

2. Domain Name and Registrar

The domain name at issue is <philipsdigital.com>. The Registrar is Network

Solutions Inc., 505 Huntmar Park Drive, Herndon, Virginia, United States.

 

3. Procedural History

The World Intellectual Property Organization Arbitration and Mediation Center (the Center) received a Complaint from Complainant by e-mail on February 13, 2001, and in hardcopy form on February 14, 2001 (as indicated in the Case File). After request by the Center, Complainant filed an amended Complaint stating the correct Registrar and the submission to a valid jurisdiction.

Having verified that the Complaint complied with the formal requirements, the Center issued, on February 28, 2001, a Notification of Complaint and Commencement of Administrative Proceeding. This Notification was notified to Complainant, to the Registrar and to ICANN. It was also notified to Respondent by post/courier, by facsimile and also by e-mails that were sent to Administrative Contact/Billing Contact, to Technical contact and to postmaster@philipsdigital.com. The one to the Technical Contact went through but the others not. The first one was returned with the mention "Host unknown" and the second with the mention "Name Server time out." The notification sent by fax did not go through. The notification sent by courier was, however, delivered. The one to Respondent (Shipment Airway Bill No 9697521175) was, according to the record, delivered on March 8, 2001, at 15.18, and the one to Technical Contact (Shipment Airway Bill No 9697521606) was delivered on March 1, 2001, at 14.39.

Having received correct information from Complainant about the identity of the Registrar, the Center issued a Request for Registrar Verification and received such a Verification on February 26, 2001.

According to that Verification

- Network Solutions is in receipt of the Complaint sent by Complainant

- Network Solutions is the Registrar of the domain name at issue

- Registrant is Jääskä/Kaketti, Huvilakatu 19, Kokkola, Finland 67200, Finland

- The domain name at issue is <philipsdigital.com>.

- Administrative Contact/Billing Contact is: "Kaketti, Esko (EK2033) esko.kaketti@GNWMAIL.COM, Kaketti, Huvilakatu, 19, kokkola 67200, Finland, 06-8313807 (FAX)"

- Technical Contact is: "K Toroshan SEN (HO336-ORG), EZOP Travel, Inonu Caddesi, Ebe Hanym, Sokak-Gezi Apt No 8/3, Istanbul, Turkey TR, 212 2928170, Fax-212 2928170-72"

- Network Solutions’ 4 Service Agreement is in effect, and

- The domain name registration status is: "Active."

It is noted that Network Solutionsґ WHOIS database indicates that the record relating to the domain name at issue was created on September 1, 1999.

Having received no Response from Respondent the Center issued, on March 20, 2001, a Notification of Respondent Default, which was transmitted to the Parties by e-mail. In the case of Respondent the e-mails were returned for the same reasons as indicated in the case of the e-mails relating to the Notification of Complaint.

The Center invited Mr. Henry Olsson to serve as Sole Panelist in the case and received, on March 28, 2001, Mr Olssonґs Statement of Acceptance and Declaration of Impartiality and Independence. The same day the Center appointed Mr Olsson as Sole Panelist and issued a Notification of Appointment of Administrative Panel and Projected Decision Date, which was communicated to the Parties. The Projected Decision Date was April 10, 2001.

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

On the basis of the documents available relating to the notifications to Respondent, which documents have been referred to above, the Panel concludes that the Complaint has in fact been duly communicated to Respondent by way of courier and that there is, from this point of view, no obstacle to considering the case.

 

4. Factual Background

Complainant is a public limited company, incorporated in the Netherlands where it also holds its principal place of business.

No information is available about Respondent.

Complainant agrees to submit , only with respect to any challenge that may be made by Respondent to a decision by the Administrative Panel to transfer or cancel the domain name that is the subject of this Complaint, to the jurisdiction of the courts at the location of Respondentґs address.

 

5. Partiesґ Contentions

A. Complainant

General

Complainant contends that the trademark "Philips" has been registered by the predecessors of Complainant in the Netherlands since 1891 and is registered in numerous jurisdictions worldwide. It is, according to Complainant, synonymous with a wide spectrum of products varying from consumer electronics to domestic appliances and from security systems to semiconductors. Complainant contends that the "Philips" brand name is the companyґs most important asset as it has spent substantial sums on supporting its brand worldwide.

To show its worldwide presence, Complainant has submitted a list of the major countries in which the mark is registered.

Confusing similarity between Complainantґs mark and the domain name at issue

Complainant contends that the domain name at issue is confusingly similar to the "Philips" trademark registered by Complainant and in which Complainant has rights

Rights or legitimate interests in the domain name

In this respect, Complainant contends that Respondent has no rights or legitimate interests in the domain name which has, according to Complainant, been registered primarily for the purpose of selling or otherwise transferring it to Complainant for a valuable consideration in excess of Respondentґs out-of–pocket costs directly related to the domain name.

To support this contention, Complainant has submitted some correspondence, which is described more in detail under the following headline.

Registration and use in bad faith

Complainant contends in this respect that it is evident that the domain name at issue has been registered in bad faith, for the following reasons. First, according to Complainant, the registration of the domain name in question causes unfairness and is certainly detrimental to the business of Complainant as the mark is influential in the field of business it was registered for. Secondly, according to Complainant, the registration was based on a domain name speculation without any real intent to use it. Thirdly, Complainant contends that Respondent clearly had no demonstrable plan to use the domain name for a bona fide purpose prior to registration of the domain name from which Complainant concludes that the registration was aimed at coaxing Complainant into buying the domain name.

To support this contention, Complainant has referred to the contents of some e-mail correspondence as well as a copy of a "cease and desist letter" to Respondent of January 11, 2001. The correspondence in question consists of some e-mails from Respondent to Samantha Frida, Domain Name Attorney at Philips. One of those, dated "02/12/2001 03:49 PM" states: "I just own it, on my own purposes. Seems that you need to do something if you want it. Esko." Another e-mail of the same day of 03:44 PM, states "I register it on my purposes and if you like fight for it then you can do that. So its seems that you have nothing to talk whit me. Its seems that you not like to do nothing, what you say on you leter to accomplish." A third e-mail of the same day, at 03.41 PM seems to contain a wish by Respondent to buy some flat TV or PC screens with a question concerning the price for those.

Remedies requested

For the reasons set out and referred to above, Complainant requests the Administrative Panel to issue a decision that the domain name <philipsdigital.com> be transferred to Complainant

B. Respondent

Respondent who has, as mentioned above, been communicated the Complaint has not submitted any Response and is in Default

 

6. Discussions and Findings

Paragraph 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, paragraph 14 of the Rules prescribes 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 these contentions.

The Service Agreement relating to the domain name registration at issue incorporates the Policy which is consequently applicable to this case.

Paragraph 4.a. of the Policy directs that Complainant must prove each of the following:

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

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

- 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 those elements.

Identity or Confusing Similarity

In this respect Complainant has, according to Paragraph 4.a(i) of the Policy, to prove that the domain name at issue is identical or confusingly similar to a trademark or a service mark in which Complainant has rights.

The domain name at issue is <philipsdigital.com>.

The documentation submitted by Complainant shows that Complainant is the holder of the mark "Philips" both in Complainantґs home country the Netherlands and in a number of other countries and that the mark is well known in connection with various products in the field of electronics.

The domain name contains as a dominant part the denomination "philips" with the addition of the notion "digital" which has clear connotations to the electronics field, in which Complainant conducts a wide range of well-known business activities. In the view of this Panel there exists thus a confusing similarity between the mark and the domain name. As has been noted in several earlier Panel decisions, the suffix ".com" is not a sufficiently distinguishing factor to change the likelihood for confusion.

On the basis of these considerations the Panel concludes that there exists in fact a confusing similarity between the domain name at issue and Complainantґ s trademark.

Rights or Legitimate Interests

In this respect Complainant has, according to Paragraph 4.a(ii) of the Policy, to prove that Respondent has no rights or legitimate interests in the domain name.

Complainant has submitted documentation in the form of e-mails from Respondent – seemingly in response to Complainantґs "cease and desist letter" - indicating that Complainant "need to do something if you want it." This is, however, a rather general statement and does not by itself indicate that Respondent has – as Complainant contends - offered to sell the domain name to Complainant for a certain amount of money.

Complainant has also contended that Respondent has not used the domain name for its own business purposes. In fact very little is known about Respondentґs activities, except that Respondent has, according to the mail of February 12, at 03.41, asked about the price for some flat TV or PC screens.

Respondent has not, despite the possibility given, objected to those allegations or commented on them.

The Panel understands the difficulty in providing clear and unequivocal evidence about Respondentґs rights or legitimate interests in a domain name at issue, in particular when a Respondent has not, as in this case, submitted any response. In this particular case the Panel finds that Complainantґs statements and the documentation submitted certainly point in the direction indicated by Complainant. Nevertheless, the Panel must conclude that the statements made are not elaborated enough and the documentation submitted to support those statements not sufficiently conclusive to prove, with the degree of certainty needed, the veracity of Complainantґs allegations as regards Respondentґs rights or legitimate interests in respect of the domain name. The Panel can therefore not find it to be established that Respondent has no rights or legitimate interests in the domain name at issue in the sense of the Policy.

Registration and Use in Bad Faith

Complainant has contended that the registration of the domain name causes unfairness against Complainant, that the registration was based on speculation without any real intent to use the domain name and that Respondent had no demonstrable plan to use that name for any bona fide purpose prior to the registration, which was, according to Complainant, mainly aimed at forcing Complainant to buy the domain name.

To support these contentions Complainant has referred to the contents of some correspondence between Respondent and Complainant, including the so-called "cease and desist" letter.

Respondent has not commented on those allegations, despite the opportunity given, nor has come forward with any objections against Complainantґs contentions.

As regards this aspect of the Complaint the Panel comes, for essentially the same reasons, to the same conclusions as those in respect of the Respondentґs rights and legitimate interests in the domain name at issue. Even if it can be suspected that the domain name was in fact registered with the intention to exploit Complainantґs well-known trademark and reputation, the circumstances in the case, the allegations made and the documentation submitted to support those are, in the view of this Panel, not sufficient to prove bad faith in the sense of the Policy. The Panel can thus not find it to be established that the domain name at issue has in fact been registered and is being used in bad faith as prescribed in the Policy.

Conclusion

On the basis of the foregoing, the Administrative Panel concludes that the domain name at issue is confusingly similar to Complainantґs trademark, that it has not been established that Respondent has no rights or legitimate interests in the domain name at issue and that it has not been established that the domain name has been registered and is being used in bad faith in the sense of the Policy.

Consequently Complainantґs request for a transfer of the domain name to Complainant shall be denied.

 

7. Decision

Complainantґs request for a transfer of the domain name at issue to Complainant is denied.

 


 

Henry Olsson
Sole Panelist

Dated: April 2, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2001/d2001-0231.html

 

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