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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Remy Cointreau Holding Company, Remy Martin & Cie, Cointreau SA v. Greenhouse Inc.
Case No. D2001-1085
1. The Parties
The Complainants in this administrative proceeding are Remy Cointreau Holding Company, Rue Joseph Pataa, F-16100 Cognac, France, together with its subsidiaries Remy Martin & Cie, 20 Rue de la Société Vinicole, F-16102 Cognac, and Cointreau SA, Carrefour Molière, F-49124 Saint Barthélémy d'Anjou, France.
The Respondent is Greenhouse Inc., 1 Barbara Place, Eastchester, NY 10709, USA.
2. The Domain Names and Registrar
The domain names at issue are <remymartin.net> and <cointreau.net> (hereafter "the Domain Names"). The Domain Names are registered with Register.Com Inc., 575 8th Avenue, 11th Floor, New York, NY 10018, USA.
3. Procedural History
The Complainants filed a complaint ("the Complaint") with the World Intellectual Property Organization Arbitration and Mediation Center ("the Center") on September 4, 2001.
On September 10, 2001, the Center transmitted to Register.Com Inc. the request for Registrar Verification in connection with this case.
On September 10, 2001, Register.Com responded to the Center’s request for Registrar Verification and confirmed that the Respondent is the registrant of the Domain Names <remymartin.net> and <cointreau.net>. It also confirmed that the Domain Names were registered in the name of Greenhouse Inc.
The administrative proceeding commenced on September 14, 2001. The same day, the Center notified the Complaint to Respondent.
As no response was submitted within 20 days as of the commencement of the administrative proceeding (sub-section 5 (a) of the Rules for Uniform Domain Name Dispute Resolution Policy; "the Policy"), the Center notified Respondent on October 11, 2001, that it was in default.
Upon receipt of the necessary Declaration of Independence and Impartiality, the Center appointed the undersigned on October 29, 2001, to serve as sole Panelist in this administrative proceeding.
After drafting but before issuing this decision, via WIPO the Panelist received a supplementary submission on behalf of the Complainants, by which the Panel was asked to also decide on two further domain names registered by Respondent. The Policy and the Rules do not provide for admission of such submissions but this is subject to the general discretion of the Panelist. The Panel cannot consider this new submission (see also Archipelago Holdings LLC, v. Creative Genius Domain Sales and Robert Aragon dba. Creative Genius Domain Name Sales, WIPO D2001-0729). Indeed, Complainants do no only submit new evidence or other material but invite the Panel to decide on two further issues in dispute which are outside the scope of the procedure instigated by Complainants. Accepting such modification of the matter at issue would mean to recommence the whole procedure, i.e. to invite Complainants to submit a new Request and grant Respondent a new deadline for his Response. Indeed, the arguments put forward in the Complaint (in particular regarding Paragraph 4 (a) (i) of the Policy) cannot simply be applied to the two new domain names subsequently submitted by Complainants. It would mean to ignore the fast track character of the ICANN procedure if the Panel would recommence the whole process for considering Complainants' new request. The Complainants are of course free to introduce a new administrative procedure regarding the two domain names of which they indicate having only recently discovered Respondent's involvement.
4. Factual Background
The Complainants are well-known companies commercializing their alcoholic and other products all over the world. The Remy Martin Company was founded in 1724 and the Cointreau Distillerie was created in 1849. The Remy Cointreau Group had a turnover in the year 2000 of FRF 5.191 billion (Annex G).
The first registration of Complainants' trademarks dates back to 1913 for Cointreau and 1967 for Remy Martin. Meanwhile, the use of the Remy Martin and Cointreau trademarks has spread out both in terms of number of products and geographical coverage (Annex F).
Today, the Remy Cointreau Group is the owner of numerous word and device trademarks, covering many countries of the world, in particular also France and the United States (see Annex E).
5. Parties' Contentions
The Complainants allege that the Domain Names are identical to their famous trademarks. Pursuant to the Complainants, they have never licensed or otherwise authorized the Respondent to use the Remy Martin or the Cointreau trademarks, and there is no relationship between the Parties. The Complainants declare that the Respondent is not using any of the Domain Names for an active website. The Complainants are further of the opinion that the Respondent registered the Domain Names knowing that they are famous trademarks.
The Respondent has not submitted any response to the Complaint.
6. Discussion and Findings
To succeed in its Complaint, Complainant must show that each of the conditions of paragraph 4 (a) of the Policy is satisfied, namely that:
(i) the Domain Names are identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in the Domain Names, and
(iii) the Domain Names have been registered and used in bad faith.
These three elements will be considered below:
(i) Identity or Confusing Similarity
There is no doubt that the Domain Names <remymartin.net> and <cointreau.net> are identical with Complainant's trademarks in the sense of Article 4 (a)(i) of the Policy.
(ii) Rights or Legitimate Interests
The Panel does not have any evidence that Complainants have licensed or otherwise permitted Respondent to use their trademark or to apply for the Domain Names incorporating these marks.
As the Respondent has not submitted a response, the Panel can find no indicia that Respondent has any rights or legitimate interests in the Domain Names pursuant to Article 4 (c) of the Policy. The Panel is thus of the opinion that Complainants have satisfied the second element of the Policy.
(iii) Domain Name Registered and Used in Bad Faith
The third element Complainants have to prove to succeed in their Complaint is registration and use of the Domain Names in bad faith.
Due to the fact that Cointreau and Remy Martin are widely known trademarks and that Complainants' products have been marketed and sold also in the United States where the Respondent is located, the Panel concludes that Respondent must have been aware of the Complainants' rights in the trademarks in question when it registered the Domain Names.
Respondent's Domain Names are not really used, since they only resolve to a holding page of the Registrar, Register.Com. Although it seems that Respondent did not contact Complainants to sell the Domain Names, it can be assumed that in view of the famous trademarks at stake that they have been registered with a view to sell them to Complainants. Indeed, it is practically impossible that Respondent would be able to use the Domain Names without coming into conflict with Complainants' rights in their well-known marks (see also Inter-IKEA Systems B.V v. Avi Chekroun, WIPO D2000-0478). The fact that Respondent did not file any response to the Complaint is a further element showing that Respondent does not pursue any just cause. Moreover, as other Panels have previously stated, the Domain Names are so obviously connected with the Complainants and their products and services that their very use by someone with no connection with the Complainants suggest opportunistic bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO D2000-0226 and Veuve Cliquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO D2000-0163).
Finally, regarding the fact that Respondent does not actively use the Domain Names, the Panel refers to the Telstra Case (Telstra Corporation Limited v. Nuclear Marshmallows, WIPO D2000-0003) pursuant to which also a passive holding of a domain name may amount to evidence of registration and use of a domain name in bad faith, in particular in connection with other elements which have been set out above.
In view of the above, the Panel concludes that there is sufficient evidence of the Domain Name being registered and used in bad faith.
In the light of the foregoing, the Panel concludes and decides that the Domain Names <remymartin.net> and <cointreau.net> shall be transferred to Complainants.
Dr. Thomas Legler
Dated: November 12, 2001