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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société des Produits Nestlé SA v. DRCT Limited
Case No. D2001-1213
1. The Parties
The Complainant is Société des Produits Nestlé SA, a company incorporated under the laws of Switzerland and registered in the Commercial Register in 1800 Vevey, Switzerland with its principal place of business located at Avenue Nestlé 55, 1800 Vevey, Switzerland.
The Respondent is, according to contact details from the Registrant’s Whois database, DRCT Limited, 5 – 13 Glendower Place, South Kensington, London SW7 3DU, UK.
2. The Domain Name and Registrar
The domain name at issue is <crosseandblackwell.com>, registered with Network Solutions, Inc., 505 Huntmar Park Drive, Herndon, Virginia, 20170, U.S.A., on September 9, 1999.
3. Procedural History
A complaint was submitted electronically to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on October 5, 2001. Its receipt was acknowledged to the Complainant by the WIPO Center on October 8, 2001, and it was there received in hardcopy form on October 24, 2001. On October 9, 2001, the WIPO Center requested and on October 10, 2001, received a Registrar Verification issued by Network Solutions Inc. Payment of the administration fee was duly received. After Formal Compliance Review, verifying that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Uniform Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") and the World Intellectual Property Organization Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"), including some correspondence between the WIPO Center and the Complainant between October 17 – 30, 2001, a Notification of Complaint and Commencement of Administrative Proceeding was issued on October 31, 2001, followed by a Response Default Notification on November 22, 2001.
The Complainant chose to have the dispute decided by a single-member Administrative Panel. No response to the complaint has been submitted, the Panel was properly constituted on December 5, 2001, the formal date set for commencement of this administrative proceeding. It was founded on a Statement of Acceptance and Declaration of Impartiality and Independence dated December 4, 2001. A Notification of Appointment of Administrative Panel and Projected Decision Date was properly issued on December 5, 2001, indicating as single panelist Professor Gunnar Wilhelm Gösta Karnell.
On December 5, 2001, the WIPO Center forwarded to the Panel by courier mail the relevant documents, which were received on December 10, 2001. Pursuant to Rule 5 (b), in the absence of exceptional circumstances, the Panel is required to forward its decision by December 19, 2001.
4. Factual Background
In accordance with Paragraph 3 (b) (xiii) of the Rules, the Complainant has agreed to submit, only with respect to any challenge that may be made by the Respondent to a decision by the Administrative Panel to transfer or cancel the domain name that is the subject of its complaint, to the jurisdiction of the courts where the Respondent is located, as shown by the address given for the domain name holder in the concerned registrar’s Whois database at the time of submission of the complaint to the WIPO Center.
The Registrar Verification states that the Uniform Policy applies to the domain name at issue.
5. Parties’ Contentions
A. Complainant (short summary; and request for remedy)
1) The Respondent’s domain name <crosseandblackwell.com> is confusingly similar if not identical with Complainant’s mark CROSSE & BLACKWELL. Existing differences are of no significance to the issue at hand.
The Complainant’s rights to the mark go back to its acquisition of the UK based company Crosse & Blackwell in 1960. Crosse & Blackwell is now a division of Nestlé UK Ltd., the UK affiliate and licensee of the Complainant. The CROSSE & BLACKWELL brand is well established since the early 19th century; its first British trademark registration is dated November 17, 1925 under Reg. No. 464405 for a variety of foodstuffs in classes 29, 30, 31 and 32 as well as food essences in classes 2 and 3; later registrations covering also goods and services in classes 35, 41 and 42. There is a multitude of trademark registrations and applications for CROSSE & BLACKWELL in countries all around the world. In the years between 1996 and 2000 Complainant spent more than GBP 36 million for promoting its CROSSE & BLACKWELL products in various print and television media. In the year of registration of Respondent’s domain name, the media coverage for the products accounted for a total of GBP 11.7 million.
2) The Respondent has no rights or legitimate interest in the domain name <crosseandblackwell.com>. The domain name has been registered without any authorisation from the Complainant.
Respondent’s web page is still under construction and not yet active. The Respondent has, so far, not made any known preparations to use the domain name in connection with a bona fide offering of goods and services, in spite of the fact that the web site has been "under construction" for more than two years. The Respondent has not been commonly known by the domain name as an individual, business or other organisation. Complainant has tried to reach the Respondent by diverse means and media, including e-mail to the e-mail address registered as the Respondent’s administrative and billing contact, without receiving any answer.
3) The Respondent has registered the domain name <crosseandblackwell.com> and uses it in bad faith.
There are strong indications that Respondent is a cyber squatter, willing to sell to the highest bidder. The choice of the name cannot be coincidental. Only the respective division of the Complainants UK affiliate is known by the name Crosse & Blackwell. The combination of words is unique. It is clear that the Respondent has registered the domain name because of its great notoriety as a brand for certain food products. This is in line with the fact that Respondent has in the past, without any rights thereto, registered several domain names that include trademarks belonging to third parties. Among them are domain names including famous names and figures such as <arsenelupin.com>, <lady-di.com> and <asterixandobelix.com>, all registered in September 1999. All connected web sites are under construction.
4) The Complainant has requested, in accordance with Paragraph 4 i. of the Uniform Policy, that the Administrative Panel transfer the domain name <crosseandblackwell.com> to the Complainant.
There has been no response from the Respondent.
6. Discussion and Findings
On the basis of the Complainant’s submissions and evidence introduced by the Complainant, and in particular with regard to the content of the relevant provisions of the Uniform Policy (paragraph 4. a. to c.), the Administrative Panel considers that the case does not deserve any lengthy arguments on its part.
A. The domain name <crosseandblackwell.com> is confusingly similar to the registered trade mark CROSSE & BLACKWELL, notwithstanding the added gTLD .com and the fact that the name contains the written out conjunction "and" between the words "crosse" and "blackwell" instead of an apersand.
B. Evidence provided by the Complainant shows that the Respondent has no rights, nor any legitimate interest, in respect of its domain name. It is evident to the Panel that the registration forms part of an intentional abuse of the domain name system on the part of the Respondent , acting so as to gain financially from the transfer of domain name registrations to trademark owners and others and/or to disrupt legitimate business activities.
C. The Respondent has been shown to have registered the domain name in bad faith and to misuse the domain name system to the detriment of legitimate trade mark right holders, in the present case the Complainant, in ways described in the Uniform Policy under article 4 b. (i) and (ii). The Respondent’s continued possession of the registration of the domain name <crosseandblackwell.com>, as of a number of others within what can only be seen as a general "cyber squatter scheme", constitutes conclusive evidence that the name is being used in bad faith. An attitude of "wait and see" or ostrich-like policy of extended and current inactivity on the part of the Respondent – not responding to the complaint – does not deserve legal recognition under the circumstances evidenced in the case.
D. The Administrative panel concludes that all elements mentioned in the Uniform Policy under article 4 a. (i)-(iii) are present in the case.
The Administrative Panel requires that the registration of the domain name <crosseandblackwell.com> be transferred to the Complainant.
Dated: December 11, 2001