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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mr. Mika Häkkinen v. "For SALE"
Case No. D2001-1306
1. The Parties
Complainant: Mr. Mika Häkkinen
C/o Veikko Palotie & Co. Oy
Respondent: "For SALE"
5 Tpagrichnery St., #33
Yerevan, AM 375010
2. The Domain Name and Registrar
Domain Name: <mikahakkinen.net>
Registrar: Dotster, Inc.
3. Procedural History
The Complaint was received by WIPO by email on October 26, 2001, and in hardcopy form on October 30, 2001. WIPO has verified that the Complaint satisfies the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.
The Complaint was properly notified in accordance with the Rules, paragraph 2(a). Dotster, Inc. has confirmed that <mikahakkinen.net> ("the Domain Name") was registered through Dotster, Inc. and that "For SALE" is the current registrant. The Registrar has further confirmed that the Policy is applicable to the Domain Name.
On November 13, 2002, WIPO notified the Respondent of the Complaint in the usual manner and informed the Respondent inter alia that the last day for sending its Response to the Complainant and to WIPO was December 3, 2001. No Response was received. On December 10, 2001, WIPO issued a Notification of Respondent Default, but the hard copy version was returned from the Respondent’s postal address on December 21, 2001. The Panel has verified from the postal receipt that the document was properly addressed.
On December 11, 2001, the Complainant submitted further evidence to WIPO by email.
The Panel was properly constituted. The undersigned Panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
No further submissions were received by WIPO or the Panel, as a consequence of which the date scheduled for the issuance of the Panel’s Decision is January 22, 2002.
4. Factual Background
The Complainant is Mika Häkkinen (frequently spelt Hakkinen) the well known Formula One Grand Prix driver. For present purposes the Panel does not distinguish between the two spellings of the Complainant’s surname.
The Complainant is the registered proprietor of various trade mark registrations of his name including, for example, US trade mark registration number 2386902 dated September 19, 2000, in classes 3, 4, 12, 14, 16, 18, 21, 25, 28, 32, 33 and 41.
The Respondent registered the Domain Name on July 4, 2001.
5. Parties’ Contentions
The Complainant contends that the Domain Name is identical or confusingly similar to his name and trademark.
The Complainant points out that the Respondent’s name according to the register is "For Sale". So far as the Complainant is aware, the Respondent has never been commonly known by the name Mika Hakkinen. The Complainant states that he has never in any way authorised the Respondent to use his name and trademark.
The Complainant observes that there is little at the website <mikahakkinen.net>. There is nothing on the site evidencing a reason for selection of the Domain Name. It simply contains links to a site (at <nameregister.com>) enabling offers (of $550 and above) to purchase the Domain Name to be dealt with and a link to a pornographic site. The domain name, <nameregister.com> is owned by an anonymous registrant, having the same postal address as the Respondent. At all events, there is nothing there to indicate that the Respondent is using or planning to use the Domain Name in connection with any bona fide offering of goods or services.
The Complainant contends that the Respondent registered the Domain Name for the purpose of selling it to the Complainant for a valuable consideration in excess of the costs of registration. In support of this, the Complainant points to the Respondent’s name "For Sale" and the link on the website which is referred to above. Additionally, or alternatively, the Complainant argues that the Domain Name was registered in violation of paragraph 4(b)(iv) of the Policy on the basis that the Respondent is trying for commercial gain to attract visitors to a pornographic website linked to the Domain Name. The objective being to attract to that pornographic site visitors intending to visit a site associated with the Complainant.
As indicated above, on December 11, 2001, the Complainant submitted further evidence to WIPO. This evidence was available to the Complainant prior to the date of the Complaint and should have been included in the Complaint. No reason has been given as to why the Panel should allow the new evidence in out of time. Accordingly, the Panel has ignored the further evidence.
The Respondent has not responded.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that
(i) The Domain Name is identical or confusingly similar to a trade mark 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 Domain Name has been registered and is being used in bad faith.
How does the Respondent’s failure to respond impact on this administrative proceeding? By virtue of Rule 14(b) the Panel is entitled to draw such inferences as it deems appropriate from the failure to respond.
The Complaint contains allegations (unsupported by any documentary evidence) as to what happened at the date of the Complaint if one sought to visit the website at <mikahakkinen.net>. The Complainant alleges that visitors to the site at that time were provided with an invitation to buy the Domain Name ("click here to buy this domain name"). The Complainant alleges that this linked to a site at <nameregister.com> inviting offers subject to the caution "any offer below $550 will be ignored".
The Panel has visited the site currently connected to the Domain Name. While it appears to be a site having no connection whatever with the Complainant, it is a very different page and does not feature any of the matters referred to above.
A consequence of the Respondent’s failure to respond to the Complaint is that there is no contradiction of the Complainant’s allegations. The Panel sees no reason to doubt the Complainant’s allegation as set out above and accepts them as accurately stating the facts pertaining the date of filing of the Complaint. The fact that the Respondent’s name is "For Sale" provides substantial support for the Complainant’s version of events.
Identical or confusingly similar
The Domain Name comprises the Complainant’s name and trademark save that the Complainant’s personal name includes two dots over the "a" in his surname and the Domain Name features the generic .net suffix.
The Panel finds that the Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights.
Respondent’s Rights or Legitimate Interests
While the obligation is on the Complainant to prove all the elements of paragraph 4(a) of the Policy, paragraph 4(a)(ii) calls for the Complainant to prove a negative. Accordingly, for the purposes of paragraph 4(a)(ii) it is sufficient for the Complainant to make out a prima facie case and, that having been done, the obligation is then on the Respondent to answer that prima facie case.
The Complainant’s case is that the Respondent is not known as Mika Häkkinen and has never been licensed or otherwise authorised to use the Complainant’s name. Nor, so far as the Complainant is aware, has the Respondent ever traded under the name Mika Hakkinen. The website contains nothing having any bearing on the Complainant or the name of the Complainant. The Complainant observes that the Respondent is named "For Sale" and the website connected to the Domain Name at the date of the Complaint invited and facilitated offers to purchase the Domain Name for a sum in excess of the Respondent’s out of pocket expenses. In the meantime, the Domain Name linked to a pornographic website and attracted visitors to that site by deception, those visitors intending to visit a site associated with the Complainant.
The Panel finds that the Complainant has made out a very strong prima facie case under this head.
In the absence of any Response and in the absence of any obvious reason for supposing that the Respondent might have rights or legitimate interests in respect of the Domain Name, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
The facts strongly support the Complainant’s contention that the Respondent’s primary aim in registering the Domain Name was for the purpose of selling it to the Complainant for a sum in excess of the Respondent’s out of pocket expenses and the Panel so finds.
The link to the pornographic site was probably put in place primarily with a view to encouraging the Complainant to make an offer for the Domain Name sooner rather than later.
The Panel finds that the Domain Name was registered in bad faith and is being used in bad faith within the meaning of paragraph 4(a)(iii) and paragraph 4(b)(i) of the Policy.
In light of the foregoing findings namely that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights and that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Domain Name was registered in bad faith and is being used in bad faith, the Complaint succeeds.
The Panel directs that the Domain Name, <mikahakkinen.net>, be transferred to the Complainant.
Dated: January 11, 2001