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ADMINISTRATIVE PANEL DECISION
Klocke Verlags - und Marketing Gesellschaft v Markus Busch
Case No. D2001-1316
1. The Parties
The Complainant is Klocke Verlags - und Marketing Gesellschaft, Thomas Klocke, Hoefeweg 62a, D-33619 Bielefeld, Germany.
The Respondent is Markus Busch, HIDEAWAYS/INFO, Alfred Escher Strasse 76, CH 8002 Zürich, Switzerland.
2. The Domain Name and Registrar
The Domain Name is <hideaways.info>.
The Registrar is Register.com, Inc.
3. Procedural History
The original Complaint was received by WIPO in hardcopy form on October 31, 2001, and by e-mail on November 27, 2001. On November 13, 2001, WIPO issued a Complaint Deficiency Notification. The Amended Complaint ("the Complaint") was received by WIPO by email on November 16, 2001, and in hardcopy form on November 21, 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). Register.com, Inc., has confirmed that <hideaways.info> ("the Domain Name") was registered through Register.com, Inc., and that M. Busch is the current registrant. The Registrar has further confirmed that the Policy is applicable to the Domain Name.
On November 28, 2001, 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 18, 2001. WIPO received a Response by email on November 29, 2001, and in hardcopy form on December 3, 2001. WIPO issued a Response Deficiency Notification on November 30, 2001, and on December 9, 2001, the Amendment to the Response was received by WIPO by email, and in hardcopy form on December 12, 2001.
On November 30, 2001, the Complainant lodged a further submission in response to the Response, but the Panel was provided with no explanation as to why this further submission should be allowed in to this administrative procedure and in consequence the Panel has not considered it.
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 3, 2002.
4. Factual Background
The Complainant is the publisher of an up-market holiday magazine entitled HIDEAWAYS. The magazine is published in Germany but is directed to an international readership in that the text is in both German and English. The Complainant is the proprietor of German and International registrations for the mark HIDEAWAYS in Class 16 for, inter alia, journals. The Complainant claims first use of the trade mark from June 16, 1993.
The Respondent is based in Switzerland and trades under the trading name of HIDEAWAYS/INFO. The Respondent registered the Domain Name on September 19, 2001 and launched a website at < www.hideaways.info> in October 2001. That site connects to a variety of sites providing information on hotels, resorts, holiday packages and the like.
5. Parties’ Contentions
Apart from identifying the Complainant, its magazine (which it categorises as well known and international) and its trade mark registrations, the Complainant has very little to say in the matter. The substance of the Complaint comprises three paragraphs and reads as follows:
"The Domain Name hideaways.info should be used for the online presentation of the worldwide well known HIDEAWAYS magazine. The Domain Name is identical to the trade mark in which the [Complainant] has rights.
The Domain Name seems to be registered in order to prevent the [Complainant] from reflecting the trade mark HIDEAWAYS in the corresponding Domain Name and web site hideaways.info.
The Respondent is using the Domain Name and the web site hideaways.info in a not corresponding (sic) reflection to the Complainant’s trade mark".
The essence of the response is that the Domain Name was selected for running the online business, which is there for all to see at <www.hideaways.info> ‘Hideaway’ is a dictionary word and there are many others using it for the purpose of promoting hideaways.
The Respondent accepts that he has no legal rights in the name HIDEAWAYS. He points out that he was the first to register the Domain Name in the same way that others were the first to register <hideaways.com> and <hideaways.net> and the Complainant has registered <hideaways.de>. He denies that he has no interest in respect of the Domain Name. He says that the Domain Name is of central importance to his business and that he has invested already a considerable amount of money to promote the Domain Name.
The Respondent denies that he registered the Domain Name in bad faith. He says that it was carefully chosen for the purpose of selling not domains but hideaways and he says that he is already achieving successful results.
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.
Identical or Confusingly Similar
The Domain Name comprises the Complainant’s trade mark with the addition of the generic suffix ‘.info’. There appears to be no issue between the parties that the Domain Name is identical or confusingly similar to the Complainant’s trade mark and the Panel so finds.
Respondent’s Rights or Legitimate Interests
The Panel is satisfied that since at least October 2001, the Respondent has traded as Hideaways/Info and is also fully satisfied that the business conducted through the Domain Name is a genuine business.
The Panel notes that there is no evidence whatsoever to suggest otherwise. The mere existence of the Complainant’s magazine and trade mark registrations cannot, of themselves, be enough.
Accordingly, the Panel finds that the Respondent has demonstrated that it has rights or legitimate interests in respect of the Domain Name within the meaning of paragraphs 4(a)(ii) and 4(c) of the Policy.
In light of the finding under the previous heading it is not strictly necessary for the Panel to address the issue of bad faith because the Complaint has failed.
However, to support the bad faith claim, the Complainant says "the Domain Name seems to be registered in order to prevent [the Complainant] from reflecting the trade mark HIDEAWAYS in the corresponding Domain Name and web site hideaways.info". The Panel assumes that the Complainant is seeking to invoke paragraph 4(b)(ii) of the policy which reads as follows:
"You have registered the Domain Name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct".
The Complainant has put nothing before the Panel in the way of evidence beyond the existence of the magazine and the existence of the trade mark registrations. The Respondent’s explanation for its selection of the Domain Name is entirely rational and there is nothing before the Panel to suggest that the Respondent had the Complainant in mind when it registered the Domain Name. So far as paragraph 4(b)(ii) of the policy is concerned, still less is there any suggestion that the Respondent has engaged in a pattern of such conduct.
The Complainant also states "The Respondent is using the Domain Name and the web site hideaways.info in a not corresponding (sic) reflection to the Complainant’s trade mark". If the Complainant means by this that the Respondent’s use of the Domain Name constitutes infringement of the Complainant’s trade mark registrations, that may be so (the Panel does not express a view in the matter), but that is a matter to be determined by the courts under the trade mark law of the relevant jurisdiction. It is not a matter to be determined under the Policy.
The Panel finds that the bad faith claim fails.
The Complaint is dismissed.
Dated: January 3, 2002