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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Harrods Limited v. Walter Wieczorek

Case No. DTV2001-0024

 

1. The Parties

Complainant is HARRODS LIMITED, a UK private company limited by shares, with its principal place of business located in London, England ("Complainant"). Complainant's authorized representative is Mr. Jeremy Dickerson of Complainant's solicitors, Hammond Suddards Edge, with offices in London, England.

Respondent is WALTER WIECZOREK, with address in Kielce (Daleka), Poland ("Respondent").

 

2. The Domain Name and Registrar

The domain name at issue is <harrods.tv> ("the Domain Name"). The Registrar is DotTV Corporation International, Glendon Avenue, Los Angeles, California, United States of America ("the Registrar").

 

3. Procedural History

The Complaint in accordance with the Uniform Domain Name Dispute Resolution Policy ("the Complaint") was received in hardcopy by the World Intellectual Property Organization Arbitration and Mediation Center ("the WIPO Center") on September 24, 2001. The Complaint was submitted electronically on October 2, 2001. An Acknowledgement of Receipt was sent by the WIPO Center to Complainant by e-mail on September 26, 2001. In the Complaint, Complainant lists (paragraph 7) Respondent’s above mentioned postal address and two e-mail addresses: "nuface4u@hotmail.com" and "delamax@hotmail.com". The first e-mail address was derived from the administrative and technical contact details as supplied by the Registrar, the second e-mail address became known to Complainant as Respondent sent an e-mail from this address to it on May 12, 2001.

On September 28, 2001, a Request for Registrar Verification was transmitted to the Registrar. On the same day, the Registrar confirmed by e-mail that the Domain Name is registered with the Registrar and that Respondent is the current registrant of the Domain Name.

On October 3, 2001, a Notification of Complaint and Commencement of Administrative Proceedings ("the Commencement Notification") was transmitted to Respondent, setting a deadline on October 23, 2001, by which Respondent could file a Response to the Complaint. The Commencement Notification was transmitted by courier to the above mentioned postal address and to the e-mail address "nuface4u@hotmail.com".

Respondent did not file a Response before that date, and on October 25, 2001, the WIPO Center sent a Notification of Respondent Default to Respondent.

On November 5, 2001, the WIPO Center sent a Notification of Appointment of Administrative Panel and Projected Decision Date by email to the parties, in which Wolter Wefers Bettink was appointed as the Sole Panelist.

On November 20, 2001, the Panel asked the WIPO Center to also send the Commencement Notification to Respondent’s e-mail address "delamax@hotmail.com", as this e-mail address was provided by the Complainant but not used by the WIPO Center to transmit the Commencement Notification, while the Commencement Notification to Respondent’s other e-mail address "nuface4u@hotmail.com" bounced, and it is not certain whether the Commencement Notification sent by courier has reached Respondent.

On November 22, 2001, the WIPO Center sent the Commencement Notification to Respondent’s e-mail address "delamax@hotmail.com" setting a new deadline on December 11, 2001, by which Respondent could file a Response to the Complaint. Respondent, once again, has not filed a Response before this date.

 

4. Factual Background

Since about 1849, the Complainant and its predecessors have operated the Harrods department store in the Knightsbridge area of London, England.

Complainant has used, registered or applied to register the mark "HARRODS" ("the HARRODS Mark") in many countries around the world for a wide variety of goods and services.

Complainant owns and uses the domain name <harrods.com>, providing access to a website that offers Harrods merchandise for sale. Complainant also owns the domain name <harrodsonline.com>, but this domain name currently does not revolve to a website.

Respondent registered the Domain Name on June 18, 2000.

In an e-mail sent to Ms. Linda Gibbons of the Complainant's solicitors on May 12, 2001, apparently in reply to a request to transfer the Domain Name, Respondent stated:

"Dear Mrs. Gibbons

We will be more than happy to transfer the domain. Please provide us with the details how would you wish to be done.

We also would like to let you know that we got 2 more domains that will be interest to you client.

We looking forward to hear from you

W. Wieczorek"

The Domain Name currently does not revolve to any website operated by Respondent. The corresponding URLs (http://www.harrods.tv and http://harrods.tv) generate a message from the Registrar, informing the visitor that the domain name has been registered, listing a number of similar names which are still available for registration, and supplying a service to search for other available domain names in the .tv ccTLD.

 

5. Applicable Rules

Paragraph 4(a) of the Policy directs that Complainant, to obtain the requested remedy, must prove each of the following:

(i) that the domain name in issue is identical or confusingly similar to Complainant's trademark, and

(ii) 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.

 

6. Parties’ contentions

Complainant states that the HARRODS Mark is (world) famous, has acquired a substantial goodwill and has come to be and is recognised as an indicia of origin exclusively identified with Complainant.

Complainant contends that Respondent has registered other "famous" domain names.

The grounds for the Complaint are:

1. Complainant states that the Domain Name is identical to the HARRODS Mark. The impression given to web users is that Respondent's Domain Name and the HARRODS Mark are one and the same, that is, that any associated goods or services are provided, sponsored, endorsed or affiliated with Complainant.

2. Complainant states that Respondent has no rights or legitimate interests in respect of the Domain Name, as he has not used or made any demonstrable preparations to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services. In view of the fame of Complainant's HARRODS Mark, Respondent could not make a legitimate non-commercial or fair use of the Domain Name. Respondent is, according to Complainant, merely squatting on the subject name.

3. Complainant states that the Domain Name was registered and is being used in bad faith, as Respondent's registration of numerous domain names demonstrates a bad faith pattern of registering domain names featuring well known trademarks of others, which justifies the conclusion that Respondent is in the business of acquiring and selling domain names for profit.

Complainant also states that when a registrant could not use a domain name without violating a trademark holder's right under applicable law, bad faith exists even if the registrant has done nothing but register the name. Furthermore, Complainant states that bad faith must also be found if it is unlikely that a registrant would have selected the domain name without knowing of the reputation of the mark used in the domain name.

As Respondent has not filed a Response, Complainant’s contentions have not been disputed.

 

7. Discussion and Findings

a. Trademark rights

Complainant has, in Annex C to the Complaint, provided sufficient evidence of its rights to the HARRODS Mark.

The Panel considers the HARRODS Mark to be a well-known mark. Complainant and its predecessors have been using the HARRODS Mark for over 150 years, during which period the mark has been able to build a reputation (both inside and outside the United Kingdom). According to Complainant its Knightsbridge department store serves approximately 35,000 customers each business day, and the department store has become an attraction for tourists visiting London (it is mentioned in many travel guides on London, published in different countries and languages). Under the UDRP other Panels have found the HARRODS Mark to be a well-known or famous mark, see Harrods Limited v. AB Kohler & Co., WIPO Case No. D2001-0544 and Harrods Limited v. Harrod’s Closet, WIPO Case No. D2001-1027.

b. Identical or confusingly similar

The Domain Name consists of a combination of the word "harrods" (identical to the HARRODS Mark, in which the Complainant holds rights), and the suffix ".tv". As this suffix only indicates that the Domain Name is registered in the .tv ccTLD, the Panel finds that the Domain Name is identical to Complainant's HARRODS Mark.

c. Rights or legitimate interests

By not submitting a Response, Respondent has failed to invoke any circumstances, which could demonstrate any right or legitimate interest in the Domain Name.

Furthermore, considering that Respondent currently does not use the Domain Name (it does not revolve to a website or, as far as the Panel can deduce, some other on-line presence of Respondent), although he registered the Domain Name 18 months ago, it cannot reasonably be considered that Respondent would be able to bring evidence of any of the circumstances described in Paragraph 4(c) of the Policy or other circumstances which could demonstrate any right or legitimate interest in the Domain Name.

The Panel, therefore, finds that Respondent has no right or legitimate interest in the Domain Name.

d. Bad faith

Complainant states that Respondent has registered numerous domain names featuring the well known trademarks of others. The evidence supplied by Complainant consists of (Annex E to the Complaint) the e-mail of May 12, 2001, sent by Respondent to Complainant's solicitors, stating that he had two more domains that would be of interest to Complainant.

In several decisions under the UDRP Panels have found that ownership of several domain names which comprise the names or marks of well known business entities suggests an intent to profit from the activities of others (e.g. by selling the domain names for valuable consideration in excess of registration costs, see paragraph 4 (b)(i) of the Policy) and therefore a registration and use of those domain names in bad faith. See, e.g., Stella D'Oro Biscuit Co., Inc. v. The Patron Group, Inc., WIPO Case No. D2000-0012; Nabisco Brands Co. v. The Patron Group, Inc., WIPO Case No. D2000-0032; Parfums Christian Dior v. 1 Network, Inc., WIPO Case No. D2000-0022; and J.P. Morgan v. Resource Marketing, WIPO Case No. D2000-0035.

In this case however, Complainant has not supplied evidence of such a pattern of registration of "famous" domain names. The mere remark by Respondent in his May 12, 2001 e-mail, that he has more domains that will be of interest to Complainant, could suggest that Respondent has registered other domain names which may (also) be identical or confusingly similar to the HARRODS Marks, but, as any further information is absent, does not constitute a pattern of registration that suggests an intent to profit from the activities of others, thus demonstrating a bad faith registration and use of the Domain Name.

However, given the HARRODS Mark’s reputation, the Panel finds it unlikely that (i) Respondent could commercially use the Domain Name without violating Complainant’s trademark right, and (ii) Respondent would have selected the Domain Name without knowing of the reputation of that mark. Respondent has failed to bring forward any circumstances indicating a (future) non-commercial use, a (future) commercial use which would not infringe the HARRODS Mark, or his unawareness of the HARRODS Mark at the time of registration of the Domain Name.

These circumstances justify the conclusion that both the registration and the use of the Domain Name have been made in bad faith. Likewise, in Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028, the Panel concluded that, as it would be difficult, perhaps impossible, for the Respondent to use the domain name as the name of any business, product or service for which it would be commercially useful without violating the Complainant’s rights, and, in the absence of any claim by the Respondent that he intended to do otherwise, it was a permissible inference to conclude that paragraph (4)(b)(i) (Respondent has primarily registered the domain name to sell it at a profit) was applicable to the situation. Also in Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163, the Panel concluded that the domain name was so obviously connected with such a well-known product (trademark) that its very use by someone with no connection with the product (trademark holder) suggested bad faith.

The Panel, therefore, concludes that there is sufficient evidence that Respondent's registration and use of the Domain Name have been made in bad faith.

 

8. Decision

On the basis of the foregoing, the Panel decides that Complainant has provided the required evidence for the requested order transferring the domain name from Respondent to Complainant. Accordingly, pursuant to Paragraph 4(i) of the Policy, the Panel orders the registration of the Domain Name <harrods.tv> be transferred to Complainant.

 


 

Wolter Wefers Bettink
Sole Panelist

Dated: December 18, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2001/dtv2001-0024.html

 

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