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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Adidas-Salomon AG v. Legueret Dominique

Case No. D2002-0107

 

1. The Parties

The Complainant in these administrative proceedings is Adidas-Salomon AG, a company organized under the laws of Germany, located at 1-2, Adi-Dassler Strasse, 8522 Herzogenaurach, Germany, hereinafter the "Complainant", and represented by Mr. Gregor S.P. Vos with offices at PO Box 7113, 1007 JC Amsterdam, The Netherlands.

The Respondent is Legueret Dominique, with address at Chemin du Vieux Pavé de Bruyères, Linas 91310, France, hereinafter the "Respondent".

 

2. Domain Name and Registrar

The domain name at issue is <addidas.com>, hereinafter the "Domain Name". The registrar is Network Solutions, Inc and the Domain Name was registered on March 13, 2000.

 

3. Procedural History

The WIPO Arbitration and Mediation Center, hereinafter "the Center", received the Complainant's complaint on January 31, 2002 by email and the hardcopy with the exhibits on February 4, 2002.

On February 4, 2002 the Center issued the Acknowledgement of Receipt of Complaint to the Complainant, its representative and to the Respondent.

On the same day, the Center transmitted via email to Network Solutions Inc a Request for Registrar Verification. On February 7, 2002 Network Solutions, Inc. transmitted via e-mail to the Center, its Verification Response, confirming that the Respondent is the current registrant of the Domain Name and that the Domain Name registration status is "Active".

On February 4, 2002 the Complainant's representative received an e-mail from a company called Darde Diffusion. In this e-mail, Darde Diffusion informed the Complainant that the Respondent was no longer an employee of Darde Diffusion and that it was willing to transfer the Domain Name to the Complainant.

On February 6, 2002 the Complainant sent the Center a Request for Suspension of this administrative procedure for a period not exceeding two weeks in order to allow the Respondent's previous employer, Darde Diffusion, to organize the transfer of the Domain Name.

On February 7, 2002 the Center issued by e-mail to the Complainant, the Respondent and to Darde Diffusion the Notification of Suspension of Administrative Proceeding confirming that the administrative proceedings are suspended until February 21, 2002, and precising that upon expiry of this date, the proceedings will be deemed automatically terminated unless the Center receives a Request from the Complainant to re-institute the proceedings.

The Domain Name having not being transferred to the Complainant by the expiry date of the suspension period, on February 21, 2002, the Complainant sent by e-mail to the Center a Request for re-institution of the proceedings. The same was received by fax on February 25, 2002.

On February 27, 2002, the Center verified that the complaint satisfies with the formal requirements compliance checklist.

On the same day the Center transmitted to the Respondent and to Darde Diffusion the Notification of Complaint and Commencement of the Administrative Proceeding and a copy of the complaint via post/courier, fax and email in accordance with the contact details provided by the registrar. This notification has also been copied by e-mail to the Complainant.

The Center advised the Respondent that the response was due by March 19, 2002.

On March 4, 2002 Darde Diffusion sent an email to the Center informing the Center that it had renounced to the Domain Name and therefore requested the Complainant to make an end to the proceedings.

This message was forwarded the same day by the Center to the Complainant.

On March 7, 2002 the Complainant sent the Center a second Request for Suspension of these proceedings for a period not exceeding two weeks so that Darde Diffusion would have the time to organize the transfer of the Domain Name.

On March 8, 2002 the Center issued by e-mail to the Complainant, the Respondent and to Darde Diffusion the Notification of Suspension of Administrative Proceeding confirming that the administrative proceedings are suspended until March 22, 2002, and precising that upon expiry of this date, the proceedings will be deemed automatically terminated unless the Center receives a request from the Complainant to re-institute the proceedings.

Between March 11 and 20, 2002, further information was exchanged between the Complainant, Darde Diffusion and the Center about the transfer of the Domain Name to the Complainant.

The Domain Name not having been transferred to the Complainant by the expiry of the suspension period, on March 22, 2002, the Complainant sent the Center a Request for re-institution of the proceedings.

On March 28, 2002 the Center informed the Complainant, the Respondent and Darde Diffusion that the proceedings were re-instituted and that the Respondent's response was due by April 10, 2002.

On April 9 and April 10, 2002 the Center received from Darde Diffusion a mere letter in which Darde Diffusion confirmed its willingness to transfer the Domain Name to the Complainant. Attached to this letter was a declaration signed by the Respondent on April 3, 2002, in which he transfers all his rights on the Domain Name to the Complainant.

On April 11, 2002 having received no formal response from the Respondent, the Center issued to the e-mail address of the Complainant, the Respondent and of Darde Diffusion a Notification of Respondent Default. No reply to the Notification of Respondent Default was received.

On April 22, 2002 in view of the Complainant’s designation of a single panelist, the Center invited Mr. Geert Glas to serve as a panelist and transmitted to him the Request for Declaration of Impartiality and Independence and a Statement of Acceptance.

Having received, on April 23, 2002, Mr. Geert Glas' Declaration of Impartiality and Independence and his Statement of Acceptance, the Center transmitted on April 26, 2002 to the Complainant, the Respondent and to Darde Diffusion a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Geert Glas was formally appointed as the Sole Panelist. On the same day, the Center transmitted to the Sole Panelist the Case File and the electronic format of the complaint.

The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules for Uniform Domain Name Dispute Resolution Policy, hereinafter "the Rules", and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy, hereinafter "the Supplemental Rules".

Having reviewed the communication records in the case file, the Administrative Panel finds that the Center has discharged its responsibility under Paragraph 2(a) of the Rules "to employ reasonably available means calculated to achieve actual notice to Respondent". The Administrative Panel shall issue its Decision based on the Complaint, the Policy, the Rules, the Supplemental Rules, the correspondence between Parties and the verifiable facts but without the benefit of any formal response from Respondent.

 

4. Factual Background

The Complainant is a company created in 1949. It owns a large number of registrations of the trademark "Adidas" for goods of classes 18, 25, 28. These registrations cover various countries including France as well as, among others Algeria, Austria, Benelux, Bulgaria, Czech Republic, Egypt, France, Germany, Hungary, Italy, Korea, Monaco, Morocco, Portugal, Romania, Spain, Slovakia, Switzerland, Tunisia and Vietnam.

It can be said that the Complainant's "Adidas" trademark has become through massive advertising and due to its huge popularity for athletic clothing, footwear, sport apparel and sport equipment, an internationally well-known mark.

The Respondent registered the Domain Name on March 13, 2000.

On January 4, 2002 the Complainant sent a letter to the Respondent urging him to transfer the Domain Name. This letter remained unanswered.

On January 31, 2002 the Complainant initiated these proceedings.

The website linked to the Domain Name is under construction.

 

5. Parties Contentions

a. Complainant

The Complainant contends that the Domain Name may be considered as confusingly similar to its "Adidas" trademark since several prior UDRP cases consider that a domain name consisting in a mere misspelling variation of a trademark is considered confusingly similar to this trademark.

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name since he does not use or make demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods and services and since the Complainant has not granted or otherwise consented to the registration of its trademark as a domain name by the Respondent. Moreover, the Respondent is not commonly known by the Domain Name and has never made any legitimate non commercial or fair use of the Domain Name.

The Complainant contends that the Respondent has registered the Domain Name in bad faith. It contends that the Respondent must have been aware that the sign contained in the Domain Name was a well-known trademark and that the Domain Name is registered primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to the Complainant or to a competitor of the Complainant for valuable consideration in excess of the Domain Name out-of-the pocket costs directly related to the Domain Name.

b. Respondent

While the Case File does not contain a formal response by Respondent, it does contain a declaration signed by Respondent on April 3, 2002, whereby his rights in the Domain Name are transferred to the Complainant.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

Applied to this case, Paragraph 4(a) of the Uniform Domain Name Dispute Resolution Policy, hereinafter "the Policy", directs that the Complainant must prove each of the following:

(1) that the Domain Name registered by the Respondent is identical or confusingly similar to the trademark in which the Complainant has rights; and,

(2) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and,

(3) that the Domain Name has been registered and is being used in bad faith.

There does seem to be some confusion as to who is the Respondent in this case. Indeed, Darde Diffusion, the former employer of Ms Legueret has intervened several times during these proceedings and attempted to organize the transfer of the Domain Name to the Complainant.

The fact remains however that the Domain Name has been registered in the personal name of Ms Legueret and that the Domain Name was never transferred to Darde Diffusion.

The Administrative Panel is therefore of the opinion that it should consider Ms Legueret, and Ms Legueret only, as Respondent in this matter and attach no legal consequences to the written statements made by Darde Diffusion. The Administrative Panel shall however take into consideration the declaration ("Attestation sur l'honneur") of April 3, 2002, by which Ms Legueret indicates to transfer her rights in the Domain name to the Complainant. While this statement was provided to the Center by Darde Diffusion, it is indeed signed by Ms Legueret.

a. Identity or confusing similarity

The Domain Name is confusingly similar to the Complainant's prior trademark "adidas".

There is indeed only one letter difference between the Domain Name and the invoked trademark.

The presence of two "d"s instead of a single one in the first syllable does not create any phonetic and hardly any visual difference.

The Administrative Panel therefore finds that the Domain Name is confusingly similar to the Complainant's trademark and finds that the requirement of Paragraph 4(a)(i) of the Policy is satisfied.

b. Rights or Legitimate Interests

The Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name corresponding to its trademark.

There is no indication that the Respondent has registered or used the name "addidas" as a trademark, or has ever been known by this name.

Moreover, by not filing a response, the Respondent has failed to invoke any circumstance which could indicate the existence of any right or legitimate interest he would have in the Domain Name.

Therefore the Panel finds that the requirement of Paragraph 4(a)(ii) of the Policy is satisfied.

c. Registration and Use in Bad Faith

The Complainant's "Adidas" trademark is famous and widely used as evidenced by the multiple trademark registrations and the popularity of its products. In view of the above described fame of the Complainant's trademark, the choice of the Domain Name by the Respondent could not result from a mere coincidence.

This mere coincidence is even less likely in view of the fact that the trademark "Adidas" misspelled or mistyped as "Addidas" which typing error would then lead the surfer straight to the website to be linked to the Domain Name.

As the Respondent could not have been unaware of the Complainant's trademark, by knowingly choosing a domain name which is hardly distinguishable from the Complainant's trademark, the Respondent intentionally created a situation which is at odds with the legal rights and obligations of the parties.

The website related to the Domain Name is under construction when the Administrative Panel is considering this case.

The Respondent was in default to respond in this proceeding, thereby failing to invoke any element or circumstance which could indicate the good faith nature of his registration and use of Domain Name. As a consequence, the Respondent has failed to demonstrate any bona fide use of the Domain Name.

The fact that the Respondent at first refused to transfer the Domain Name but then towards the end of the proceedings still signed a transfer declaration seems to confirm that the Respondent himself became aware of the lack of good faith surrounding his registration and use of the Domain Name.

Considering the lack of interest of the Respondent in the Domain Name, in the defense of his rights and interests as to the Domain Name and the above facts, the Administrative Panel finds that the Complainant has met its burden under section 4(a)(iii) of the Policy and that the Respondent has registered and is using the Domain Name in bad faith.

 

7. Decision

In light of the foregoing, the Administrative Panel decides that the Domain Name registered by the Respondent is confusingly similar to the Complainant's trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent’s Domain Name has been registered and is being used in bad faith.

Accordingly, pursuant to Paragraph 4(i) of the Policy, the Administrative Panel requires that the registration of the Domain Name <addidas.com> be transferred to the Complainant.

 


 

Geert Glas
Sole Panelist

Dated: May 14, 2002

 

Источник информации: https://internet-law.ru/intlaw/udrp/2002/d2002-0107.html

 

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