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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Flügger A/S v. Pierre-Yves Gautschi
Case No. D2002-0337
1. The Parties
The Complainant is Flügger A/S, Rødovre, Denmark.
The Respondent is Pierre-Yves Gautschi, Hundslund, Denmark.
2. The Domain Name and Registrar
The domain name at issue is <flügger.com> (<bq--abtgz7dhm5sxe.com>).
The Registrar is Ascio Technologies Inc., Copenhagen, Denmark.
3. Procedural History
A Complaint was submitted to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on April 8, 2002. The WIPO Center sent an Acknowledgement of Receipt of Complaint to the Complainant on April 15, 2002.
On April 16, 2002, a Request for Registrar Verification was transmitted to the Registrar, and on April 17, 2002, the Registrar confirmed that it was in receipt of the Complaint. The Registrar forwarded at the same time the requested WHOIS details.
A Formal Requirements Compliance Checklist was completed by the WIPO Center and the Panel has independently determined and agrees with the assessment of the WIPO Center that the Complaint is in compliance with the requirements of the Uniform Domain Name Dispute Resolution Policy ("the Policy") and the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules"), as approved by ICANN on October 24, 1999, and the WIPO Supplemental Rules for Uniform Domain Dispute Resolution Policy (the "WIPO Supplemental Rules"), in effect as of December 1, 1999. The Complainant paid on time and in the required amount the fees for a single member Panel.
On April 18, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent by the required means, setting a deadline of May 8, 2002, by which the Respondent could file a Response to the Complaint.
On May 6, 2002, the WIPO Center received the Response and sent an Acknowledge-ment to that effect to the Respondent.
The WIPO Center then invited Mr. Knud Wallberg to serve as Panelist in the case, and transmitted to him a Statement of Acceptance and Request for Declaration of Impartiality and Independence.
Having received the Statement of Acceptance and Declaration of Impartiality and Independence from Mr. Knud Wallberg, the WIPO Center transmitted on May 14, 2002, to the parties a Notification of Appointment of Administrative Panel and the Projected Decision Date.
The Panel finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and WIPO Supplemental Rules.
Both parties have sent further informal e-mail communication to the WIPO Center and the other party without being required or permitted to do so. The Panel has decided to disregard those submissions.
The Administrative Panel has thus issued its Decision based on the Complaint, the Response, the Policy, the Rules, and the WIPO Supplemental Rules.
4. Factual Background
The Complainant is a Danish company specialized in producing painting and interior decoration products for professional and private use. The Complainant's main business markets are Denmark, Sweden and Norway and with approx. 300 shops in Scandinavia, the Complainant is considered one of Scandinavia's leading producers and manufacturers within this line of business.
The Complainant has used the company name Flügger A/S since 1971 and went public in 1983 at the Copenhagen Stock Exchange. Historically the Complainant used to be an affiliated company of the German J.D Flügger GmbH.
For many years the two companies have co-existed both using the company name Flügger. However, trademark-wise the parties have agreed that the Complainant is the sole party to market their products under the name of Flügger. To the best of the Complainant's knowledge no other company is using the name Flügger.
The Complainant has 10 registered trademarks, including a European Community Trademark no 283507, all of which are variants of FLÜGGER. All trademarks are registered primarily in international classes 1, 2, 3, 8, 16, 19, 21, 24, 25 & 27. Due to extensive use of the trademark for several decades Complainant claims that the mark has become well-known and holds substantial reputation, especially in Denmark.
The Complainant has among many domain names registered the following; flugger.dk, flügger.net, flügger.org and flugger.biz.
Respondent is a private citizen who is allegedly engaged in different business activities as explained below.
The contested domain name was registered by Respondent on February 28, 2001.
5. Parties’ Contentions
In March 2001 the Complainant became aware of Respondent's registration of the contested domain name. By letter of March 5, 2001, Complainant requested transfer of the domain.
Respondent replied to this informing that his attorney was investigating the matter, that he had been contacted by other international companies and private persons using the name Flügger.
Having received no reply, Complainant later reminded Respondent by letter in which they also quested the legitimate interest of Respondent to the contested domain name.
By letter of May 4, 2001 Respondent reverted to Complainant informing that he had received several offers from the previously mentioned international companies in relation to the contested domain name.
Complainant in their answer to this referred to their extensive trademarks rights in Europe and Asia. Further they pointed out that they would oppose any possible infringement by third party.
Since this correspondence Complainant received no reaction from Respondent.
By letter of March 1, 2002 Respondent was again addressed in relation to the contested domain name and was requested to transfer said domain name by signing an enclosed transfer declaration. Respondent was later reminded of the matter.
On March 18, 2002 Respondent reverted by e-mail informing that he had registered the domain name for personal use and that he was of the opinion that after a 60 day-period any domain is open to public registration.
Based on the above factual grounds Complainant is of the opinion that Respondent's registration of the contested domain name constitutes an infringement of the intellectual property rights of the Complainant, and that the Respondent has proved no rights or legitimate interests to the contested domain name. Further Respondent has shown no bona fide intentions of offering of goods or services, nor is he making a legitimate non-commercial or fair use of the domain name by showing any business or personal plans for use. Thus the domain name could eventually mislead consumers and tarnish the trademark of the Complainant.
Respondent initially informed that he has acquired the domain for personal use. However, Respondent has not claimed to be commonly known by the contested domain name.
As to the question of bad faith Complainant states that it must be clear to the Respondent as both parties are domiciled in Denmark that the contested domain name can only refer to the Complainant due to the well-known and established status of Complainant.
From the above listed correspondence it is evident that Respondent indirectly pressurizes Complainant by indicating possible transfer of the contested domain name to international companies or private persons, including possible competitors of the Complainant. In this connection it must be pointed out that to the best of knowledge of Complainant, only Complainant and the German Company J.D Flügger use the name FLÜGGER as a business feature.
According to the Policy and prior cases, e.g. D2000-0003, the stating of bad faith is not limited to positive actions. As the contested domain name is part of a multilingual test-bed it is not technically possible for the Respondent to use the domain name in the sense of pointing to an active website or similar. However, the Respondent's registration prevents Complainant as trademark owner from reflecting the mark in a corresponding domain name.
Moreover, Respondent has not in any way been participating in documenting any possible bona fide use of the contested domain name.
Therefore, the Complainant finds that Respondent has registered and used the domain name in bad faith.
In the Response the Respondent informs that he has developed a business concept with import and export of used agricultural machines for the markets in Eastern and Northern African countries as well as in Turkey. By targeting these markets the use will not collide with the trademark rights of the Complainant. The machines will be bought in Germany and the German speaking part of Switzerland and Austria.
The coming company will be located in Flüelen Switzerland, and the name Flügger derives from Flüelen Gross Geräte, where gross geräte designates the type of activities of the company.
Respondent presently lives in Denmark but will move to Switzerland, which is his native country, soon.
The Respondnet draws attention to the fact that Complainant has registered the domain
names <flügger.net> and <flügger.org>.
6. Discussion and Findings
According to Paragraph 15(a) of the Rules, the Panel shall decide a Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of 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 a trademark or service mark 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.
Identical or Confusingly Similar
The Complainant’s mark FLÜGGER is registered and has been used in many countries in Europe and in particular the resident country of Respondent Denmark.
The domain name <flügger.com> contains the mark in its entirety with the addition of the gTLD denomination .com.
The domain name is thus identical to the trademark in which the Complainant has rights.
The requirements set out in the Policy, Paragraph 4(a)(i) are therefore fulfilled.
The Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name incorporating the mark.
Further, the Respondent has not demonstrated that he has any prior rights in the domain name. No evidence has been put before the Panel that shows that Respondent has made any demonstrable preparations to use the domain name before the filing of the Complaint, or that he was commonly known by the domain name before that time.
Respondent claims that he intends to use the domain name for an import and export company dealing with agricultural machines, but no concrete evidence whatsoever on these business activities has been provided, and this claim can thus not constitute a defense for the purpose of these proceedings.
In addition the Panel notes that the explanation given for why the particular name was chosen is not convincing. The combination is by no standard a common or natural way of combining the initial letters of the words Flüelen Gross Geräte.
Under these circumstances the Panel finds that the Respondent has not demonstrated a legitimate interest in respect of the contested domain name. See WIPO Case D2000-0471 <reutersmobile.com> et. al.
The requirements of the Policy, Paragraphs 4(a)(ii) are also considered fulfilled.
Paragraph 4(a)(iii) of the Policy further provides that the Complainant must prove registration and use of the domain name in bad faith. Paragraph 4(b) sets out, by way of example, the kind of evidence that may be put forward.
The trademark FLÜGGER has been registered and used for many years in Denmark and must be considered to be a well-known mark. The Respondent has not contested this fact, and in the view of the Panel it is unlikely that the Respondent did not know of the mark when registering the contested domain name.
Respondent has not been willing to transfer the contested domain name to Complainant and has in that connection referred to other offers to buy the domain name without specifying these offers in any way. This can hardly be seen as anything but an attempt to increase any possible remuneration from Complainant considerably.
The disputed domain name is registered under the multi-lingual test bed, which in effect means that it cannot be used as normal domain names consisting of the basic Latin characters. This fact does, however, not in itself prevent that the UDRP procedure can be used see WIPO Case D2002-0023 and others.
In addition, as it has been first established in WIPO Case D2000-0003 and confirmed in numerous later cases the concept of "use" in the Policy is not limited to positive actions.
Considering all the facts and evidence the Panel therefore finds that the requirements of the Policy, Paragraph 4(a)(iii) are also fulfilled in this case.
In view of the above circumstances and facts the Panel finds that the domain name registered by the Respondent is identical to the trademark in which the Complainant has rights, that the Respondent does not have any rights or legitimate interests in respect of the domain name, and that the domain name has been registered and is being used in bad faith.
Consequently, the Panel decides that the domain name <flügger.com> be transferred to the Complainant.
Dated: May 24, 2002