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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
V&S Vin & Sprit AB v. Canal Prod Ltd.
Case No. D2002-0437
1. The Parties
Complainant is V&S Vin & Sprit AB, represented by Domain Network Sweden AB, Joanna Lundquist, Alsnögatan 11, 7tr, Box 4712, 116 92 Stockholm, Sweden, hereinafter the "Complainant".
Respondent is Canal Prod Ltd, David Rivat, PO Box 1402 Victoria, MAHE, 1402, The Republic of Seychelles, hereinafter the "Respondent".
2. Domain Names and Registrar
The domain names in dispute are <absolut-sexe.com>, <absolut-sexo.com> and <absolut-x.com> hereinafter when referred to jointly the "Domain Names".
The registrar for the domain names <absolut-sexe> and <absolut-sexo.com> is Network Solutions Inc, 505 Huntmar park Dr., Herndon, VA 22070. The registrar for the domain name <absolute-x.com> is GANDI, 38 rue Notre-Dame de Nazareth, F-75003, Paris, France.
3. Procedural History
The essential procedural history of the administrative proceeding is as follows:
(a) Complainant initiated the proceeding by the filing of a complaint, received by the WIPO Arbitration and Mediation Center ("the Center") on May 6, 2002. On May 10, 2002, the Center sent an Acknowledgement of Receipt of Complaint to the Complainant.
(b) On May 10, 2002, the Center transmitted a Request for Registrar Verification to the registrar, with the Registrar’s Verification received by May April 15, confirming that the domain names at issue was registered through Network Solutions Inc., and GANDI.
(c) On June 4, 2002, the Center transmitted Notification of the Complaint and Commencement of the Administrative Proceeding to the Respondent, after having satisfied itself that the Complainant had complied with all formal requirements pursuant to the Uniform Domain Name Dispute Resolution Policy, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999 ("the Policy"), the Rules for the Policy approved by ICANN on October 24, 1999 ("the Rules"), and the Supplemental Rules for the Policy ("the Supplemental Rules").
(d) No Response has been submitted by the Respondent. Accordingly, the Center issued a Notification of Respondent Default on July 3, 2002.
(e) In view of the Complainant’s designation of a single panelist, the Center invited Mr. Peter Nitter to serve as a panelist. Having received his Statement of Acceptance and Declaration of Impartiality and Independence, the Center formally appointed him as Sole Panelist. The parties were notified of the Appointment of Administrative Panel on July 16, 2002.
(f) The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and the Supplemental Rules. The Administrative Panel shall issue its decision based on the complaint, the Policy, the Rules and the Supplemental Rules. The proceedings have been conducted in English.
4. Factual Background
Complainant is a Swedish government-owned company founded in 1917. Complainant manufactures, imports and distributes alcoholic beverages for resale on the Swedish market and exports spirit beverages all over the world. The company has 1400 employees and the turnover in 2001 counted 6,7 billion SEK.
Complainant has presented copies of trademark registrations of the word mark ABSOLUT in the European Community and in USA, and listings showing registration of the same mark in several other countries.
The Respondent has registered the Domain Names <absolut-sexe.com>, <absolut-sexo.com> and <absolut-x.com>.
5. Parties’ Contentions
The Complainant asserts that:
Identical or confusingly similarity with a trademark
The dominant part of the Domain Names comprises the word "ABSOLUT" which is identical to the registered trademark ABSOLUT. The domain names are confusingly similar to the Complainant’s mark ABSOLUT. The addition of the suffixes "sexe", "sexo" and "x" are totally irrelevant and will not have any impact on the overall impression of the dominant part of the name ABSOLUT, instantly recognizable as one of the most famous trademarks in the world. Any reader is bound to get confused with the Domain Names of the Respondent and will certainly relate it to the Complainant.
Rights or legitimate interests in the Domain Names
The Respondent registered the Domain Names subsequent to when the majority of the Complainant’s trademarks proceeded to registration.
The Respondent is dealing with pornographic sites. The domain names <absolut-sexe.com> and <absolut-x.com> are resolved to pornographic websites with the same mane as the domain names. The domain name <absolut-sexo.com> does not resolve to a web site or other on-line presence.
The Respondent cannot be considered as been commonly known by the Domain Names.
The Respondent cannot be considered to making a non-commercial or fair use of the Domain Names, without intention for commercial gain to mislead divert consumers or to tarnish the trademark at issue.
Rights and legitimate interests cannot be created where the user of the domain names at issue would not choose such names unless he was seeking to create impression of association with the Complainant. The Respondent has chosen the name ABSOLUT in the Domain Names, which is a non-English version of the name. It would have been more suitable to choose an English speaking word in the Domain Names.
The word ABSOLUT has no logical meaning in relation with the content of the web sites or the activity of the Respondent. The Respondent has not used ABSOLUT alone or as a part of a trademark, trade name or other symbol, or in a descriptive or informative manner to describe the Respondent’s interests.
It is clear that there has been no licence or authorization given by the Complainant to the Respondent to use or register the name or trademark ABSOLUT.
Registration and use in bad faith
The trademark ABSOLUT is a reputed and well-known trademark in the European Community and in the USA. It is very likely that the Respondent was aware of the famous mark ABSOLUT when registering the Domain Names.
In an e-mail dated on April 8, 2002, Respondent offered to sell all three domain names for the price of USD 25000. Accordingly, the Respondent’s attempt to sell the domain names for consideration in excess of his investment of time and money relative to the Domain Names must be considered to constitute use of the Domain Names in bad faith.
The Respondent has intentionally attempted to attract, for commercial gain, Internet users to his web sites by creating a likelihood of confusion with the Complainant’s famous mark as to the source, sponsorship, affiliation, or a product or service on the website.
The fact that the sites operated by the Respondent is pornographic in nature, has been found in prior decisions to be evidence of bad faith.
Especially the domain name <absolut-x>, which contains no sexual associated words, is more likely to cause confusion with the Complainant’s famous mark as to the source, sponsorship, affiliation, or a product or service on the website.
The use of the name ABSOLUT as a part of a domain name offering pornographic products and services certainly "tarnishes" Complainant’s mark, which is also evidence of bad faith.
Respondent would not be able to use the Domain Names without creating an impression in the minds of the public that the Complainant had licensed the said trademark to the Respondent or authorized the Respondent to register it or that the Respondent had some kind of connection with the Complainant.
There can be no doubt that the trademark ABSOLUT is such a well-known and famous name and so obviously connected with the Complainant and its services that its very use by someone with no connection to the Complainant suggests "opportunistic bad faith". Consequently the Respondent must have registered and is using the Domain Names in bad faith.
The Complainant requests the Administrative Panel issue a decision that the Domain Names be transferred to the Complainant.
The Respondent has not submitted a response, and is thus in default. Respondent has neither made any submissions after the Notification of Respondent Default.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three tests that a complainant must satisfy in order to succeed. The Complainant must satisfy that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of such domain name; and
(iii) the domain name has been registered in bad faith and is being used in bad faith.
Because the Respondent has defaulted in providing a response to the allegations of Complainant, the Panel is directed to decide this administrative proceeding on the basis of the Complaint (Rules, para. 14(a)), and certain factual conclusions may be drawn by the Panel on the basis of Complainant’s undisputed representations (id., para. 14(b)).
6.1 Identical or confusingly similar to a trademark or a service mark in which the Complainant has rights
Based on the evidence the Panel finds that the Complainant has rights to the trademark ABSOLUT.
The Domain Names at issue are <absolut-sexe.com>, <absolut-sexo.com> and <absolut-x.com>.
The Panel considers that, as found in several earlier Panel decisions, the suffix .com does not influence on the consideration of similarity.
The Panel finds that the Complainant’s trademark is distinctive and that it is also a very well known mark.
The Domain Names consist of the Complainant’s trademark ABSOLUT and the additions "sexe", "sexo" and "x".
The Panel agrees with the Complainant that the additions do not prevent the impact on the overall impression of the Domain Names that they have some sort of connection with the Complainant. The additions lack distinctiveness and are not sufficient to give the Domain Names an individual meaning.
On the basis of these considerations, the Panel finds that the Domain Names are confusingly similar to a trademark in which the Complainant has rights.
6.2 Rights or legitimate interest in the Domain Names
The Panel has considered the allegations by the Complainant as to the lack of rights or legitimate interests of the Respondent in respect of the Domain Name.
Respondent is not a representative or licensee of the Complainant, nor has Respondent any other authorization to use the Complainant’s trademarks.
The Panel has visited the relevant web sites of the Respondent in order to investigate whether there could be found any evidence as to Respondents rights or legitimacy of interest with regard to the Domain Names.
The address <absolut-sexo.com> does not lead to any active web site, and so the Panel could not find any such evidence. Neither has Respondent presented any evidence of use or preparations to use the Domain Name in connection with a bona fide offering of goods or services.
The addresses <absolut-sexe.com> and <absolute-x.com> lead to web sites offering pornographic products and services. The product and services offered requires payment from the users, and are therefore commercial.
Whether these websites can be considered to concern a bona fide offering of goods or services or legitimate fair use of the Domain Names, depends on whether the Domain Names were registered in bad faith or not. As will be seen below, the Panel finds that the Domain Names were registered in bad faith, and thus the relevant websites do not concern a bona fide offering of goods or services or fair use.
There is no evidence that the Respondent was commonly known by any of the Domain Names prior to this dispute.
As a result of default, the Respondent has not contested the allegations put forward by the Complainant, nor has the Respondent presented any evidence of rights or legitimate interests.
The Panel finds that the Respondent has no rights or legitimate interest in the Domain Name.
6.3 Registration and use in bad faith
The Panel has considered Complainant’s allegations and evidences with regard to the Respondent’s registration and use of the Domain Names in bad faith.
Complainant has put forward evidence that his trademarks are well known, and the Panel finds that the trademarks of the Complainant in all probability have been known to Respondent when registering the Domain Names.
The Respondent’s attempt to sell the Domain Names for USD 25000 indicates that Respondent registered the Domain Names primarily for the purpose of selling it, and thus indicates registration in bad faith.
It could be argued that the Respondent’s intention when registering the Domain Names was to make use of the word "absolute" in the generic meaning of the word. However, this is not evident, as the wording in the Domain Names is neither in the English, French or Spanish language. In addition, there has been no response from the Respondent to support this, and so the Panel cannot base its decision on such argumentation.
Therefore, the Panel agrees with the Complainant that in this case the use of the name ABSOLUT as a part of a domain name offering pornographic products and services tarnishes Complainant’s mark, and this indicates that the Domain Names are being used in bad faith.
Furthermore, by not submitting a response, Respondent has failed to invoke any circumstances that could demonstrate that it did not register and use the Domain Names in bad faith.
Based on the above discussion, the Panel finds that the Respondent has registered and is using the Domain Names in bad faith.
The Panel has found that the Domain Names <absolut-sexe.com>, <absolut-sexo.com> and <absolut-x.com> are confusingly similar to a trademark held by the Complainant, and that the Respondent has no rights to or legitimate interest in the Domain Names. The Panel further finds that the Domain Names have been registered and are being used in bad faith.
Therefore, pursuant to Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel decides that the Domain Names <absolut-sexe.com>, <absolut-sexo.com> and <absolut-x.com> be transferred to the Complainant.
Peter G. Nitter
Dated: July 30, 2002