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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cloetta Fazer AB v. AE1840.ORG
Case No. D2002-0522
1. The Parties
Complainant is Cloetta Fazer AB, represented by Mr. Johan Mikaelsson, Domain and Intellectual Property Consultants AB, William Gibsons Väg 1, SE-433 76 Jonsred, Sweden, hereinafter "the Complainant".
Respondent is AE1840.ORG, Miss Cloetta Surbate, Suriname St, 9685, Suriname, hereinafter "the Respondent".
2. Domain Names and Registrar
The domain names in dispute are <cloetta.biz> and <cloetta.info>.
The registrar for the disputed domain names is Melbourne IT Ltd., Level 2, 120 King Street, Melbourne Victoria 3000, Australia.
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 June 5, 2002. On June 7, 2002, the Center sent an Acknowledgement of Receipt of the Complaint to the Complainant.
(b) The Registrar’s verification confirming that the domain name at issue was registered through Melbourne IT Ltd. was received by the Center June 11, 2002.
(c) On June 11, 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"). The same day the following email reply was submitted from <email@example.com>:
Miss Cloetta Surbate is back at the office the 31th of August
Please confirm reception of this mail.
(d) No Response has been submitted by the Respondent. Accordingly, the Center issued a Notification of Respondent Default on July 4, 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, and transmitted the case file to the Administrative Panel. The parties were notified of the Appointment of Administrative Panel July 8, 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
After the Complainant’s assertions, undisputed by Respondent because of its default, and supported by the documents enclosed as annexes to the complaint and the Panel’s own investigations through visits to the web sites corresponding to the disputed domain names, the Panel finds the following:
Complainant is a multinational company in the confectionery business, with a history dating back to 1862. Its number of employees is approximately 2.000, and its annual confectionery sales in 2001 amounted to SEK 3.100.000,-. The Complainant’s confectionary products are marketed throughout the world and the company has sales and production units in Sweden, Finland, Poland, Norway, Denmark, Russia and the Baltic states. Complainant is the market leader of confectionaries in Sweden and Finland.
Complainant has registered CLOETTA as a community trademark, and a trademark in the United States. Furthermore, the Complainant is the owner, directly or via subsidiaries, of the domain names <cloetta.com>, <cloetta-fazer.com>, <cloettafazer.com>, <cloettafazer.net> and <fazercloetta.com> .
The Respondent has registered the domain names <cloetta.biz> and <cloetta.info>.
5. Parties’ Contentions
The Complainant asserts that:
The domain names at issue are identical to Complainant’s trademark CLOETTA.
The Respondent has no right or legitimate interest in respect of the domain names at issue.
Before notice of the dispute was communicated to the Respondent, there was no evidence of the Respondent’s use of, or demonstrable preparations to use, the domain names or a name corresponding to the domain names in connection to a bona fide offering of goods or services. Neither has there been any attempt made of a bona fide use after the Respondent having received a cease and desist letter from the Complainant.
The name Miss Cloetta Surbate stated in the address field of the owners contact information should be disregarded, as the name most likely does not belong to an actual person, and is submitted as an attempt to mislead the Complainant.
The domain names were and are registered and used in bad faith.
The Respondent has registered the domain names at issue with the intention of transferring them to their rightful owner in exchange for consideration in excess of the Respondent’s out-of-pocket costs directly related to the domain names. Respondent offered to sell the domain names at issue to the Complainant the very same day as the domain names were registered, and sent an invoice to the Complainant on November 22, 2001, requesting SEK 13 350,-.
The Respondent has engaged in a pattern of bad faith registrations. Respondent has registered a number of domain names corresponding to other well-known Swedish and/or international trademarks, all being offered to the highest bidder through the Respondent’s web site.
Furthermore, the Respondent has changed the contact information of the domain names with the purpose of hiding behind a non-existing individual and thereby complicating the situation for the Complainant. Such conduct has been deemed as an indication of bad faith in previous proceedings under the UDRP.
The Complainant requests the Administrative Panel issue a decision that the contested domain names must be transferred to the Complainant.
The Respondent has not submitted a response, and is thus in default.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists three tests which 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.
6.1 Identical or confusingly similar to a trademark or a service mark
The Panel finds that the domain names at issue are identical to the Complainant’s trade mark CLOETTA.
6.2 Rights or legitimate interest in the domain name
The Panel has considered the allegations and evidence set forth by the Complainant as to the lack of rights or legitimate interests of the Respondent in respect of the domain names at issue, including the Complainant’s contention about the lack of any legitimate intellectual property or bona fide right of the Respondent to the contested domain names. As a result of default, these allegations have not been contested by the Respondent.
The Panel has visited the <www.cloetta.biz> and <www.cloetta.info> web sites of the Respondent in order to investigate whether there could be found any evidence as to Respondent’s rights or the legitimacy of the interest of the Respondent in the contested domain names. The Panel did however not find any such evidence.
Thus, the Panel finds that the Respondent has no rights or legitimate interest in the contested domain names.
6.3 Registration and use in bad faith
Respondent has not invoked any circumstances which could invalidate Complainant’s allegations and evidence with regard to the Respondent’s registration and use of the domain names in bad faith.
The Complainant has shown that Respondent registered the domain names at issue with the intention of transferring them to their rightful owner in exchange for consideration in excess of the Respondent’s out-of-pocket costs directly related to the domain names.
The Respondent has also linked the domain names at issue to its own commercial web sites containing pornographic material.
The Complainant has furthermore shown that the contact details given by the Respondent are false, and thereby complicating the communication. This may be considered as an attempt to avoid identification and to evade the jurisdiction of the Panel.
Pursuant to Paragraph 4(b) and previous Administrative Panel Decisions, the aforementioned documented circumstances constitutes evidence of registration and use of domain names in bad faith.
The Panel therefore finds that the Respondent has registered and used the domain names at issue in bad faith.
The Panel has found that the domain names <cloetta.biz> and <cloetta.info> are identical to a trade mark held by the Complainant, and that the Respondent has no rights to or legitimate interest in said domain names. The Panel has further found 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 to request that the domain names <cloetta.biz> and <cloetta.info> be transferred to the Complainant.
Peter G. Nitter
Dated: July 12, 2002