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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Aegon N.V. v. Jozsef Pal
Case No. DBIZ2002-00226
1. The Parties
The Complainant is Aegon N.V., 2501 CE The Hague, The Netherlands, represented by Eugenie M.M. Tamis.
The Respondent is Jozsef Pal, Alkotmany str. 41, 7100 Szekszard, Hungary, represented by Domaix PLC.
2. The Domain Name and Registrar
The Domain Name at issue is <aegon.biz>. The Registrar is BB Online UK Limited, P.O. Box 2162, Luton Beds LU3 2YT, United Kingdom.
3. Procedural History
The STOP Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 2, 2002. On May 10, 2002, the Center acknowledged receipt of the Complaint. On May 23, 2002, the Center sent to the Complainant a Deficiency Notice, to which the Complainant responded on May 27, 2002.
The Center verified that the Complaint satisfies the Start-Up Trademark Opposition Policy for .biz ("STOP Policy") the Rules for Start-Up Trademark Opposition Policy for .biz ("STOP Rules") and the WIPO Supplemental Rules for Start-Up Trademark Opposition Policy for .biz ("WIPO Supplemental STOP Rules") and that payment was properly made. The Panel is satisfied this is the case.
On June 10, 2002, the Center notified the STOP Complaint and the Administrative Proceeding commenced. The Center received on June 29, 2002, a Response and on July 12, 2002, additional Statements from the Respondent. On July 16, 2002, the Center acknowledged receipt of the Response.
On July 25, 2002, the Center notified the Parties that an Administrative Panel, composed of a single member, Dr. Gerd F. Kunze, had been appointed and that the Panelist had duly submitted a Statement of Acceptance and Declaration of Impartiality and Independence to the Center.
On July 30, 2002, the Panelist issued an Administrative Procedural Order to the Complainant and to the Respondent, following which the Respondent submitted additional statements and evidence.
4. Factual Background
The Complainant is, according to its submissions, the holding company of worldwide insurance operations. It is, amongst others, the owner of international registration No R 536 748, based on the Benelux registration No 155 121, dated December 1, 1987, for the trademark AEGON, in classes 35 and 36, which amongst other countries covers Hungary. It is also the owner of the Community Trade Mark registration No. 413039 AEGON, dated September 28, 1999, and two other CTM registrations, consisting of the word AEGON in a specific graphic presentation. The Complainant has not submitted any facts or evidence as concerns the use of its company name as a trademark by itself or by any affiliates. However, since the Community Trade Mark registrations date from 1999 and enjoy a user grace period of five years, the Complainant has no doubt rights in the trademark AEGON.
The Respondent registered on March 27, 2002, the domain name <aegon.biz>. It submits that it intends to use that domain name.
5. Parties’ Contentions
The Complainant submits that (1) the domain name <aegon.biz> is identical to a trademark or service mark, in which the Complainant has rights; (2) the Respondent has no rights or legitimate interests in respect of the domain name; (3) the domain name was registered or is being used in bad faith.
The Respondent submits that it has rights and legitimate interests in respect of the domain name and that the domain name was not registered and is not being used in bad faith.
6. Discussion and Findings
Paragraph 4(a) of the STOP Policy lists three elements that the Complainant must prove to merit a finding that the domain name of the Respondent be transferred to the Complainant:
1) the domain name is identical to a trademark or service mark ("mark") in which the Complainant has rights; and
2) the Respondent has no rights or legitimate interests in respect of the domain name; and
3) the domain name has been registered or is being used in bad faith.
1) Identical to a mark in which the Complainant has rights
The domain name <aegon.biz> is identical to the registered trademark "AEGON" in which the Complainant has rights in the European Community. The Complainant has also submitted evidence that its international registration No R 536 748 AEGON, dating back to 1987, extends to Hungary, however, without any indications as to its use in Hungary, which is necessary for its continued protection in that country. Be it as it may, in view of the Community Trade Mark registration the Complainant has rights in the mark AEGON.
2) Legitimate rights or interests in respect of the domain name
The Respondent has no connection or affiliation with the Complainant, who has not consented to the Respondent's use of the domain name, and it is not commonly known under that domain name.
The Respondent submits, however, that he intends to have used the domain name by a company named Domaix Plc, which was founded in January 2002 and of which he is the founding owner. In his response, the Respondent claims that Domaix Plc is the trading agent of Tommix Studio Kft, the manufacturer of a whirlpool called "A’égön" and to have an authorization from that manufacturer to register the domain name <aegon.biz> in order to promote and offer for sale that whirlpool on the Internet. The Respondent also submits that "aegon" has been chosen as being the term corresponding to the trademark "A’égön" in Internet language.
Following a request for further statements and documents the Respondent submitted a copy of the authorization of Tommix Studio Kft, dated February 18, 2002, both in Hungarian and in its certified English translation. In the context of the present proceedings, paragraphs 1-3 of the authorization are relevant, which read in the English translation (Note: "the Commissioner" stands for Tommix Studio Kft, and "the Appointee" stands for Domaix Plc):
"1. The Commissioner in his quality as manufacturer of the Whirlpool massage pools with the trade name "A’égön", by signing this document, authorizes the Appointee for registration under its name the following domain name: aegon.biz.
2. The authorization is based upon the fact that the Appointee is sole wholesale distributor of the Whirlpool massage pools with the trade name A’égön, manufactured by the Tommix Studio Kft, based on a separate contract.
3. This authorization entitles the Appointee to registration under his own name of the domain aegon.biz at his own costs, provided that – the registration has succeeded – only and exclusively the product articles manufactured by the Commissioner can be presented in it, costs supported by the Appointee."
Thus the Respondent has provided prima facie evidence for his submission that he has a legitimate interest in the use of the domain name <aegon.biz>.
Whilst the Panel finds it personally surprising that the Respondent and Tommix Studio Kft consider the domain <aegon.biz> to be the adequate term in order to represent as a domain name at the Internet the trademark "A’égön" (the Respondent could also have registered internationalized domain names with "aégön" or at least "aegön"), it tends to conclude that the Complainant, who was given time to submit further arguments and evidence to support its claim and to comment on the submissions of the Respondent (without responding to that request), has not proven that the Respondent had no rights and no legitimate interest in the domain name <aegon.biz. However, that question need not to be decided in view of the fact that the Complainant failed to prove that the Respondent acted in bad faith.
3) Registration or use in bad faith
Under the Policy, the Complainant must prove that the Respondent has registered or is using the domain name in bad faith. However, since the STOP proceeding has come into effect shortly after registration, the Respondent has not been able to use the domain name. The focus is therefore on bad faith registration, not on bad faith use of the domain name. Such proof cannot in the present case be given by simply referring to the registered trademark AEGON of the Complainant.
As said before, the Respondent has submitted evidence that it intends to use the domain name for a purpose that relates it to a registered business in the field of trading with whirlpools, an activity that is totally different from the business of the Complainant. The Respondent has also submitted evidence that Domaix Plc, the authorized agent of the manufacturer of the A’égön whirlpool, is a registered business that amongst others exercises the wholesale trading of all sorts of goods including the retail trade of miscellaneous industrial goods and retail trade with home-delivery. According to the authorization submitted by the Respondent, Domaix Plc is even obliged to present exclusively the products manufactured by the whirlpool manufacturer under the domain name <aegon.biz>.
As also said before, the Panelist does not consider the domain name chosen for the purpose of selling whirlpools under the trademark A’égön to be such a logical choice as the Respondent purports. Depending on the facts and the evidence submitted by the parties, this could be considered to be an indication that the Respondent chose intentionally the trademark of the Complainant for registration of his domain name. However, the Panelist could only draw such conclusion in favor of the Complainant if there were good reasons to believe that the Respondent was aware of the Complainant’s trademark when he registered the domain name <aegon.biz>. For that purpose it is not sufficient that the Complainant is the registered owner of an international registration that extends its protection to Hungary. There is no legal obligation for the registrant of a domain name to search trademark registers in order to see whether a trademark, identical to the domain name that he intends to register, is registered in the country or elsewhere in the world. In a procedural order, the Panel requested the Complainant to submit information and evidence on the use of the Complainant’s mark, in general and particularly in Hungary (on purpose the Panel also asked whether the Complainant has a subsidiary in Hungary). However, the Complainant chose not to respond to the Panelist’s procedural order. Consequently, the Panelist must base the decision on the assumption that the trademark AEGON of the Complainant is not used and therefore not known in Hungary. Therefore, even if in the Panelist’s opinion the domain name <aegon.biz> may not be an adequate domain name in order to be used for a website intended to promote the "A’égön" whirlpool, if the manufacturer of that whirlpool and the Respondent (representing the Domaix Plc) believe that the domain name <aegon.biz> should be used for that purpose and the manufacturer authorizes the Respondent to register the domain name for that purpose, this is at least prima facie evidence for the submission of the Respondent that he did not register the domain name in bad faith.
In the absence of any submission or evidence of the Complainant that would argue against the submissions of the Respondent, the Panelist therefore concludes that the Complainant failed to prove that the Respondent registered the domain name <aegon.biz.> and intends to use it under any of the conditions listed in the Policy as indication of registration or use of the domain name in bad faith with reference to the Complainant’s rights in the trademark "AEGON".
No doubt the Complainant will watch the Respondent’s future activities relating to the domain name <aegon.biz> and may be able to intervene at the courts level, should these activities prove to be an infringement of the Complainant’s trademark rights in Hungary (assuming that the Complainant uses its trademark "AEGON" in Hungary).
The Panel decides that the Complainant has failed to prove that the Respondent has registered or is using the domain name <aegon.biz> in bad faith.
The Panelist therefore rejects the request to transfer the domain name <aegon.biz> to the Complainant.
Dr. Gerd F. Kunze
Dated: August 23, 2002