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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Chemoform GmbH & Co. KG v. Company Office Net SARL
Case No. D2003-0488
1. The Parties
The Complainant is Chemoform GmbH & Co. KG, Wendlingen, Germany, represented by Christophe Kühl and Dorothée Stumpf of Epp, Gebauer & Kühl of Germany.
The Respondent is Company Office Net SARL, represented by Michel Rohmer, Erstein, France.
2. The Domain Name and Registrar
The disputed domain name is <chemoform.com> and is registered with iHoldings.com Inc. d/b/a DotRegistrar.com
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 23, 2003. On June 24, 2003, the Center transmitted by e-mail to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the domain name at issue, iHoldings.com Inc. d/b/a DotRegistrar.com transmitted by e-mail to the Center its verification response the same day confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 30, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was July 20, 2003. The Response was filed with the Center on July 7, 2003.
The Center appointed the undersigned as the sole panelist in this matter on July 23, 2003. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant made a request to make a further submission. On July 30, 2003, the panelist ruled that there would be a further round of submissions and set deadlines for the same. The panelist also ruled that, in light of the fact that Respondent had made its submission in French, and that both sides representatives appeared to use and understand that language, that in application of Paragraph 11(a) of the Rules the parties could make their further submissions in French if they wished. Complainant thereafter made a further submission on August 8, 2003. Respondent made a further submission on August 18, 2003 by hard copy only, and this was received by the Center on August 20, 2003. Both additional submissions were in the French language, and were deemed timely and taken into account by the panelist.
4. Factual Background
The Complainant is a German company involved in the manufacture or sale of water treatment products. The Complainant holds and has made international registration of the trademark "CHEMOFORM" this registration applies, inter alia, to Germany and France.
The Respondent is a French company involved in the sale of cardboard products and other products, sometimes under the name "Ellipsis International." The disputed domain name was registered by one Thierry Rohmer as at February 27, 2001, in the name of the Respondent’s company. Respondent disputes whether Thierry Rohmer has any role within the Respondent, and is silent as to whether Respondent’s representative Michel Rohmer is related to Thierry Rohmer. It is, however, clear that Thierry Rohmer had a role acting as the "directeur commerciale" for Complainant in France during the first half of 2001. It also appears that certain products of Complainant were subsequently sold with an indication or address of "Ellipsis International."
On June 3, 2003, Respondent contacted Complainant by e-mail indicating that it was the "owner" of the disputed domain name ("…nous sommes proprietaire du nom de domaine ‘chemoform.com’"). That e-mail went on to state that as Respondent had no interest in keeping the domain name and it had made contact with "specialised companies" in domain name brokerage and would sell to these unless it promptly received an offer from Complainant. Complainant replied "veuillez nous donner une idée de votre prix," and Respondent wrote that the discussions with "specialised companies" were in the Ђ15-18,000 range.
These and other facts will be discussed further below the extent pertinent.
5. Parties’ Contentions
Complainant alleges that: (i) the disputed domain name is identical to its Mark; (ii) that Respondent has no rights and interests in the domain name as it offers no goods or services thereunder and Thierry Rohmer’s brief association with Complainant imparted no such rights; and (iii) that Respondent both registered and used the domain name in bad faith as it well knew Complainant’s rights therein while registering it in Respondent’s name, but registered it for the purpose of improper sale to the Complainant, and attempted such improper sale in June 2003. Thereupon the Complainant asks that the disputed domain name be transferred to it.
Respondent does not dispute Complainant’s rights on its Marks, but claims it has made legitimate use ("usage loyal") of the domain name. In particular Respondent claims that its registration of the domain name was known to Complainant and was for the legitimate purposes of promoting Complainant’s business. It therefore claims it cannot be considered to have made a bad faith registration of the domain name and it had a legitimate interest in the same.
6. Discussion and Findings (Paragraph 4(a) of Policy)
A. Identical or Confusingly Similar
The domain name is identical to Complainant’s Marks. This point is not contested by Respondent.
B. Rights or Legitimate Interests
Complainant has shown that Respondent is not using the domain name in connection with any bona fide offering of goods or services. Indeed Respondent has all but admitted this as it wrote Complainant that it had "aucun intérêt pour conserver ce nom de domaine."
Respondent nevertheless argues that the prior role of Thierry Rohmer and "Ellipsis International" in selling some of Complainant’s products validates Respondent’s rights in the domain name, and evidences Complainant’s agreement to Respondent’s rights in the same. This view is not supported by the evidence or logic.
There is no evidence of any contractual licensing or other arrangement authorising Respondent to register the domain name for its account. It appears that Thierry Rohmer did indicate to Complainant that he would set up an "addresse internet." But Mr. Rohmer did this on letterhead of "Chemoform France." To the extent Complainant acquiesced in this suggestion it cannot be interpreted as an agreement that Respondent (with whom it had no relation) or even Mr. Thierry Rohmer, register the domain name for their own account. Respondent seeks to muddy the waters by alleging confusing factual developments, e.g., that Chemoform France was not yet incorporated and was using the same address as Respondent. But even assuming, arguendo, that Respondent claims that it at one time made a "usage loyal" of the domain name is true, Respondent does not have any legitimate or independent rights to the same.
C. Bad Faith Use and Registration
Given that Respondent has no legitimate rights to the domain name it is evident that it made bad faith use of the same by offering it for sale at a price of Ђ15-18,000. Respondent tried to disguise this e-mail offer of sale by stating that this was the range of price offered by competing "specialised companies." But this is an obvious subterfuge. This is the genre of proscribed behaviour described at paragraph 4(b)(i) of the Policy.
Respondent seeks to avoid a finding of bad faith registration by confusing
arguments to the effect that Respondent and/or Thierry Rohmer had a legitimate
interest in such registration at the time it was made. But this cuts the other
way. Respondent does not, because it cannot, deny that it was abundantly aware
of Complainant’s rights in its Marks and name at the time that it registered
the domain name. Thus, if Respondent had indeed registered the domain name in
good faith it would have done so on behalf of Complainant and/or its French
entity – but this Respondent did not do. Here, as in the closely analogous case
of All Packaging Machinery Supplies Corp v. Crystal Flex Packaging Corp,
WIPO Case No. D2002-0383, the Panelist
can "see no good faith explanation" for Respondent’s conduct.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <chemoform.com> be transferred to the Complainant.
Nicolas C. Ulmer
Dated: September 15, 2003