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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Sparekassen sparTrelleborg v. Bahija Elbos
Case No. D2003-0710
1. The Parties
The Complainant is Sparekassen sparTrelleborg, Slagelse, Denmark, represented by Sandel, Løje & Wallberg, Denmark.
The Respondent is Bahija Elbos, Habus, Morocco.
2. The Domain Name and Registrar
The disputed domain name <spartrelleborg.com> is registered with BulkRegister.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 9, 2003. On September 9, 2003, the Center transmitted by email to BulkRegister.com a request for registrar verification in connection with the domain name at issue. On September 9, 2003, BulkRegister.com transmitted by email to the Center its verification response 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 September 12, 2003. In accordance with the Rules, Paragraph 5(a), the due date for Response was October 2, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 10, 2003.
The Center appointed Richard Hill as the sole panelist in this matter on October 14, 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.
4. Factual Background
Sparekassen sparTrelleborg was originally founded in 1855 under a different name. Through the years it merged with other local savings banks in the particular region in Denmark to become a major regional savings bank with an annual balance in 2002 of DKK 2.130.844.000.
The current name "SparTrelleborg" was notified to the Companies Register on November 9, 2001, and it was recorded as such on March 19, 2002.
The new name was announced as SparTrelleborg to the public through a press release and a corresponding press conference on February 28, 2002. The press release was sent to all media in Denmark as well as to other relevant bodies and authorities in Denmark. The regional newspapers ran stories on the name change in the following days.
The contested domain name was registered by Respondent on March 3, 2002, three days after the announcement of Complainant’s new name.
The contested domain name pointed for a long time to pornographic material. Shortly after the Complainant wrote to the Respondent, the site was changed. It now contains a commercial for and a link to the homepage of a company that appears to offer franchises for financial software and web development tools.
At the date of registration of the contested domain name, Respondent had his residential address in the city in which Complainant’s main office is situated.
Complainant wrote to Respondent on April 7, 2002, requesting transfer of the disputed domain name, in exchange for a refund of the registration costs.
On May 7, 2002, Respondent replied, refusing the Complainant’s offer and offering to transfer the disputed domain name for a payment of US$ 4.350,00 for the domain name and the corresponding website.
5. Parties’ Contentions
Complainant alleges that it has trademark rights, under Sect. 3, 2, of the Danish Trademarks Act, to the mark SPARTRELLEBORG. It further alleges that Respondent has no rights or legitimate interests in the disputed domain name, and that: "since Complainant is by far the largest bank or savings bank in the city of Slagelse [the Respondent’s residence] and since the change of name was so heavily announced in particular in the local press there can be no doubt that Respondent knew of this when he registered the domain name."
Complainant produces extensive evidence to support its contentions.
The Respondent did not reply to the Complainant’s contentions.
However, on September 19, 2003, the Administrative Contact listed for the disputed domain name made the following statement on behalf of the Respondent:
I have from my client received following statement:
Trelleborg is the name of a Marroc/Korean company selling CMS & Real Estate. Since last year we have been harassed from an unknown company, trying to make us let go of our domain <spartrelleborg.com>. We are not willing to let go unless our expenses are covered aprox. 4.350,00 US$. Though we still do not understand the methods used by this company.
We received a letter dated 4/4-01 claiming they wanted the domain, but after a short correspondence we didn't receive any letters for another 1? year. Therefore we do not understand this very late claim, that in best case we will call quiet accept.
Anyway - our domain has now been listed for years with our products we only find it reasonably with covering of our expenses.
I have nothing further to add. Looking forward to hear from you."
No documentation or evidence was provided to support the statements made.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established that it has a trademark for the name SPARTRELLEBORG and it is clear that this name is identical or confusingly similar to the disputed domain name <spartrelleborg.com>.
B. Rights or Legitimate Interests
Respondent has not provided any evidence that it has a legitimate use for the disputed domain name.
The statement forwarded by the Administrative Contact appears to contradict the evidence and the Panel thus does not accept that statement.
Complainant has presented evidence and argued convincingly that, given its reputation and the local press coverage of its name, it is hard to understand how the Respondent (a resident of the same town) could have any rights or legitimate interests in the contested domain name.
This panel holds that the Complainant has presented sufficient evidence to satisfy its burden of proof with respect to the issue of whether the Respondent has rights or legitimate interests in the contested domain name, and it finds that the Respondent does not have rights or legitimate interests in the contested domain name.
C. Registered and Used in Bad Faith
It is not disputed that the Respondent used the contested domain name for a pornographic site.
As the Panel stated in Motorola, Inc. vs NewGate Internet, Inc., WIPO
Case No. D2000-0079 (April 14, 2000, <talkabout.com>):
"While (as the respondent correctly points out) many adult sex sites are perfectly legal and constitute bona fide offerings of goods or services, the use of somebody else’s trademark as a domain name (or even as a meta-tag) clearly does not constitute a "bona fide" offering of goods or services when the website owner has no registered or common law rights to the mark, since the only reason to use the trademark as a domain name or meta-tag is to attract customers who were not looking for an adult sex site, but were instead looking for the products or services associated with the trademark. Such use of a trademark can create customer confusion or dilution of the mark, which is precisely what trademark laws are meant to prevent. And actions that create, or tend to create, violations of the law can hardly be considered to be "bona fide"."
As noted above, the Panel does not accept the statement made by the Administrative Contact on behalf of the Respondent, because that statement is not consistent with the evidence.
As Complainant points out, it is hard to believe that Respondent did not know of the Complainant’s name at the time of registration, and hard to believe that he did not register the contested domain name and use it to build an adult website in order intentionally to attract, for commercial gain, Internet users to his website, by creating a likelihood of confusion with the Complainant's mark, which is in violation of Paragraph 4(b)(iv) of the Policy.
Therefore, the Panel finds that the Complainant has satisfied its burden of proof and it finds that the Respondent has registered and used the disputed domain name in bad faith.
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, <spartrelleborg.com>, be transferred to the Complainant.
Date: October 17, 2003