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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
XPonCard Group AB (publ.) v. Mr. Anders Nilsson
Case No. DCC2003-0003
1. The Parties
The Complainant is XPonCard Group AB (publ.), C/O Mr. Lars Klasmark, of Stockholm, Sweden, represented by Mr. Johan Engborg and Mr. Tobias Peedu, of NOVA AB, Sweden.
The Respondent is Mr. Anders Nilsson, of Enköping, Sweden, also with a second address in Strängnäs, Sweden.
2. The Domain Name and Registrar
The disputed domain name <xponcard.cc> is registered with eNIC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 23, 2003. On that same day, the Center transmitted by email to eNIC a request for registrar verification in connection with the domain name at issue. On September 30, 2003, eNIC 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 October 13, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was November 2, 2003. The Response was filed with the Center on October 25, 2003.
The Center appointed Gunnar Karnell as the sole panelist in this matter on November 11, 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.
Because of a question submitted to the Center by the Respondent, whether some documents in Swedish language would need translation into English for the purpose of these proceedings, the Panel decides that no translation is necessary. The Panel masters both languages.
4. Factual Background
The Complainant requests that the domain name <xponcard.cc>, registered on July 4, 2003, be transferred to the Complainant.
The Respondent requests that the remedy requested by the Complainant be denied by the Panel.
5. Parties’ Contentions
For reasons given here below under Section 6., the Panel finds it unwarranted to address material issues raised by the Complainant which do not concern the indispensable foundation of any claim for transfer of a domain name under paragraph 4(a)(i) of the Policy, that it be based on "a trademark or a service mark in which the complainant has rights". The Panel has, however, chosen to quote here below the Complainant’s presentation a) of an introductory part under the title "XponCard" in its "Factual and Legal Grounds" of its Complaint as well as a later summarising portion b) (leaving out only numbers referring to appendices to the Complaint). This presentation may, together with the Panel’s conclusions, serve as a reminder to further Complainants to be observant about the strict rules of the Policy.
a) "XPonCard Group AB (hereinafter the "Group") is the market leader in the Nordic region with respect to development, manufacture, and administration of total solutions for plastic cards and has global operations within the area of SIM cards for telecom operators. Its customers include banks, telecom operators, and chain stores, which regard plastic cards with magnetic strips and, to an increasing degree, Smart Cards, as a means for more secure transactions and long-term customer relationships. The Group has both a product portfolio (including SIM cards, payment cards for the Bank and Finance industry, loyalty cards for chain stores, identity cards, authorisation cards, and membership cards), and a service portfolio (including distribution, data processing, card administration services, applications development, etc.).
XPonCard Group AB is listed on Stockholmbörsen’s (the Stockholm Stock Exchange) O-List. Sales in 2002, amounted to MSEK 731. The Group includes, among other companies, the two Swedish subsidiaries, XPonCard AB (hereinafter the "Company") and Inplastor AB.
The Group’s global operations within the SIM area are developed from both the Nordic region and a subsidiary in Bangkok (XPonCard International (Thailand) Ltd). The Group has customers in Europe, the Middle East, Africa, and Asia.
Within the Nordic market area, operations are conducted in Sweden (XponCard Group AB, XPonCard AB and XponCard Trade AB), Denmark (XponCard Group A/S, XPonCard A/S, XponCard Trade A/S, XponCard International A/S and XponCard Productions ApS ), Norway (XPonCard AS, XponCard Trade AS and XponCard systems AS), and Finland (XPonCard OY) through both sales offices and own production. There are customers within the market areas of Banking & Finance, Commerce & Loyalty, and as well as Public Sector & Transportation.
The Group started with its Swedish subsidiary, XPonCard AB, whose operations stretch back to 1968, and since 2001, has been operating under the XPonCard business name. XPonCard holds a significant market share in Sweden and has an active presence on the market. The product portfolio includes both cards with magnetic strips and cards with chips from the Group’s product portfolio.
The Group holds the intellectual property rights to the XPonCard mark, both through business name registration in Sweden, Finland, Norway, Denmark, Great Britain and Thailand (see attached list containing company information and company registration documents,…) and through registration of the marks xponcard, xpon, xponcard and xpon under the primary domain names .se, .dk, .as, .no, .fi, .co.uk, .org.uk, .com, .net, .org, .info, .biz, .nu, .de, and com.cn (see attached list of domain name registrations and documentation, …)."
b) "A summary of company registrations and company registration documents regarding XPonCard Group AB, XPonCard AB and XponCard Trade AB, XPonCard oy, XPonCard AS, XPonCard Trade AS and XPonCard systems AS, XPonCard Group A/S, XPonCard A/S, XPonCard Trade A/S, XPonCard International A/S and XPonCard Productions ApS, XPonCard International and XPonCard International (Thailand) Ltd, see …, demonstrates that XPonCard holds, under intellectual property law, the business name rights to the XPonCard mark and thereby has a legitimate interest worthy of protection that the identical domain name <xponcard.cc>, which Nilsson has registered, be transferred from Nilsson to the Company."
In its Response, the Respondent, not contesting the Complainant’s presentation as quoted there above, has stated its opinion about material issues that, for reasons given by the Panel here below under Section 6., does not need to be addressed in the Panel’s decision. They will, consequently, be left out of presentation here.
6. Discussion and Findings
Paragraph 4(a)(i) of the Policy states, as a precondition for any Respondent’s obligation to submit to a mandatory administrative proceeding as the present one, that the Complainant asserts that the Respondent’s domain name is identical or confusingly similar to a trademark or a service mark in which the Complainant has rights. Only if proven that such rights exist, will there be reason for the Panel to investigate whether the Complaint fulfils any further requisites, such as those listed in paragraph 4(a)(ii) and (iii) of the Policy.
In this case, the Complainant has based its contentions about rights solely upon that "XponCards holds, under intellectual property law, the business name rights to the XponCard and thereby has a legitimate interest worthy of protection…". See also the parts of the Complaint quoted here above under Section 5. A. As written evidence, no supportive elements about rights, other than registrations of company names and domain names, have been referred to.
The Panel has quoted here above descriptions given by the Complainant about its wide ranging business activities, but it has not found any related statement on the part of the Complainant, nor evidence invoked, to the effect that its use of names be considered related to or formative of any trademark rights. A sentence in the Complaint, where it is held against the Respondent to have made "various allegations which are irrelevant from a trademark perspective", does not count in support of an understanding that the Complainant would hold any trademark rights against the Respondent; nor do any other parts of the Complaint.
In other words, the present file does not contain satisfactory evidence to prove that the Complainant has established trademark rights. Consequently, paragraph 4(a)(i) of the Policy is not met.
Since the Panel has concluded above that the first element of the Policy is not met, it is not necessary for the Panel to discuss the requirements of legitimate interests/registration and use in bad faith according to Paragraph 4(a) (ii-iii).
As a general point, this Panel notes that the question whether the Complainant has acquired trademark rights in the name XPonCard is a question of evidence, which in most cases can be dealt with more properly by the national courts than under an administrative procedure such as the UDRP.
For all the foregoing reasons, the Complaint is denied.
Dated: November 13, 2003