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WIPO Arbitration and
Ann Summers Limited v. Simon Sheppard
Case No. D2004-0207
1. The Parties
The Complainant is Ann Summers Limited, of Surrey, United Kingdom of Great Britain and Northern Ireland, represented by Pinsents, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Simon Sheppard, Yorkshire, United Kingdom of Great Britain
and Northern Ireland.
2. The Disputed Domain Name and Registrar
The disputed domain name <annsummers.org> ("the Disputed Domain
Name") is registered with BulkRegister.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 17, 2004. On March 18, 2004, the Center transmitted by email to BulkRegister.com a request for registrar verification in connection with the Disputed Domain Name. On March 19, 2004, 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 March 24, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was April 3, 2004. The Respondent who did receive an e-mail copy of the Complaint did not submit any response. Accordingly, the Center notified the Respondent's default on April 15, 2004.
The Center appointed Michael D. Cover as the sole panelist in this matter on
April 27, 2004. 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,
4. Factual Background
The Respondent has not disputed the following facts submitted by the Complainant:
The Complainant is the proprietor of a number of trade mark registrations in the United Kingdom and the European Community.
Since at least as early as 1972, the Complainant has been using the ANN SUMMERS
name in over 100 stores located in the United Kingdom, Ireland, the Channel
Islands and Spain. Accordingly, the Complainant has established common law rights
in addition in the name ANN SUMMERS.
5. Parties' Contentions
The Complainant contends that the Disputed Domain Name is identical to the various trade mark registrations of the Complainant for ANN SUMMERS. The Complainant also contends that the Disputed Domain Name is identical to the name ANN SUMMERS in connection with which the Complainant has built up substantial business and hence goodwill and reputation.
The Complainant contends that the Respondent has no rights or legitimate interest in the Disputed Domain Name, in that the Respondent has not demonstrated any use or preparation to use the Disputed Domain Name. It notes that the Disputed Domain Name is pointed at another site which contains anti-Semitic writings. The Complainant also contends that the Disputed Domain Name does not in any way correspond to the Respondent's name, the other site already mentioned or any corporate entity with which, so far as the Complainant is aware, the Respondent is connected. Further, it is contended by the Complainant that the Respondent is not making legitimate non-commercial or fair use of the Disputed Domain Name and that the diversion to the anti-Semitic website is likely to tarnish the reputation in the Complainant's ANN SUMMERS marks and the business connected with them.
The Complainant goes on to contend that the Disputed Domain Name was registered and is being used in bad faith. It notes the diversion from the Disputed Domain Name already mentioned and refers to the series of cases that confirm that diversion to an offensive site constitutes bad faith. The Complainant also contends that bad faith may be presumed where the whole of a well-known trade mark has been taken into, in this case, the Disputed Domain Name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires that the Respondent, as registrant of the Disputed Domain Name, submits to a mandatory administrative proceedings in the event that the Complainant establishes;
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has established its rights in the trade mark ANN SUMMERS, both as part of its registered trade marks ANN SUMMERS (& device ) and by establishing Common Law rights in the name ANN SUMMERS.
The Disputed Domain Name incorporates in whole the Complainant's trade mark ANN SUMMERS. The Disputed Domain Name is identical to the Complainant's trade mark ANN SUMMERS.
B. Rights or Legitimate Interests
The Complainant contends that the Respondent has no rights or legitimate interest in the Disputed Domain Name. The Panel finds that there is no evidence of use (or preparations for use) in connection with a bona fide offering of goods or services nor that the Respondent is commonly known by the Disputed Domain Name nor that the Respondent is making legitimate non-commercial or fair use of the Disputed Domain Name. The Panel also finds that the diversion from the Disputed Domain Name is particularly offensive.
For all the reasons given above, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name.
C: Registered and Used in Bad Faith
The non-exhaustive list set out in the Policy relating to bad faith includes the fact that the Respondent has registered the Disputed Domain Name primarily to disrupt the business of a competitor. The Panel finds that this is the case here.
It is also well established that the diversion of the Disputed Domain Name
to a pornographic or offensive website constitutes bad faith (see, for example,
Sparco S.p.A. v. Mr Oleg Filipov- Guevreyan WIPO
Case No. DLA2003-0001). The Panel so finds in this case.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy
and 15 of the Rules, the Panel orders that the Disputed Domain Name < annsummers.org>
be transferred to the Complainant.
Michael D. Cover
Dated: May 7, 2004