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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Foreningen Roskilde Festival v. Martin Vindheim

Case No. D2004-0285

 

1. The Parties

The Complainant is Foreningen Roskilde Festival, Roskilde, Denmark, represented by Bruno Mеnsson, Denmark.

The Respondent is Martin Vindheim, IT Control AS, of Farsund, Norway.

 

2. The Domain Names and Registrar

The disputed domain names <roskilde-festival.biz>, <roskildefestival.biz>,

<roskilde-festival.com>, and <roskilde-festival.info> are registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 21, 2004. On April 21, 2004, the Center transmitted by email to

eNom a request for registrar verification in connection with the domain names at issue. On April 22, 2004, eNom 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 April 30, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was May 20, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 24, 2004.

The Center appointed Johan Sjцbeck as the sole panelist in this matter on May 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, paragraph 7.

 

4. Factual Background

The Complainant in this proceeding, Foreningen Roskilde Festival, is a non-profit society organized under the laws of the Kingdom of Denmark. The Complainant has based its Complaint on trademark rights to ROSKILDE FESTIVAL in accordance with the Danish Trademark Act § 3 subsection 3, dating back to the 1980s or at least in the beginning of the 1990s for entertainment, sporting, cultural and concert activities in class 41.

Furthermore, the Complainant has filed an application having priority from July 29, 2003, for the trademark ROSKILDE FESTIVAL with the Danish Patent and trademark Office (Application number VA 2003 02779) and with the Office for Harmonization in the Internal Market (Application number 003336691). The Complainant has provided copies of the applications.

The Respondent registered the domain name <roskilde-festival.com> on August 11, 2001, and the domain name <roskilde-festival.info> on October 19, 2001. The Respondent registered the domain names <roskilde-festival.biz> and <roskildefestival.biz> on August 5, 2003. The Complainant has provided copies of the relevant Whois search results, which have been confirmed by the concerned Registrar.

 

5. Parties’ Contentions

A. Complainant

Since 1971, the Complainant has arranged the largest North European music festival, known as ROSKILDE FESTIVAL. The festival takes place every year in Roskilde, Denmark at the end of June or in the beginning of July. The festival has been attended in the recent years by 75,000 paying guests.

The Complainant consists of 18 full-time employees and thousands of volunteers. The purpose of the Complainant’s business is to support initiatives that benefit children and young people as well as support humanitarian, non-profit and cultural work. The Complainant receives all its funds for the activities above from the annual ROSKILDE FESTIVAL. Over the past 32 years, the Complainant has distributed over 70 million DKK to organizations such as Doctors without Borders, Amnesty International, Support the Victims in Iraq, Save the Children and The World Wildlife Foundation (WWF).

The Complainant contends that it is the sole and exclusive owner of all rights to ROSKILDE FESTIVAL, including trademarks, copyright, licensing and merchandising rights.

Furthermore, the Complainant maintains that it has obtained trademarks rights to ROSKILDE FESTIVAL in accordance with the Danish Trademark Act § 3 subsection 3, at some point in the 1980s or at least in the beginning of the 1990s regarding the following goods and services in class number 41: entertainment, sporting, cultural and concert activities.

In addition to this, the Complainant has filed an application for registration of ROSKILDE FESTIVAL with the Danish Patent and Trademark Office and with the Office for Harmonization in the Internal Market (OHIM), having priority from July 29, 2003. The Complainant also refers to a letter from the Danish Patent and Trademark Office in which the Office states that the ROSKILDE FESTIVAL mark is sufficiently distinctive for various goods and services in class 25, 41 and 43.

The Complainant has intensively used the mark ROSKILDE FESTIVAL every year since 1971 in connection with the ROSKILDE FESTIVAL. The ROSKILDE FESTIVAL mark is inherently distinctive for the Complainant’s services and products. In addition to this, the ROSKILDE FESTIVAL mark has become unique and is identified by the public in Denmark solely with the Complainant and the Complainant’s services and products, not only by those who attend ROSKILDE FESTIVAL, but also among other members of the public.

The Complainant has submitted statistic material illustrating that the official website of ROSKILDE FESTIVAL “www.roskilde-festival.dk” had more than 500,000 unique user hits in 1999 and over 2,5 million unique user hits in 2003.

Statistics also show that there were 10,000 participants at ROSKILDE FESTIVAL in 1971 and that the number of participants increased to over 55,000 in 1989 and peaked in the middle of the 1990s with over 110,000 participants.

The Complainant argues that long before 1990, ROSKILDE FESTIVAL has been a huge event not only in Denmark but also internationally. The Complainant has submitted copies of promotion material from the last 18 years demonstrating a plethora of participating international artists and performers. The Complainant has also submitted numerous Danish and Norwegian newspaper articles describing ROSKILDE FESTIVAL in order to illustrate that ROSKILDE FESTIVAL is well known in Denmark and Norway.

The Complainant argues that the disputed domain names <roskilde-festival.biz>, <roskildefestival.biz>, <roskilde-festival.com> and <roskilde-festival.info> are identical or confusingly similar to the trademark ROSKILDE FESTIVAL, in which the Complainant has rights since the 1980s or at least the 1990s.

The Respondent has never been entitled to use the ROSKILDE FESTIVAL trademark and the Respondent’s use of ROSKILDE FESTIVAL is neither connected with, sponsored or authorized by, nor within the control of the Complainant.

In the summer of 2003, the Complainant became aware that the Respondent had registered the domain names <roskilde-festival.com> and <roskilde-festival.info>. The domain names were, and still are, redirected to the website “www.visit2scandinavia.com”, a website where you can rent domain names. The above mentioned website contain a link to the website “www.goldnames.biz” where the domain names were, and still are, offered for sale to the highest bidder.

On August 5, 2003, the Complainant contacted the Respondent via e-mail regarding the violation of the trademark rights and requested the two domain names to be transferred to the Complainant. The Respondent denied any violation of the Complainant’s trademark rights but explained that under certain conditions, he would be interested in renting the domain names to the proprietor of ROSKILDE FESTIVAL. Only 20 minutes after the Complainant had contacted the Respondent, the Respondent registered the domain names <roskildefestival.biz> and <roskilde-festival.biz> and posted them for sale to the highest bidder on the same website. After that, the Complainant attempted to contact the Respondent via e-mail on several occasions but the Respondent never replied. The Complainant has provided copies of the above-mentioned correspondence.

The Complainant contends that the Respondent was aware of ROSKILDE FESTIVAL before registering the disputed domain names and that the only reason for doing so was for the purpose of selling or renting the domain names to the Complainant or others and thereby making money on the goodwill connected with the ROSKILDE FESTIVAL mark. The fact that the Respondent is offering the domain names for sale to the highest bidder shall be regarded as evidence of bad faith registration and use within the meaning of Paragraph 4(b) of the Policy.

At no point in time has the Respondent used the domain names with a bona fide offering of goods or services, nor is the Respondent commonly known by the domain names and the Respondent is not making a legitimate non-commercial or fair use of the domain names.

The Complainant argues that the Respondent is a well-known domain name pirate and has submitted copies of Norwegian articles in order to illustrate the workflow of the Respondent. In an article from “Domene Avisa” by Mr. Erik W. Graver, about the Respondent’s domain name registrations, it is mentioned that the Respondent has posted a statement on his website “We have about 3.500 good domain names for sale”.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the Complainant must prove each of the following:

(i) that the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) that the domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

Although the Complainant has not yet obtained a registration for ROSKILDE FESTIVAL as a trademark, the Complainant maintains to be the owner of the trademark ROSKILDE FESTIVAL due to use in accordance to the Danish Trademark Act § 3 subsection 3. The Complainant claims that the protection for ROSKILDE FESTIVAL as a trademark due to use dates back to the 1980s or at least to the beginning of the 1990s for entertainment, sporting, cultural and concert activities in class 41. To support its claim, the Complainant has submitted evidence of continuous and persistent use of the mark ROSKILDE FESTIVAL for its products and services since the early 1970s to present time.

Based on the evidence presented in this proceeding, it is the opinion of the Panel that the Complainant has sufficiently shown that it has acquired trademark rights in the name ROSKILDE FESTIVAL through long-term use and that the Complainant has satisfied its burden of proof under paragraph 4(a)(i) of the Policy.

The disputed domain names <roskilde-festival.com>, <roskilde-festival.info> and <roskilde-festival.biz> incorporate the trademark ROSKILDE FESTIVAL in its entirety with the addition of a dash sign “-”, which is commonly used as a separation between two words and has little difference in similarity and identity analysis. (See Dreamworks L.L.C. v. Carol Maleti, WIPO Case No. D2003-0548, September 10, 2003.) The disputed domain name <roskildefestival.biz> incorporates the trademark in its entirety.

Having the above in mind, it is the opinion of the Panel that the domain names <roskilde-festival.com>, <roskilde-festival.info> and <roskilde-festival.biz> are confusingly similar to the Complainant’s trademark ROSKILDE FESTIVAL and that the domain name <roskildefestival.biz> is identical to the trademark ROSKILDE FESTIVAL in which the Complainant has rights.

B. Rights or Legitimate Interests

It has been alleged by the Complainant that the Respondent has no rights or legitimate interest in respect of the domain names <roskilde-festival.com>, <roskilde-festival.info>, <roskilde-festival.biz> and <roskildefestival.biz> and that to the best of the Complainant’s knowledge – the Respondent is not an owner of any trademark or equivocal similar to the disputed domain names. The Complainant claims that the Respondent never has been authorized, sponsored or entitled by the Complainant to use the ROSKILDE FESTIVAL trademark. The Complainant maintains that the Respondent has not made any legitimate non-commercial or fair use of the disputed domain names.

There is no evidence in the case that refute the Complainant’s submissions, and the Panel concludes that the Complainant has also proved the requirement under paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Under Paragraph 4(b) of the Policy, evidence of bad faith registration and use include:

(i) circumstances indicating the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of a trademark or to a competitor of the trademark owner, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or

(ii) circumstances indicating that the domain name were registered in order to prevent the owner of a trademark from reflecting the mark in a corresponding domain name, provided it is a pattern of such conduct; or

(iii) circumstances indicating that the domain name was registered primarily for the purpose of disrupting the business of a competitor; or

(iv) circumstances indicating that the domain name has intentionally been used in an attempted to attract, for commercial gain, Internet users to a website or other on-line location, by creating a likelihood of confusion with a trademark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on a website or location.

The Complainant contends the Respondent registered and is using the disputed domain names in bad faith. The Complainant maintains that the Respondent has been aware of ROSKILDE FESTIVAL before registering the disputed domain names and that the main reason for registering the domain names was for the purpose of selling or renting them to the Complainant or to another party.

The Complainant argues that the disputed domain names are offered for sale on the Respondent’s website and has submitted printouts from the Respondent’s website. From the submitted evidence, it is an undisputable fact that at least the domain names <roskilde-festival.com> and <roskilde-festival.info> have been offered for sale to the highest bidder on the Respondent’s website “www.goldnames.biz”.

It is also an undisputable fact that the Respondent declared via e-mail on August 5, 2003, that he, under certain circumstances, would be interested in renting the domain names<roskilde-festival.com> and <roskilde-festival.info> to the proprietors of ROSKILDE FESTIVAL.

The fact that the Respondent registered the domain names <roskilde-festival.biz> and <roskildefestival.biz> merely 20 minutes after being contacted by the Complainant suggests that the Respondent registered all of the domain names primarily for the purpose of selling or renting the domain names to the Complainant and in order to prevent the Complainant from reflecting the mark ROSKILDE FESTIVAL in corresponding domain names. By registering four domain names being confusingly similar and/or identical to the trademark ROSKILDE FESTIVAL, it is fair to say it is a pattern of such conduct.

Having all of the above in mind, the Panel concludes that the Complainant has proved the requirements under paragraph 4(b) of the Policy and that the domain names <roskilde-festival.com>, <roskilde-festival.info>, <roskilde-festival.biz> and <roskildefestival.biz> have been registered and used in bad faith.

 

7. Decision

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 names, <roskilde-festival.com>, <roskilde-festival.info>, <roskilde-festival.biz> and <roskildefestival.biz> be transferred to the Complainant.

 


 

Johan Sjцbeck
Sole Panelist

Date: June 9, 2004

roskildefestival.biz> be transferred to the Complainant.

 


 

Johan Sjцbeck
Sole Panelist

Date: June 9, 2004

 

Источник информации: https://internet-law.ru/intlaw/udrp/2004/d2004-0285.html

 

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