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and Mediation Center
Mejeriforeningen Danish Dairy Board v. Spiral Matrix
Case No. D2006-0233
1. The Parties
The Complainant is Mejeriforeningen Danish Dairy Board, Aarhus, Denmark, represented by Lett Law Firm, Denmark.
The Respondent is Spiral Matrix, Kentech Company, Eldoret, Kenya.
2. The Domain Name and Registrar
The disputed domain name <wwwlurpakbreakfast.com> is registered with
Intercosmos Media Group d/b/a directNIC.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 23, 2006. On February 23, 2006, the Center transmitted by email to Intercosmos Media Group, Inc d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On February 23, 2006, Intercosmos Media Group, Inc d/b/a directNIC.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 6, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was March 26, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 27, 2006.
The Center appointed Mary Vitoria, QC as the Sole
Panelist in this matter on April 3, 2006. 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 is a company incorporated under the laws of Denmark and is the central organization for Danish dairy companies. It is the owner of many trademarks which comprise or include the word LURPAK in the United States, Canada, Great Britain, Denmark and of two Community trademarks which comprise or include the word LURPAK. Copies of the registrations were annexed to the Complaint. It is the owner of a large number of domain names which include the word “lurpak” including <lurpakbreakfast.com> and <lurpakbreakfast.co.uk>. The domain name <lurpakbreakfast.com> was registered on April 4, 2005. All the marks are registered for dairy products one of which is marketed under the LURPAK BREAKFAST brand.
The respondent is located in Kenya. It registered
the disputed domain name on November 13, 2005. The domain name <wwwlurpakbreakfast.com>
gives access to a website which is used as a search engine for different kinds
of companies selling different types of goods. The website states that the domain
name <wwwlurpakbreakfast.com> is for sale and directs interested persons
to another website “www.kenyatech.com” and invites them to make
an offer for the domain name.
5. Parties’ Contentions
The following is taken from the Complaint:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights
All the Complainant’s trademarks are used for dairy products, in particular butter products, which are sold all over the world. The Complainant is also the owner of the domain names <lurpakbreakfast.com> and <lurpakbreakfast.co.uk>, which are used to promote the LURPAK BREAKFAST brand. The disputed domain name is an obvious case of “typosquatting” the Complainant’s trademarks and domain names, by attempting to profit by misspells and omission typos of “www.lurpakbreakfast.com” by Internet users. The disputed domain name is identical to the rights belonging to the Complainant. The domain name <wwwlurpakbreakfast.com> is used as a search engine for different kinds of companies selling different kinds of goods. For instance, there is a link to Dell Computers, if one clicks on “Computer”. On all the pages on the Respondent’s website it says that that the domain name is for sale. If one clicks on the icon one is linked to the website of the Respondent, “www.kenyatech.com”, where one is asked to make an offer on this particular domain name. The content on “wwwlurpakbreakfast.com” is in Danish and links only to Danish websites.
(ii) The Respondent has no rights or legitimate interests in respect of the domain name
The Complainant is the legitimate owner of trademarks and domain names which incorporate the LURPAK trademark. The Respondent is not affiliated to the Complainant in any way and the Respondent has not been authorized to use or register the Complainant’s trademarks or to seek the registration of any domain name incorporating the trademark. The domain name is almost identical to the Complainant’s rights so the Respondent can not reasonably claim that they have any legitimate interest in the domain name or that they are intending to develop a legitimate interest in the domain name. The Respondent has, to the knowledge of the Complainant, no older rights to the LURPAK BREAKFAST than the rights belonging to the Complainant. The two domain names belonging to the Complainant were registered on April 4, 2005, and the disputed domain name was registered on November 13, 2005. By registering the disputed domain name the Respondent is trying to divert consumers to their website instead of to the website belonging to the Complainant, which they are trying to reach. The traffic generated on the disputed website is therefore not a traffic that is legitimate to the Respondent. The domain name is registered with the sole purpose of selling the domain name to the highest bidder and is clearly an attempt to “typosquat” the Complainant’s trademark rights to LURPAK and LURPAK BREAKFAST and through this obtain as many hits on their website as possible and thereby gain a profit on the links forwarded to the different companies advertising on the website.
(iii) The domain name was registered and is being used in bad faith
LURPAK is a well-known trademark. The Respondent must, without any doubt, have been aware of the rights belonging to the Complainant and must have had the Complainant in mind when registering the domain name, since the Respondent has combined the same two words as the Complainant; “lurpak” and “breakfast”. By registering a domain name corresponding to a well-known trademark of which the Respondent must have been aware, the Respondent’s intention is to divert as much traffic as possible, for commercial gain, to their website by creating likelihood of confusion with the Complainant’s rights. It is the opinion of the Complainant that the Respondent has both registered and is using the domain name in bad faith.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
6.1 According to paragraph 15(a) of the Rules, the Panel must decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
6.2 In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements are satisfied:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
6.3 Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies on the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel may draw such inferences therefrom, as it considers appropriate.
6.4 Since the Respondent failed to respond to the Complaint within the stipulated time, the Panel assumes that the Respondent admits, and does not contest, all the facts asserted by the Complainant in the Complaint. Upon careful review of the evidential materials submitted by the Complainant to support its contentions, the Panel finds that:
A. Identical or Confusingly Similar
6.5 The domain name <wwwlurpakbreakfast.com> is confusingly similar to the trademark LURPAK in which the Complainant has rights in many countries in the world. The addition of the commonly known initials “www” and of the common descriptive term “breakfast” do not exclude confusingly similarity. The trademark LURPAK is distinctive and is entirely reproduced in the disputed domain name and the combination of that trademark with the initials “www” and the word “breakfast” does not eliminate the risk of confusion but, on the contrary, suggests that the domain name <wwwlurpakbreakfast.com> refers to the owner of the LURPAK trademarks, that is to say the Complainant.
B. Rights or Legitimate Interests
6.6 The Respondent is not affiliated to the Complainant in any way and the Respondent has not been authorized to use or register the Complainant’s trademarks or to seek registration of any domain name incorporating the trademark. The Complainant has prior rights in the trademark LURPAK which precede for many years the Respondent’s registration of the domain name. The Respondent is not currently and has never been known under the word LURPAK or under a combination of this word with the initials “www” and the word “breakfast”. The disputed domain name resolves to a website which acts as a sponsored search engine for a variety of companies and their products. There appears to be no natural semantic connection between the disputed domain name and the contents of the website. The Complainant asserts that the Respondent by registering the disputed domain name is seeking to divert customers trying to access one of the Complainant’s websites to the Respondent’s website and has, furthermore, registered the disputed domain name for the purpose of selling it to the highest bidder. The Panel accepts that the Complainant’s assertions that the Respondent has no rights or legitimate interests in the domain name <wwwlurpakbreakfast.com>.
C. Registered and Used in Bad Faith
6.7 The Complainant submits that bad faith is shown by the following:
(a) It is without doubt that the Respondent when it registered the disputed domain name was aware of the Complainant’s well known trademark LURPAK and of the Complainant’s rights because the Respondent combined the same two words “LURPAK” and “breakfast”
(b) The Respondent registered the disputed domain name, being aware of the well-known trademark LURPAK, for the sole purpose of generating commercial gain by intentionally taking advantage of internet traffic intended for the Complainant by creating a likelihood of confusion with the Complainant’s rights.
6.8 Having considered the evidence submitted with the Complaint, the Panel accepts that the trademark LURPAK is well known in relation to dairy products both in Denmark, the home country of the Complainant, and in many English-speaking countries, in particular in those where its trademark LURPAK has been registered for many years. There is no natural association between the word LURPAK, which as far as English speakers are concerned is an invented word, and the activities carried on at the Respondent’s website. The Panel finds that the only possible reason for the Respondent to use the invented word LURPAK and to associate the word LURPAK with the word “breakfast” was that it hoped to gain from that use and from that association which had originally been devised and then used as a component of a domain name by the Complainant.
6.9 The Panel concludes that by registering and using the disputed domain name, the Respondent intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s trademark LURPAK as to the source, sponsorship, affiliation, or endorsement of its website “wwwlurpakbreakfast.com”.
6.10 The Panel concludes that the Respondent registered
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 <wwwlurpakbreakfast.com> be transferred to the Complainant.
Mary Vitoria, QC
Dated: April 11, 2006