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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Grundfos A/S v. Equipment Agents

Case No. D2006-0242

 

1. The Parties

The Complainant is Grundfos A/S, Bjerringbro, Denmark, represented by Delacour Law Firm, Denmark.

The Respondent is Equipment Agents, Toronto, Canada.

 

2. The Domain Name and Registrar

The disputed domain name <grundfos-pumps.net> is registered with Melbourne IT trading as Internet Names Worldwide, Melbourne, Australia.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 27, 2006. On February 28, 2006, the Center transmitted by email to Melbourne IT trading as Internet Names Worldwide a request for registrar verification in connection with the domain name at issue. On March 1, 2006, Melbourne IT trading as Internet Names Worldwide 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 7, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was March 27, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 28, 2006.

The Center appointed Anders Janson as the Sole Panelist in this matter on April 7, 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 part of the Grundfos Group, a manufacturer of circular pumps based in Denmark and established in 1945. The Grundfos Group has almost 12,500 employees and the net turnover in 2004 was DKK 12,153 millions. The Grundfos Group is represented by more than 50 companies worldwide; including Grundfos Canada Inc. which has an annual sales of CAD 33.1 millions in 2005.

The Complainant’s trademark GRUNDFOS is, according to the Complainant, registered worldwide. The Complainant has trademark registrations in Denmark and Canada;

- Registration VR 1968 02852 of GRUNDFOS, registered on June 12, 1967, in the Kingdom of Denmark for the classes 1-42.

- Registration no 244 975 of GRUNDFOS, registered on May 16, 1980, in Canada.

The Panel notes that the registration date of the two above mentioned registrations predates the registration of the disputed domain name by the Respondent, which was on September 3, 2005. The Complainant furthermore operates its website, “www.grundfos.com.”

The Respondent is Equipment Agents, with a stated address in Toronto, Canada. The disputed domain name links to the website “www.pumpagents.com”. This website offers pumps of other brands than GRUNDFOS.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that:

- The disputed domain name is confusingly similar to a trademark or a service mark in which the Complainant has rights;

- The Respondent has no rights or legitimate interests in respect of the disputed domain name;

- The disputed domain name has been registered and is being used in bad faith; and

- The disputed domain name <grundfos-pumps.net> should be transferred to the Complainant.

B. Respondent

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

 

6. Discussion and Findings

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(i) that the disputed domain name registered by the Respondent 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 disputed domain name; and

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

A. Identical or Confusingly Similar

The domain name at issue is <grundfos-pumps.net>. The Complainant is the holder of a number of registered trademarks of the word “grundfos”. The Panel finds that the Complainant established that GRUNDFOS is a well - recognized trademark and that the trademark is both distinctive and famous. The disputed domain name contains the Complainant’s mark GRUNDFOS in its entirety, with the added suffix “pumps” and the generic and functional top level domain name “.net”. In determining whether a domain name and a trademark are identical or confusingly similar, the gTLDs and ccTLDs that constitute the suffix shall be disregarded. The question is therefore if the addition of the suffix “pumps” makes the disputed domain name dissimilar to the Complainant’s registered trademarks.

In previous UDRP decisions, the panels have found that the fact that a domain name incorporates a complainant’s registered mark may be sufficient to establish identity or confusingly similarity for the purpose of the Policy (Oki Data Americas Inc v. the ASD Inc, WIPO Case No. D2001-0903 and CSC Holdings, Inc. v. Elbridge Gagne, WIPO Case No. D2003-0273).

The Panel finds that the term GRUNDFOS is the distinctive part of the disputed domain name, and the generic term “pumps” adds little to the overall impression of the disputed domain name. Internet users are very likely to assume that the addition of the word “pumps” to the trademark GRUNDFOS signifies the website associated with the Complainant. The Panel finds that the addition of the suffix “pumps” does not diminish the similarity between the disputed domain name and the Complainant’s trademark especially bearing in mind that the Complainant is one of the world’s largest manufacturers of pumps.

The disputed domain name must therefore be considered confusingly similar to the trademark GRUNDFOS. The panel holds that the Complainant has established the first element of the Policy, paragraph 4(a).

B. Rights or Legitimate Interests

The Complainants asserts that the Respondent is actively using the disputed domain name in relation to the website offering pumps of various brands competing with the Complainant’s pumps. The Respondent is, according to the Complainant, using the disputed domain name for commercial gain by attracting customers for other pump brands and thus creating a likelihood of confusion with the Complainant’s well-known trademark GRUNDFOS.

The Respondent has not filed a Response. In those circumstances, when the Respondent does not have an obvious connection with the disputed domain name, the mere assertion from the Complainant that the Respondent has no right or legitimate interest is enough to shift the burden of proof to the Respondent to demonstrate that such right and legitimate interest exists.

The Respondent has not demonstrated or argued that he used or prepared to use the disputed domain name in connection with a bona fide offering of goods or services or that any other rights or legitimate interests exist. Registration of a domain name in itself does not establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy.

In conclusion, the Respondent has not presented any evidence of rights or legitimate interests in using the disputed domain name and has no obvious connection to it. The Panel therefore holds that the Complainant has established element (ii) of the Policy’s paragraph 4(a).

C. Registered and Used in Bad Faith

Paragraph 4(b) states four (non-exclusive) circumstances which, if found to be present, are deemed to provide evidence of bad faith in registering and using the domain name.

Paragraph 4(b)(iv) states that a circumstance indicating bad faith is using a domain to intentionally attract, for commercial gain, Internet users to the respondent’s website or other on - line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s website or location or of a product or service.

The Complainant has asserted that the Respondent’s registration and use of the disputed domain name is undoubtedly made in bad faith with regard to the Complainant’s the well-known trademark GRUNDFOS. The Complainant has furthermore asserted that it must be taken into account that (1) GRUNDFOS is a well - known trademark, (2) the Respondent has used a designation identical with the Complainant’s well - known trademark as the clearly characteristic part of the registered domain name, (3) the Respondent is using the disputed domain name for commercial gain on the website under the disputed domain name, marketing products competing with the Complainant’s trademark rights, and (4) the Respondent, a wholesaler of pumps and pump systems, must clearly be considered to be familiar with the Complainant and the Complainant’s trademark rights.

The Complainant has established that the mark GRUNDFOS is distinctive and famous. An Internet user searching for products provided by the Complainant is likely to visit the Respondent’s website. The Panel considers it highly unlikely that the Respondent by coincidence have registered the disputed domain name, which is different from the Complainant’s trademark only by the addition of the suffix “pumps.” As a wholesaler of pumps and pump systems the Respondent has registered the disputed domain name only to attract customers, looking for products from the Grundfos Group, to market pumps of brands competing with the Complainant, hence using the Complainants well - established trademark for its own commercial gain. Furthermore, the Respondent has not presented any reasons, evidence or arguments of a legitimate interest in using the disputed domain name. There are no obvious reasons for the Respondent to have a legitimately use of the domain name. As has been established above, the only use of the domain name seems to be to market and offer products in mere competition to the Complainant.

The Panel therefore concludes that the Complainant has proven that the Respondent was acting in bad faith pursuant to Paragraph 4(a)(iii) of the Policy.

 

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 name <grundfos-pumps.net> be transferred to the Complainant.


Anders Janson
Sole Panelist

Dated: April 21, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0242.html

 

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