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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Grundfos A/S v. Spiral Matrix

Case No. D2006-1296

 

1. The Parties

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

The Respondent is Spiral Matrix, Eldoret, Kenya.

 

2. The Domain Name and Registrar

The disputed domain name <grundofs.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 October 6, 2006. On October 9, 2006, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On October 10, 2006, Intercosmos Media Group 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 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, paragraph 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 18, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was November 7, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 8, 2006.

The Center appointed Clive N.A. Trotman as the Sole Panelist in this matter on November 13, 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

This background information was provided, with supporting documentation, by the Complainant.

The Complainant company, Grundfos A/S of Denmark, is part of the Gundfos Group established in 1945, which is now owned by the Swiss company Grundfos Holdings AG, which in turn is 85% owned by the Danish Poul Due Jensen Foundation. Grundfos Group is one of the world’s largest manufacturers of circular pumps, producing more than 10,000,000 pumps annually. It employs over 13,000 people (2005 figures) and has an annual turnover exceeding 13,000 million Danish Kroner (DKK). The company’s markets around the world include Kenya (where the Respondent’s address is registered), with Kenyan sales worth around 2.4 million Euros annually through the South African sales office Grundfos (Pty) Ltd.

The Complainant’s trademark name was originally GRUNDFOSS, which in 1967 was changed to GRUNDFOS. The trademark GRUNDFOS is registered in many countries world-wide including Kenya, where it was registered in 1968. The Complainant company is well known in its context around the world and received favorable comment in an article about “10 great companies to work for” in Fortune magazine of January 20, 2003.

The Complainant promotes its products and services on a website with the domain name <grundfos.com>, which receives many visitors.

The disputed domain name <grundofs.com> was registered by the Respondent in January 2006.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name <grundofs.com> is confusingly similar to the trademark GRUNDFOS in which the Complainant has rights. Apart from the gTLD identifier “.com”, which is not relevant in the determination of confusing similarity, the disputed domain name differs from the trademark only by the transposition of the adjacent letters “fo” to become “of”.

The Complainant’s trademark has previously been held to be very well known (Grundfos A/S v. Orion Web, WIPO Case No. D2005-0618).

The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name and there are no facts or evidence showing that it could have.

The Complainant contends that the disputed domain name has been registered and is being used in bad faith. The transposition of the adjacent letters “fo” in the trademark, to become “of” in the disputed domain name, constitutes “typosquatting”, i.e., the expectation that some Internet users will make this typing mistake and be misdirected to the Respondent’s website. From there, misdirected users are linked to commercial offerings from which the Respondent may derive revenue.

The same Respondent has twice previously been the subject of adverse decisions in respect of domain names incorporating the trademark GRUNDFOS (Grundfos A/S v. Orion Web, WIPO Case No. D2005-0618 and Grundfos A/S v. Kentech, Inc., WIPO Case No. D2006-0408); thus the Complainant states that the Respondent must reasonably have been aware of the Complainant’s trademark.

The Complainant requests that the disputed domain name be transferred to the Complainant.

B. Respondent

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

 

6. Discussion and Findings

Jurisdiction of Administrative Panel

Paragraph 4(a) of the Policy states:

“You are required to submit to a mandatory administrative proceeding in the event that a third party (a ‘complainant’) asserts to the applicable Provider, in compliance with the Rules of Procedure, that:

(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) you have no rights or legitimate interests in respect of the domain name; and

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

Complainant has made the relevant assertions as above. This dispute is properly within the scope of the Policy and the Administrative Panel has jurisdiction to decide the dispute.

Whether the Domain Name is Identical or Confusingly Similar to a Trademark

The Complainant owns the trademark GRUNDFOS and operates a website at the Internet address “www.grundfos.com”. The disputed domain name is <grundofs.com>. Since it is well established in precedent that the gTLD identifier “.com” is of no consequence in the determination of confusing similarity or otherwise, the question is whether the Respondent’s composition “grundofs” is confusingly similar to the Complainant’s trademark GRUNDFOS. On the facts, the Panel finds that the two would easily be mistaken for each other and that the disputed domain name is confusingly similar to the Complainant’s trademark. Accordingly the Panel finds for the Complainant in the terms of Paragraph 4(a)(i) of the Policy.

Whether Respondent Has Rights or Legitimate Interests in Respect of the Domain Name

The Complainant must prove that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Since this requires the proving of a negative, the Complainant has followed the convention of setting out a prima facie case to the effect that the Complainant has never given the Respondent any right to use its trademark and there is no possible reason whereby the Respondent could have such a right. The Respondent has not refuted this assertion or provided any evidence that it has any right or legitimate interest in the disputed domain name. There is no evidence that the Respondent's activities correspond to any of the illustrative circumstances in Paragraph 4(c) of the Policy by which such rights may be established. The Respondent has not offered any evidence that, before any notice of the dispute, its use of the domain name or a name corresponding to the domain name was in connection with a bona fide offering of goods or services (Paragraph 4(c)(i)); or that it has been commonly known by the domain name (Paragraph 4(c)(ii)); or that it was making a legitimate noncommercial or fair use of the domain name (Paragraph 4(c)(iii)).

Accordingly the Panel finds for the Complainant under Paragraph 4(a)(ii) of the Policy.

Whether the Domain Name Has Been Registered and Is Being Used in Bad Faith

Paragraph 4(a)(iii) of the Policy requires the Complainant to prove that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) lists four circumstances that, without limitation, shall be evidence of the registration and use of a domain name in bad faith. Paragraph 4(b)(iv) provides for a finding of bad faith where:

“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.”

The disputed domain name is in use, because according to the Complainant’s evidence, it resolves to a website promoting, directly or indirectly, a variety of goods and services. The conclusion is inescapable that the Respondent seeks to derive commercial benefit by this activity.

The Complainant contends that the Respondent must be aware of the GRUNDFOS trademark. In support of this contention the Complainant cites Grundfos A/S v. Orion Web, WIPO Case No. D2005-0618 and Grundfos A/S v. Kentech, Inc., WIPO Case No. D2006-0408, and argues that the Respondent contact details in each case lead to the conclusion that the guiding mind behind them is the same as in the present case. On the facts, and in the absence of any rebuttal by the Respondent, the Panel accepts this contention.

The Panel finds that the Respondent knew of the Complainant’s trademark name and intentionally attempted to attract Internet users to its website for commercial gain. It did so by the well-known means of typo-squatting or typo-piracy, which is to have a domain name waiting to catch those Internet users who make an inadvertent but predictable error in typing, then confusing those Internet users into thinking they have found the website they seek. The Respondent has sought to profit unfairly at the expense of the Complainant’s goodwill by diverting potential customers away from the Complainant’s website. Such a strategy has long been recognised as unacceptable bad faith (Playboy Enterprises International Inc. v. SAND WebNames - For Sale, WIPO Case No. D2001-0094; Travelprice Com v. Pissin Chicken Inc., WIPO Case No. D2002-0129; Novus Credit Services Inc. v. Personal, WIPO Case No. D2000-1158; World Wrestling Federation Entertainment, Inc. v. Matthew Bessette, WIPO Case No. D2000-0256; InfoSpace.com, Inc. v. Registrar Administrator Lew Blanck, WIPO Case No. D2000-0069). The Panel finds bad faith proven in the terms of Paragraph 4(b)(iv) of the Policy.

The Complainant states in evidence, uncontested, that the Respondent’s links lead to merchandise including circular pumps, which are the Complainant’s speciality. Accordingly the Complainant and the Respondent are competitors and the Panel additionally finds the conduct of the Respondent to constitute disruption of the business of a competitor in the terms of Paragraph 4(b)(iii) of the Policy.

 

7. Decision

In summary, the Panel finds the disputed domain name <grundofs.com> to be confusingly similar to the Complainant’s trademark GRUNDFOS in terms of Paragraph 4(a)(i) of the Policy; that the Respondent has no rights or legitimate interests in the domain name in terms of Paragraph 4(a)(ii); and that the domain name was registered and is being used in bad faith in terms of Paragraph 4(a)(iii) of the Policy.

For all the foregoing reasons, in accordance with paragraph 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <grundofs.com> be transferred to the Complainant.

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Dr Clive N. A. Trotman
Sole Panelist

Dated: November 27, 2006