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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lindberg A/S v. Zuscom
Case No. D2007-1383
1. The Parties
The Complainant is Lindberg A/S, Bjarkesvej Denmark, represented by Lett Law Firm, Denmark.
The Respondent is Zuscom, London, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <lindbergusa.info> is registered with Wild West Domains, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2007. On September 20, 2007, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the domain name at issue. On September 20, 2007, Wild West Domains, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 1, 2007. The Center verified that the Complaint together with the amendment to 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 October 4, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was October 24, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 25, 2007.
The Center appointed Stefan Abel as the sole panelist in this matter on November 6, 2007. 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 large manufacturer of glasses having numerous representative offices in more than ninety countries around the world. The Complainant promotes his products and services on websites at different domain names, e.g. under the domain name <lindberg.com>.
The Complainant is doing business under its company name “Lindberg” and has filed applications for the trademarks LINDBERG in various countries. Among other trademarks, the Complainant is the registered owner of the Community Trademark 20252165 LINDBERG, registered for optical apparatus and instruments, filed for registration in 2001 and of the US trademark LINDBERG no. 2, 597, 445 filed in 2001, too.
The Respondent registered the contested domain name on April 17, 2007. The Respondent’s site at the disputed domain name contains a large number of links, in particular links to websites in English language offering glasses and related services.
5. Parties’ Contentions
In summary, the Complainant’s contentions are as follows:
The domain name at issue is confusingly similar with the Complainant’s well known trade mark LINDBERG. The part “usa” at the end of the disputed domain name is merely descriptive and a geographical indication, which does not in itself constitute distinctiveness. Customers may get the impression that the disputed domain name concerns the American branch of the Complainant.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent has not been granted any rights of the Complainant to obtain domain names that violate the intellectual property rights of the Complainant. Respondent seeks to gain profit by the current use of the website at the disputed domain based on the confusion the domain name may cause. There are no facts obvious whatsoever indicating that the Respondent has any rights or legitimate interests in the disputed domain name.
The Respondent registered the disputed domain name in bad faith. The Respondent must have known of the Complainant’s well known trademarks and the Respondent must be considered to be attempting to sell the domain name to the Complainant or a third party. In any event the Respondent is seeking illegally to exploit the goodwill related to the Complainant’s well known trademarks for commercial gain.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Policy provides for a transfer of a domain name if the Complainant establishes each of the following elements set out in paragraph 4(a) (i) to (iii) of the Policy:
- The Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the domain name; and
- The domain name has been registered and is being used in bad faith.
Paragraph 4 (b) of the Policy sets out certain circumstances which, in particular, but without limitation, shall be evidence of registration and use of the domain name in bad faith.
A. Identical or Confusingly Similar
The domain at issue is confusingly similar to the Complainant’s company name “Lindberg” and to its registered trademarks LINDBERG. The disputed domain consists of the Complainant’s company name and trademark LINDBERG in combination with the term “usa”. As a geographical indication of a country, “usa” lacks any distinctive character when combined with a company name or a trademark. In this context the term “usa” may be regarded as an indication for the company’s location or for the origin or destination of products marked “Lindberg”. The difference between the disputed domain and the Complainant’s trademarks can therefore not exclude the finding of confusing similarity.
B. Rights or Legitimate Interests
There is no indication that the Respondent is licensed or otherwise authorized by the Complainant to use its company name or its registered trademarks or to register the disputed domain name.
The disputed domain name does not have any apparent descriptive meaning in English, the language of the Respondent’s country and the language of the website the disputed domain name presently provides links to websites offering offering glasses and related services.
The term “Lindbergusa” or “Lindberg” is not used as designation for a person, company, services or products on the website of the disputed domain name.
By producing evidence on these circumstances, the Complainant has established a prima facie case that the Respondents lack rights and legitimate interests in the domain name. The burden of submitting evidence therefore shifts to the Respondent. The Respondent must then by concrete evidence demonstrate its rights or legitimate interests in that domain name in order to refute the prima facie case. The Respondent has made no such showing.
The Panel finds that the Respondent’s default in refuting the prima facie case made by the Complainant is sufficient to establish this element of the Policy. It is an impossible task for the Complainant to prove a negative that is primarily within the knowledge of the Respondent such as lack of rights or legitimate interests in the domain name. Producing evidence that the Respondent prima facie has no rights or legitimate interests in the domain name must therefore be regarded as sufficient to establish the requirement of paragraph 4(a) (ii) if the Respondent fails to rebut the prima facie case. This finding is consistent with the consensus in previous WIPO Panel decisions (see e.g. Belupo d.d. v. WACHEM d.o.o.,
WIPO Case No. D2004-0110).
C. Registered and Used in Bad Faith
The Panel finds that the Complainant has established this element in accordance with paragraph 4 (b) (iv) of the Policy for the following reasons:
The Panel finds that, by using the domain name for a set of links to commercial websites for the promotion of glasses and related services, the Respondent has intentionally attempted to attract, for commercial gain, internet users to its website by creating a likelihood of confusion with the Complainant’s LINDBERG company name and trademarks as to source, sponsorship and affiliation of the website. The domain name combines the Complainant’s LINDBERG company name and trademarks with a term which is descriptive of the place of the Complainant’s business. In addition to that, the Respondent’s website provides links to other websites promoting glasses and related services. Internet users are therefore likely to get the idea that the Respondent’s site of the disputed domain name is an official site of the Complainant sponsored by the Complainant or affiliated with the Complainant. Such likelihood of confusion would attract more customers to the site of the disputed domain name which will result in commercial gain as the Respondent’s site provides links to numerous commercial websites.
The Panel finds that the Respondent acted intentionally. It is not conceivable to the Panel that the Respondent could have registered the disputed domain name without having the Complainant and its trademarks in mind. The Respondent’s intention to use the disputed domain name as a reference to the Complainant and its trademarks is obvious considering that no rights or legitimate interests in using the domain name are apparent and considering that the Complainant is a large company doing business in a large number of countries who has registered its European and US trademarks years before the registration of the disputed domain name.
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 <lindbergusa.info> be transferred to the Complainant.
Dated: November 20, 2007