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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Dr. August Oetker Nahrungsmittel KG v. Beroca Holdings B.V.I. Limited

Case No. D2007-1664

1. The Parties

Complainant is Dr. August Oetker Nahrungsmittel KG of Germany.

Respondent is Beroca Holdings B.V.I. Limited of United Kingdom of Great Britain and Northern Ireland.

2. The Domain Name and Registrar

The disputed domain name <oetker.mobi> is registered with EuroDNS S.A.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 12, 2007. On November 12, 2007, the Center transmitted by email to EuroDNS S.A. a request for registrar verification in connection with the domain name at issue. On November 27, 2007, EuroDNS S.A. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. 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 Respondent of the Complaint, and the proceedings commenced on November 29, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was December 19, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 21, 2007.

The Center appointed Peter G. Nitter as the sole panelist in this matter on January 31, 2008. 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

Complainant manufactures and sells various food related products such as pastries, milk products, frozen pizza and frozen snack products.

Complainant has registered the trademarks OETKER and DR. OETKER in several jurisdictions worldwide. In the United Kingdom of Great Britain and Northern Ireland, which is the domicile of Respondent, Complainant has registered the trademark OETKER for the classes 29 and 30.

Complainant has also registered the domain names <oetker.eu>, <droetker.eu>, <oetker.co.uk>, <droetker.co.uk>, <oetker.de> and <droetker.de>.

The disputed domain name <oetker.mobi> was registered by Respondent on September 26, 2006.

Complainant has offered to pay Respondent’s out-of-pocket costs in return for Respondent’s transfer of the disputed domain name to Complainant. Respondent has not replied to Complainant’s offer.

5. Parties’ Contentions

A. Complainant

Complainant maintains that the disputed domain name is identical to Complainant’s OETKER trademark.

According to Complainant, Respondent is not generally known by, and has not acquired any rights to the disputed domain name.

Complainant explains that it has not granted Respondent the right to use the OETKER trademark for any purpose. According to Complainant the name “Oetker” is a rare family name in Germany and Complainant’s Internet searches do not reveal any use of the “Oetker” name by Respondent. Thus, Complainant maintains that Respondent does not have any rights or legitimate interests in, and that Respondent is not commonly known by, the disputed domain name.

Complainant holds that Respondent, due to his knowledge of the OETKER trademark and Complainant’s rights, has registered the contested domain name in bad faith. Respondent’s bad faith registration is according to Complainant further evidenced by the fact that Respondent has engaged in a pattern of registering domain names that infringe trademarks of third parties.

Complainant further holds that the <oetker.mobi> domain name is being used in bad faith through Respondent’s passive holding of the domain name.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

From the evidence presented, the Panel finds that Complainant through registration and use of the trademark OETKER has demonstrated rights in that trademark.

Previous Panel decisions under the UDRP have concluded that the generic top level domain denominator is irrelevant when determining whether a disputed domain name is confusingly similar to a protected trademark.

Thus, the issue only concerns the part of the disputed domain name which consists of the term “oetker” which is identical to Complainant’s distinctive trademark.

On this basis the Panel finds that the disputed domain name is identical to Complainant’s trademark OETKER.

B. Rights or Legitimate Interests

Respondent has, according to Complainant, not been granted any license or right to use Complainant’s marks in any manner by Complainant, and is not commonly known by these marks.

Respondent has not filed any response arguing that it has rights to, or legitimate interests in, the disputed domain name. None of the Complainant’s assertions have thus been contested by the Respondent.

In the event that any such rights, connections or affiliations existed, it would generally be relatively easy for a respondent to substantiate this, while it is generally difficult for a complainant to prove the negative that respondent has no such rights. For this reason, previous decisions under the UDRP have, in the event of a respondent’s default, found it sufficient for complainant to make a prima facie showing of its assertion pursuant to paragraph 4(c) of the Policy.

The Panel finds that the circumstances mentioned above, and evidenced by Complainant are sufficient to establish a prima facie showing that Respondent has no rights or legitimate interests in the domain name at issue.

As Respondent has not rebutted this by demonstrating any of the circumstances that constitute rights to, or legitimate interests in, the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy, the Panel concludes that the Respondent does not have any rights or legitimate interests in respect of the domain name at issue.

C. Registered and Used in Bad Faith

Based on the evidence presented to it, the Panel finds that Respondent has engaged in a pattern of registering domain names that infringe trademarks of third parties. Cf. Advance Magazine Publishers Inc. v. Beroca Holdings B.V.I. Limited, WIPO Case No. D2007-0026; Kurt Geiger Limited and Beroca Holdings B.V.I. Limited, WIPO Case No. D2007-0195; Clifford Chance LLP v. Beroca Holdings B.V.I. Limited, WIPO Case No. D2007-0693. In each of these, as well as in several other cases Respondent has been found to have registered the disputed domain names in bad faith.

According to UDRP practice, such a pattern of registration is evidence of bad faith registration. See e.g. Doctor. Ing.h.c. F. Porsche AG v. Stoneybrook Investment Limited, WIPO Case No. D2001-1095.

Considering the widespread use and fame of Complainant’s trademarks, as evidenced by Complainant, the Panel further finds it highly unlikely that Respondent, at the time of registration, was not familiar with the trademark OETKER.

The Panel therefore finds that the disputed domain name was registered in bad faith.

According to paragraph 4(a)(iii) of the Policy, the domain name at issue must also have been used in bad faith for the Panel to find that the conditions in paragraph 4(a)(iii) are fulfilled.

As indicated above Respondent is not actively using the contested domain name. According to UDRP practice this does not, however, prevent a finding of bad faith. This is reflected in the WIPO Overview Paragraph 3.2 and in UDRP practice. See, e.g., Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

The Panel is required to examine all the circumstances of the case to determine if the domain name is being used in bad faith in accordance with paragraph 4(a)(iii) of the Policy.

In this case, the trademark contained in the contested domain name is, in the Panel’s view, widely known. Additionally, there is no response from Respondent. As already mentioned the Panel has also found it evidenced that Respondent has engaged in a pattern of conduct preventing trademark holders from reflecting their marks in corresponding domain names.

Based on the above, the Panel finds it impossible to conceive any good faith use of the domain name.

The Panel thus finds that the contested domain is being 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 name, <oetker.mobi> be transferred to the Complainant.


Peter G. Nitter
Sole Panelist

Dated: January 14, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1664.html

 

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