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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

E.I. Du Pont de Nemours and Company v. Stefan Svensson

Case No. D2008-0266

 

1. The Parties

Complainant is E.I. Du Pont de Nemours and Company, of United States of America, represented by Albihns International IP & Law Offices, Sweden.

Respondent is Stefan Svensson, of Sweden.

 

2. The Domain Name and Registrar

The disputed domain name <teflonminne.org> is registered with CSL Computer Service Langenbach GmbH dba Joker.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 21, 2008. On February 22, 2008, the Center transmitted by email to CSL Computer Service Langenbach GmbH dba Joker.com a request for registrar verification in connection with the domain name at issue. On February 26, 2008, CSL Computer Service Langenbach GmbH dba Joker.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Complainant filed an amendment to the Complaint on March 3, 2008. The Center verified that the Complaint 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 March 7, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was March 27, 2008. The Response was filed with the Center on March 25, 2008.

Complainant submitted a supplement filing on April 4, 2008. In response to this, Respondent submitted a supplement filing on April 10, 2008. The Panel accepted supplemental filings from both parties.

The Center appointed Peter G. Nitter as the sole panelist in this matter on April 3, 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 is a science company, established in 1802, providing a wide range of products and services.

Complainant has used the trademark TEFLON commercially since the mid 1940’s, and has also registered the TEFLON trademark in several jurisdictions worldwide including in Sweden which is also the registered domicile of Respondent.

The TEFLON trademark is used in a wide variety of industrial and consumer applications referring to a certain non-stick coating for use on cook ware manufactured by Complainant.

The disputed domain name was registered on April 17, 2002.

Complainant sent a cease and desist letter to Respondent on April 4, 2007, and the Parties have thereafter discussed the dispute through the exchange of several letters and e-mails. This correspondence has not lead to a solution of the issue at hand.

 

5. Parties’ Contentions

A. Complainant

Complainant maintains that all three conditions paragraph 4(a) of the Policy are present.

Complainant argues that the disputed domain name is confusingly similar to Complainant’s trademark. According to Complainant it is obvious that the domain name seems to originate from the trademark, and that the allusion and association to the Complainant’s trademark are evident in the domain name, both figurative and by it signification.

Complainant asserts that TEFLON is one of the world’s best known trademarks, and argues that Respondent has no right or legitimate interest in the domain name.

According to Complainant Respondent has not been commonly known by the disputed domain name, and its use is thus without any legitimate interest with respect to a well known trademark such as Complainant’s.

Further, Complainant asserts that even if Respondent does not have a commercial interest in the use of the disputed domain name, the purpose of such an interest cannot be eliminated. Furthermore, the possible lack of commercial interest is according Complainant’s view insignificant because of the trademark’s extensive legal protection and the risk of confusion.

Complainant asserts that the word “teflonminne”, forming the distinctive element of the disputed domain name, is not a word of the Swedish language, as evidenced by the fact that the word is not included in The Swedish Academic Glossary (SAOL), being the most authoritative dictionary in regards to the Swedish language.

Complainant further holds that the domain name was registered and is being used in bad faith. Complainant argues that the domain name’s allusion to the non-stick attributes of the trademark establishes Respondent’s knowledge of the TEFLON mark.

Complainant further holds that even if Respondent did not register the domain name in bad faith, the continuing use of the disputed domain name despite several letters from Complainant, puts Respondent in bad faith after having received the letters.

Complainant also argues that Respondent is using the disputed domain name to attract Internet users to Respondent’s website by creating confusion with Complainant’s trademarks.

In addition Complainant argues that the website connected to the disputed domain name contains improper material which Complainant does not wish to be associated with, and that the use of the disputed domain name can cause damage to Complainant’s trademark and reputation.

Complainant also indicates that bad faith may be evidenced by the fact that persons being part of Respondent’s group have registered two other domain names incorporating Complainant’s trademark, namely <drf.teflonminne.se> and <teflonminne.se>.

B. Respondent

Respondent maintains that neither of the conditions set forth in paragraph 4(a) of the Policy are present in this case.

Respondent argues that Complainant fails to demonstrate in what way the similarity between the Complainant’s trademark and the disputed domain name would give rise to confusion.

Respondent argues that the term “teflonminne” is an established and frequently used word in the Swedish language.

Respondent further asserts that the word “teflon” may be used in other ways than to describe Complainant’s trademark. Respondent holds that several dictionaries categorize the word “teflon” both as a trademark, an adjective, a noun, a part of speech and defining its “metaphoric extention”.

Respondent holds that the domain name is based on a frequently used Swedish word, and that the fact that the word is not included in the SAOL does not authoritatively establish whether or not the word is a part of the Swedish language.

Respondent maintains that he is using the disputed domain name in connection with a personal website, serving principally as Respondent’s private online photo album mostly containing pictures of friends, family and pets. Respondent further holds that he has a right and a legitimate interest in respect of the disputed domain name, because he is making a legitimate non-commercial use of the domain name, without intent for commercial gain to misleadingly divert consumers or tarnish the trademark cf. paragraph 4 (c)(iii) of the Policy.

Respondent holds that the domain name has not been registered and is not being used in bad faith, and that Complainant has not provided evidence for the presence of any of the circumstances mentioned in the Policy, paragraph 4(b).

According to Respondent, the disputed domain name was registered to reflect a Swedish term describing bad memory, and not to cause association with Complainant’s trademark.

Respondent further maintains that the use and content of the website connected to the disputed domain name does not cause any association with, or disrupt the business of, Complainant, or in other ways constitute bad faith according to paragraph 4(b) of the Policy.

In addition Respondent informs that he does not know the owner of the domain names <drf.teflonminne.se> and <teflonminne.se>.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The domain name at issue is not identical to Complainant’s trademark, and the question is therefore whether there is a confusing similarity between the disputed domain name and Complainant’s trademark.

The disputed domain name consists of the Complainant’s TEFLON trademark, with the addition of the Swedish term “minne” and the generic top level domain denominator “.org”.

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 first issue only concerns the part of the disputed domain name which consist of “teflonminne”.

According to the Parties the term “minne” is a word used in Swedish, similar to the English term “memory”.

Respondent has sought to show that the word “teflonminne” is a recognized and used concept in the Swedish language used to describe bad memory. Further, Respondent argues that the term “teflon” is used in a descriptive sense, and not only to describe Complainant’s trademark and non stick cook ware. Thus, Respondent is of the opinion that there is no danger that the disputed domain name will be confused with Complainant’s trademark.

However, in this case the addition of the term “minne” to Complainant’s trademark to form the word “teflonminne”, will normally only be understood by Swedish speaking Internet users. In regards to non-Swedish speaking Internet users, which constitute the large majority of Internet users, the meaning of the addition “minne”, and thus the metaphorical meaning of the word “teflonminne”, will elude them. For these Internet users the only remaining distinctive element of the disputed domain name will be the term “teflon”, which is identical to the Complainant’s trademark.

Based on the above, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.

B. Rights or Legitimate Interests

The basis for Complainant’s assertion that Respondent lacks rights or legitimate interest in the disputed domain name is the fact that the TEFLON trademark is well known and therefore has an extensive legal protection, and that Respondent does not have any trademark registration or other rights which corresponds to the disputed domain name.

The Panel finds the website connected to the disputed domain name to be a personal site constituting a non-commercial use cf. paragraph 4(c)(iii) of the Policy. There is no mention or reference to the trademark TEFLON or products related to or competing with Complainant’s products anywhere on the website.

Complainant has not provided any evidence to the fact that Respondent is using the disputed domain name to tarnish Complainant, its products or its trademark cf. paragraph 4(c)(iii) of the Policy.

Further, Complainant has not provided any evidence proving that Respondent is using the disputed domain name to misleadingly divert Internet users for intent for commercial gain cf. paragraph 4(c)(iii) of the Policy.

In the Panel’s view Respondent has successfully provided evidence to the fact that the term “teflon” when combined with other words in the Swedish language, at least to some extent, may be used in other ways than to describe Complainant’s trademark or products. On the basis of the evidence provided by Respondent, the Panel considers the term “teflonminne” to be recognized and used concept in the Swedish language, describing bad memory.

On this basis the Panel finds it more likely than not that Respondent has rights and legitimate interests to the domain name in question.

As a result the Panel finds that Complainant, who has the burden of proof, has failed to show that Respondent lacks rights or legitimate interests in the contested domain name, and accordingly the Panel finds that Complainant has not met the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

As already mentioned the Panel finds it evidenced that the term “teflonminne”, which forms the relevant part of the disputed domain name, constitutes a descriptive term in the Swedish language, and has no reason to doubt that Respondent did not have Complainant’s trademark in mind when registering the disputed domain name.

Further, the Panel finds it evidenced that Respondent is not using the disputed domain name for commercial gain, and Complainant has not rendered as probable any of the circumstances held out in paragraph 4(b) of the Policy as evidence of registration and use in bad faith.

Based on the above the Panel finds that the disputed domain name is not registered and used in bad faith.

 

7. Decision

For all the foregoing reasons, the Complaint is denied.


Peter G. Nitter
Sole Panelist

Dated: April 18, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0266.html

 

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