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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Aspis Liv Fцrsдkrings AB, Aspis Pronia General Insurance Co S.A. v. Microsys, Nikos Konstantinidis

Case No. D2008-0361

 

1. The Parties

Complainants are Aspis Liv Fцrsдkrings AB, of Sweden and Aspis Pronia General Insurance Co S.A., of Greece, represented by Advokatbyrеn Gulliksson AB, Sweden.

Respondent is Microsys, Nikos Konstantinidis, of Sweden.

 

2. The Domain Names and Registrars

The disputed domain names <aspisliv.info> and <aspisliv.net> are registered with GoDaddy.com, Inc.

The disputed domain names <aspis.org> and <aspispronia.com> are 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 March 7, 2008. On March 10, 2008, the Center transmitted by email to GoDaddy.com, Inc. and CSL Computer Service Langenbach GmbH dba Joker.com a request for registrar verification in connection with the domain names at issue.

On March 10, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant of <apisliv.info> and <apisliv.net>, and providing the contact details.

On March 11, 2008, CSL Computer Service Langenbach GmbH dba Joker.com transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant of <apispronia.com> and <apis.org>, 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 March 20, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was April 9, 2008. Respondent requested and was granted an extension until April 14, 2008. The Response was filed with the Center on April 14, 2008.

The Center appointed Peter G. Nitter as the sole panelist in this matter on April 28, 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

Aspis Pronia General Insurance Co S.A is the holding company of the Swedish company Aspis Liv Fцrsдkrings AB. Both Complainants are well-known providers of insurance related services to respectively the Greek and Swedish markets, and can trace their roots back to the foundation of the Greek company Asiap Pronia in 1945. The Swedish branch of Aspis Pronia, Aspis Pronia Life, was created in 1998.

Complainants have rights to the following trademark registrations:

- ASPIS, European Community Trademark Registration No. 005325782;

- ASPIS, Swedish Trademark Registration No. 0382047;

- ASPIS PRONIA, Swedish Trademark Registration No. 0354585.

Complainants are exclusively licensed within their respective territories to use each others trademarks.

Respondent is a former employee of the Swedish branch of Aspis Pronia General Insurance Co S.A.

Respondent is the holder of the following domain names:

- <apsispronia.com> registered on November 9, 1999;

- <aspis.org> registered on May 5, 2003;

- <aspisliv.info> registered on July 17, 2004;

- <aspisliv.net> registered on July 17, 2004.

The disputed domain names are all associated with the same website.

 

5. Parties’ Contentions

A. Complainant

Complainants maintain that all three conditions of paragraph 4(a) of the Policy are present.

Complainants hold that the disputed domains names are identical or confusingly similar to Complainants’ trademarks.

According to the Complainants the fact that the domain names <aspisliv.info> and <aspisliv.net> in addition to the trademark ASPIS also contain the term “liv” further adds to the risk of confusion, as the term “liv” is part of the company name of Aspis Liv Fцrsдkrings AB.

Complainants further hold that Respondent has no rights or legitimate interests in the disputed domain names.

According to Complainants, Respondent is not commonly known by the disputed domain names. Complainants hold that Respondent is using the webpage associated with the disputed domain names to tarnish the trademarks of the Complainants, and that Respondent is not making a legitimate non-commercial use of the disputed domain names.

Complainants are of the opinion that Respondent has registered and is using the disputed domain names in bad faith.

Complainants argue that the disputed domain names have been systematically registered with the purpose of causing confusion between Complainants’ trademarks and the disputed domain names. Complainants also hold that Respondent has offered to transfer the domain names for a payment of in between $230 000 and $300 000 in an effort to extort Complainants.

On this basis Complainants request that the Panel issues a decision that the domain names <aspis.org> and <aspispronia.com> be transferred to Aspis Pronia General Insurance Co. S.A, and that the domain names <aspisliv.info> and <aspisliv.net> be transferred to Aspis Liv Fцrsдkrings AB.

B. Respondent

Respondent admits that the disputed domain names <apsispronia.com> and <aspis.org> are identical or confusingly similar to the Complainants’ trademarks, and that the domain names <aspisliv.info> and <aspisliv.net> are identical or confusingly similar to the Complainants’ domain name <aspisliv.se>.

Respondent also informs that the disputed domain names <aspis.org>, <aspisliv.info> and <aspisliv.net>, which were registered after <aspispronia.com>, were registered due to the Complainant’s Swedish branch changing its name to Aspis Liv Fцrsдkrings AB.

Respondent claims that the use of domains names is made without intention to divert customers and that the website has no commercial benefit. Respondent holds that it is merely making use of its right of freedom of expression.

Respondent explains that the registration and use of the disputed domain names are not part of an effort to tarnish Complainants’ trademarks, as the website associated with the disputed domain names only consist of documents that are not produced by Respondent and which may easily be accessed through other web pages accessible on the Internet.

Respondent holds that the disputed domain names were not registered and are not being used in bad faith. Respondent states that he has not offered to transfer the disputed domain names for a price between $230 000 and $300 000.

Respondent also requests the Panel to make a finding of reverse domain name hijacking as set forth in paragraph 15(e) of the Policy.

 

6. Discussion and Findings

Multiple Complainants

The Complaint names two Complainants. Neither the Policy nor the Rules expressly contemplate multiple complainants. Both Complainants’ contentions and complaints are based on the same set or similar sets of facts, and on the same legal basis.

In the particular context of this case, the Panel is satisfied that the legal interests of both Complainants are such that they may joined as complainants. Thus, it seems appropriate to allow Complainants to proceed with a joint complaint. See e.g. Media West-CPI, Inc., Media West-DMR, Inc., Media West-GMP, Inc., Media West-GSI, Inc., Media West-PNI, Inc., Media West-PNJ, Inc., Media West-SJC, Inc., Media West-NPP, Inc., Cape Publications, Inc., Des Moines Register and Tribune Co., Gannett Satellite Information Network, Inc., Multimedia Holdings Corp., Phoenix Newspapers, Inc., Gannett Co., Inc. v. Unasi, Inc., WIPO Case No. D2005-1336.

Therefore, the Panel accepts the Complaint as submitted.

A. Identical or Confusingly Similar

Both parties agree that the disputed domain names <apsispronia.com> and <aspis.org> are identical or confusingly similar to Complainants registered trademarks.

The two other disputed domain names consists of Complainants’ ASPIS trademark and the generic top level domain denominators “.org” and “.info”, with the addition of the term “liv”.

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 names which consists of “aspisliv”.

The first part of the “aspisliv” domain names, “aspis”, is similar to Complainants’ trademark.

The term “liv”, which constitutes the last part of the domain names, also forms part of the company name of Complainant Aspis Liv Fцrsдkrings AB.

Further, the disputed domain names containing the term “aspisliv” are similar to Complainants’ domain name under the Swedish domain denominator “.se”, <aspisliv.se>.

In the Panel’s view an Internet user or consumer viewing the term “aspisliv” is likely to confuse the term with Complainants’ trademarks.

The Panel finds in light of the above that the disputed domain names are identical or confusingly similar to Complainants trademarks, as set forth in the Policy, paragraph 4 (a)(i).

B. Rights or Legitimate Interests

The question concerns Respondent’s claim of rights or legitimate interests in the disputed domain names.

Respondent has not claimed to have received any license or consent to use Complainants’ names or trademarks in a domain name or in any other manner.

Further, the Panel finds that Respondent has not been commonly known by the domain names.

The Panel finds that Respondent is using the disputed domain name to criticize Complainant and other companies in Complainants’ group, by providing information on i.a. lawsuits involving Complainants and other companies connected to Complainants.

The Panel recognizes Respondent’s right to criticize Complainant and to freedom of expression. However these rights do not extend to registering domain names that are identical or confusingly similar to Complainants’ registered trademarks, or that conveys an association with these marks, ref. WIPO Overview section 2.4.

Further, the use of the disputed domain names does not form a necessary part of the Respondents critic or freedom of expression.

The Panel agrees with the assessment made in Skattedirektoratet v. Eivind Nag, WIPO Case No. D2000-1314:

“The Panel accepts that it is, in principle, legitimate to operate a domain name for the purposes of lawful criticism of a trademark owner. The Panel does not, however, believe that this right extends to occupying a domain name identical to a sign identifying a trademark owner. In particular, the Panel believes that anyone wishing to contact a trademark owner, has the right to contact the owner by addressing himself to the owner’s exact identifier, followed by the top level suffix, in this case .com, and to thereby reach the trademark owner, and not a third party, which itself does not have rights in that mark.”

Based on the above the Panel finds that Respondent does not have any rights or legitimate interests in the disputed domain names.

C. Registered and Used in Bad Faith

The parties do not agree on whether Respondent has attempted to sell the disputed domain names to Complainants. Both parties fail produce any evidence in any direction. As the burden of proof lies with Complainants in this matter, the Panel does not find it evidenced that Respondent has made an attempt to sell the disputed domain names to Complainant.

According to the information provided by Respondent, the website associated with the disputed domain names is created by a group of people consisting of customers, brokers and employees of the former Swedish branch of Aspis Pronia General Insurance Co. S.A.

On this basis the Panel finds it unlikely that Respondent was unaware of Complainant’s trademarks when registering the disputed domain names.

Further, Respondent claims to have registered the domain name <aspispronia.com> because it refers to the company “Aspis Pronia”. Respondent also admits that the registrations of <aspis.org>, <aspisliv.net> and <aspisliv.info>, which in time were registered after <aspispronia.com>, were due to Complainant’s Swedish branch changing its name to Aspis Liv Fцrsдkrings AB. In the Panel’s view this provides evidence to the fact that Respondent has engaged in a pattern of conduct of registering domain names likely to cause confusion with Complainants’ or their trademarks, and thus preventing Complainants’ from reflecting its trademarks in corresponding domains names.

The Panel also finds that Respondent has registered and used the disputed domain names with the intention of attracting as many Internet users as possible due to the confusing similarity between the domain names and the Complainants’ trademarks.

The Panel thus finds that Respondent has registered and is using the disputed domain names in bad faith.

 

7. Reverse domain name hijacking

Respondent suggests that Complainants are guilty of Reverse Domain Name Hijacking. Reverse Domain Name Hijacking is defined in paragraph 15(e) of the Rules as filing the complaint “in bad faith, for example in an attempt to harass the domain-name holder.” The Panel cannot find any basis for this accusation.

The Panel therefore concludes that this is not a case of Reverse Domain Name Hijacking.

 

8. 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 names <aspis.org> and <aspispronia.com> be transferred to Aspis Pronia General Insurance Co. S.A, and that the domain names <aspisliv.info> and <aspisliv.net> be transferred to Aspis Liv Fцrsдkring AB.


Peter G. Nitter
Sole Panelist

Dated: May 15, 2008.

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0361.html

 

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