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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Thisted Forsikring G/S v. Jiao Yun Yan

Case No. D2008-1920

1. The Parties

The Complainant is Thisted Forsikring G/S of Denmark, represented by DAHL Advokatfirma, Denmark.

The Respondent is Jiao Yun Yan of Beijing, People’s Republic of China.

2. The Domain Name and Registrar

The disputed domain name <thistedforsikring.com> (the “Domain Name”) is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) in hard copy on December 16, 2008, against Ole Toft of Denmark.

The Center transmitted its request for registrar verification to the Registrar on December 17, 2008. The Registrar responded on December 23, 2008, stating that it had not received a copy of the Complaint, that it was the Registrar of the Domain Name, but that the respondent identified in the Complaint was not the registrant. The Registrar provided the full contact details in respect of the Domain Name held on its WhoIs database. The Registrar confirmed that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied to the Domain Name, that the registration would expire on September 28, 2009, that the Domain Name had been placed and would remain on registrar lock during this proceeding, that the registration was effected in English and that the registrant had submitted to the jurisdiction at the location of its principal office for court adjudication of disputes concerning or arising from use of the Domain Name.

The Center informed the Complainant by email on December 23, 2008, that the Complaint was formally deficient in that it had not been submitted in electronic format and that the person specified in the Complaint as the Respondent was not recorded as the registrant according to the information received from the Registrar.

The Complainant submitted by email on January 15, 2009, an electronic copy of the Complaint modified to specify Jiao Yun Yan, of Beijing, China, as the Respondent. In the covering letter, the Complainant’s representative stated that Ole Toft was the registrant of the Domain Name when the Complaint was prepared and sent, but that the registrant of the Domain Name had been changed to Jiao Yun Yan the day after the Complaint was sent to the Respondent. The letter alleged that Jiao Yun Yan’s ownership of the Domain Name was “pro forma” and only served to harass the Complainant. The letter also said that Ole Toft had applied to register “Thisted Forsikring G/S” as a trademark and that the Complainant was seeking to prosecute him.

The Center verified that the amended Complaint satisfied the formal requirements of the UDRP, 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 21, 2009. In accordance with paragraph 5(a) of the Rules, the due date for Response was February 10, 2009. The Respondent sent a letter responding to the Complaint attached to an email to the Center on February 10, 2009.

The Center appointed Jonathan Turner as the sole panelist in this matter on February 19, 2009. 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 paragraph 7 of the Rules.

4. Procedural Rulings

In accordance with paragraph 4(c) of the Rules, a proceeding under the UDRP is commenced when, inter alia, the complaint is forwarded by the dispute resolution service provider to the respondent. In this case the Complaint was forwarded by the Center to Jiao Yun Yan after he was registered as the owner of the Domain Name. The Panel therefore finds that Jiao Yun Yan is the correct Respondent and that the Complaint was correctly forwarded to him, even though Ole Toft was the registrant when the Complaint was prepared and sent to the Center.

The Complainant’s representative’s letter of January 15, 2009, contains relevant information which should have been included in an amended Complaint. Although it does not comply with the formal requirements for a complaint, the Panel has decided to admit it so that the Panel can take a properly informed decision in the case. However, the Panel will take into account the non-compliance with the Rules (and in particular the lack of certification of its completeness and accuracy) in assessing the weight to be attached to it.

The Respondent’s letter sent to the Center on February 10, 2009 does not comply with the formal requirements for a Response. Again, the Panel has decided to admit it, but will take the non-compliance into account in assessing its weight.

Under paragraph 18(a) of the Rules, in the event that legal proceedings in respect of a domain name dispute are initiated during a proceeding under the UDRP in respect of that domain name, the Panel has a discretion to suspend the UDRP proceeding or to proceed to a decision. It appears from the Complainant’s representative’s letter of January 15, 2009, that related legal proceedings have been or may be about to be instituted in Denmark, although their precise nature and ambit has not been specified. However, the Panel has decided to proceed to a decision on the Complaint, also noting that any legal proceedings in Denmark does not appear to include and may be ineffective against the Respondent and current registrant, Jiao Yun Yan.

5. Factual Background

The Complainant has provided insurance services under the name “Thisted Forsikring” since September 1, 2005. The Complainant has a website at “www.thistedforsikring.dk”.

Ole Toft registered the Domain Name following the cancellation of his insurance policy with the Complainant. As mentioned above, the Domain Name was transferred to the Respondent after the Complaint in its original form was sent to Ole Toft.

The Domain Name currently resolves to a website containing photographs of a stone grinding factory which appears to be in China.

6. Parties’ Contentions

A. Complainant

The Complainant contends that it has unregistered rights under Danish law in the mark THISTED FORSIKRING by virtue of its use. It further submits that the Domain Name is identical to this mark and likely to produce confusion.

The Complainant states that the Respondent has no rights or legitimate interests in the Domain Name, that he has not made any preparations to use it for offering goods or services, that he is not making any non-commercial or fair use of it, and that it was registered with the purpose of discrediting the Complainant.

The Complainant alleges that the Domain Name was registered and is being used in bad faith by the Respondent. The Complainant states that the Respondent is a former policyholder of the Complainant who registered the Domain Name following a cancellation of his policy in order to prevent the Respondent [sic] from reflecting its mark in a corresponding domain name. The Complainant further contends that by using the Domain Name, the Respondent intentionally attempted to attract for commercial gain Internet users to his website or other online location by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website.

The Complainant seeks a decision that the Domain Name be transferred to it.

B. Respondent

The Respondent states that the Domain Name is not intended to offend the Complainant’s brand or business in Denmark that “Thistedforsikring” has not been registered as a trademark, and that “thisted-forsikring.com” is free if the Complainant wishes to have a “.com” domain name.

7. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

Although the evidence of use provided by the Complainant is meager, the Panel finds that the Complainant has rights in the mark THISTED FORSIKRING. The Panel notes that “Thisted” is the name of a small town in Denmark and that “Forsikring” means “insurance” in Danish. In these circumstances, THISTED FORSIKRING has a fairly high degree of inherent distinctiveness and relatively limited use would suffice to create rights in it.

The Domain Name is effectively identical to this mark. The first requirement of the Policy is satisfied.

B. Rights or Legitimate Interests

The Panel finds that the Respondent has not used the Domain Name in connection with a bona fide offering of goods or services. The stone-cutting factory in the photographs on the website does not appear to trade using the Domain Name or any corresponding name. In any case, it appears that these photographs were posted after notice of the dispute and therefore should not be taken into account under paragraph 4(c)(i) of the Policy. The Respondent does not appear to have made any other bona fide use of the Domain Name or preparations to use it.

It seems clear from the record that the Respondent is not commonly known by the Domain Name and he is not making legitimate non-commercial or fair use of it.

There does not appear to be any other basis on which the Respondent could claim rights or legitimate interests in respect of the Domain Name. The second requirement of the Policy is satisfied.

C. Registered and Used in Bad Faith

The Complainant’s evidence that the Domain Name was registered and is being used in bad faith is not satisfactory. Nevertheless, the undisputed facts that the Domain Name is effectively identical to the Complainant’s name and mark, that it was registered by Ole Toft following the cancellation of his insurance policy with the Complainant, that it was transferred to the Respondent immediately after the Complaint was sent to Ole Toft, and that the Respondent has not made any bona fide use of it, together raise an inference that the Domain Name was registered and is being used in bad faith.

That inference has not been rebutted. In all the circumstances, as disclosed in the case file, the Panel finds that the Domain Name was registered and is being used in bad faith. The third requirement of the Policy is satisfied.

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 Name, <thistedforsikring.com>, be transferred to the Complainant.

Jonathan Turner
Sole Panelist

Dated: February 24, 2009