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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Schur International A/S v. Jorge Massa

Case No. D2009-0450

1. The Parties

The Complainant is Schur International A/S of Horsens, Denmark, represented by Gorrissen Federspiel Kierkegaard of Denmark.

The Respondent is Jorge Massa of Buenos Aires, Argentina.

2. The Domain Name and Registrar

The disputed domain name <drop-stop.com> is registered with SRSplus.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 6, 2009. On April 7, 2009, the Center transmitted by email to SRSPlus a request for registrar verification in connection with the disputed domain name. On April 7, 2009, Network Solutions, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Network Solutions, LLC also confirmed that SRSPlus, the Registrar of the domain name <drop-stop.com>, is a wholly owned subsidiary of Network Solutions, LLC. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on April 14, 2009. 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" or "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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 16, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was May 6, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent`s default on May 8, 2009.

The Center appointed Jonathan Agmon as the sole panelist in this matter on May 13, 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 the Rules, paragraph 7.

4. Factual Background

The Complainant is a Danish limited liability company, incorporated in Denmark with its principle place of business in Horsens, Denmark.

The Complainant has created and patented a wine pourer, designed to prevent users from spilling wine while pouring it to a glass. The Complainant is marketing its wine pourers under the name DROPSTOP in over 40 countries.

The Complainant is the owner of a large number of stylized handwritten form trademarks for the term DROPSTOP around the world. For example, the Complainant is the owner of Australian trademark registration No. B584204 – DropStop (stylized) with the registration date of August 12, 1992, Canadian trademark registration No. TMA495,809 – DROPSTOP (stylized) with the registration date of June 10, 1998, Community trademark registration No. 1194406 – DROPSTOP (stylized) with the registration date of October 17, 2000 and many more.

The Complainant is also the owner of several domain names that are consisting or including of the wording "dropstop". For example, <dropstop.com>, <dropstop.dk>, <drop-stop.dk>, <dropstop.eu> and <drop-stop.eu>.

The Respondent registered the disputed domain name <drop-stop.com> on March 14, 2005. The disputed domain name is being used to automatically lead consumers to another website "http://tds.com.ar/drop-stop" on which there are offered wine pourers similar to the ones offered on the Complainant`s websites.

5. Parties` Contentions

A. Complainant

The Complainant argues that the disputed domain name is identical or confusingly similar to the DROPSTOP trademarks, in which the Complainant has rights. The Complainant further argues that the addition of the hyphen is not a distinguishing factor and is not sufficient to avoid confusion between the disputed domain name and the trademarks owned by the Complainant.

The Complainant further argues that the Respondent has no legitimate interest in the disputed domain name and has not acquired any trademark rights that would indicate otherwise. The Complainant further states that it has not provided the Respondent with a license or otherwise authorized the Respondent to use its DROPSTOP trademark.

The Complainant further argues that the Respondent`s use of the disputed domain name is aimed to obtain commercial gain by diverting Internet users to the Respondent`s website. In addition, the Complainant argues that by creating a likelihood of confusion with the Complainant`s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent`s website or products, the Respondent acts in bad faith.

The Complainant further argues that the use of the Complainants distinctive trademark for quasi identical goods indicates bad faith on behalf of the Respondent.

For all of the above reasons, the Complainant requests the transfer of the disputed domain name.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The Complainant`s trademarks are registered in various jurisdictions around the world. For example, the Complainant is the owner of Australian trademark registration No. B584204 – DROPSTOP (stylized) with the registration date of August 12, 1992, Canadian trademark registration No. TMA495,809 – DROPSTOP (stylized) with the registration date of June 10, 1998, Community trademark registration No. 1194406 – DROPSTOP (stylized) with the registration date of October 17, 2000 and many more.

The disputed domain name <drop-stop.com> differs from the registered DROPSTOP marks by the additional hyphen between the word "drop" and the word "stop".

Previous WIPO Panels have found that the deletion or addition of one letter or of a hyphen is an insignificant change for the purposes of Policy paragraph 4(a)(i). See Toilets.com, Inc. v. Port-A-John, WIPO Case No. D2007-1497.

The Complainant has established it owns a large number of registered trademarks in respect of DROPSTOP. The domain name <drop-stop.com> is clearly similar to these trademarks. The fact that the Complainant owns stylized trademarks, rather than block word trademarks, cannot create, in this case, a sufficient change for the purposes of Policy paragraph 4(a)(i). See Mrs. AgnГЁs Troublé v. Chan AERO, WIPO Case No. D2006-1399.

Consequently, the Panel finds that the Complainant has shown that the disputed domain name is identical or confusingly similar to the trademarks in which the Complainant has rights.

B. Rights or Legitimate Interests

Once the Complainant has established a prima facie case that the Respondent lack rights or legitimate interests in the disputed domain name, the burden shifts to the Respondent to show that he has rights or legitimate interests in respect to the disputed domain name.

In the present case the Complainant alleged that the Respondent has no rights or legitimate interests in respect of the domain name and the Respondent had failed to assert any such rights.

The Panel finds the Complainant has established such prima facie case inter alia due to the fact that the Complainant has not licensed or otherwise permitted the Respondent to use the DROPSTOP trademark, or a variation thereof. The Respondent has not submitted a Response and has not provided any evidence to show he has any rights or legitimate interests in the disputed domain name.

Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

C. Registered and Used in Bad Faith

The Complainant must show that the Respondent registered and is using the disputed domain name in bad faith (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may prove bad faith under paragraph 4(a)(iii).

It is suggestive of the Respondent`s bad faith that the trademark of the Complainant was registered long before the registration of the disputed domain name. The Complainant submitted evidence, which shows that the Complainant`s trademark – DROPSTOP is registered in different territories around the world and is known in the wine business and that its trademark would be recognized publicly. The Complainant`s DROPSTOP trademark was registered as early as 1992 in Australia (see Australian trademark registration No. B584204 – DROPSTOP (stylized) with the registration date of August 12, 1992). The Respondent registered the disputed domain name long after the Complainant registered its DROPSTOP trademarks.

Paragraph 4(b)(iv) of the Policy provides that it will be considered bad faith registration and use if the respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to the web site or other on-line location to which the disputed domain name is resolved to, by creating a likelihood of confusion with the complainant`s mark as to the source, sponsorship, affiliation, or endorsement of the web site or location or of a product or service on the web site or location to which the disputed domain name is resolved to.

A review of the web site operating under the disputed domain name reveals it automatically leads consumers to another website – "http://tds.com.ar/drop-stop" – on which the consumers are offered wine pourers that are similar to the ones offered by the Complainant in the Complainant`s website under the name "Dropstop". The Respondent`s use of the name "dropstop" to promote such similar wine pourers clearly evidences that the Respondent registered the disputed domain name with knowledge of the Complainant and the DROPSTOP trademark and product. Respondent`s actions constitute bad faith. See Herbalife International, Inc v. Surinder S. Farmaha, WIPO Case No. D2005-0765, stating that "the registration of a domain name with the knowledge of the complainant`s trademark registration amounts to bad faith".

In light of the Complainant`s distinctive registered trademark, the Panel finds that the registration of the disputed domain name in the name of the Respondent shows the Respondent intent to operate a web site offering similar goods and by doing so, creating likelihood that Internet users would be confused and identify the Respondent as either the source of the Complainant goods or associate the Respondent with the Complainant. The use of the Complainants distinctive trademark for quasi identical goods constitute bad faith on behalf of the Respondent.

Accordingly, having regard to the circumstances of this particular case, the Panel finds that the Complainant has met its burden of proof under paragraph 4(a)(iii) of the Policy.

It is therefore the finding of the Panel that the Respondent registered and is using the disputed domain name 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 disputed domain name <drop-stop.com> be transferred to the Complainant.


Jonathan Agmon

Sole Panelist

Dated: May 25, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2009/d2009-0450.html

 

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